POSIT Jects Within 7 Days, He Or She Shall Be Deemed to Have Concurred in the Deci- AUTHORITY: Sec

Immigration and Naturalization Service, Justice § 213.1

Commissioner of the submission of a States, the LEA shall ensure departure Form I–854. from the United States and so inform (b) Termination of parole—(1) General. the district director in whose jurisdic- The Commissioner may terminate pation the alien has last resided. The dis- role for any alien (including a member trict director, if necessary, shall over- of the alien’s family) in parole status see the alien’s departure from the Unit- under this section where termination is ed States and, in any event, shall no- in the public interest. A district direc- tify the Commissioner of the alien’s de- tor may also terminate parole when, in parture. The Commissioner shall be no- the district director’s opinion, termi- tified in writing of the failure of any nation is in the public interest and cir- alien authorized parole under this cumstances do not reasonably permit paragraph to depart in accordance with referral of the case to the Commis- an order of exclusion and deportation sioner. In such a case, the Commis- entered after parole authorized under sioner shall be notified immediately. In this paragraph has been terminated. the event the Commissioner, or in the (d) Failure to comply with procedures. appropriate case, a district director, Any failure to adhere to the parole pro- decides to terminate the parole of a cedures contained in this section shall alien witness or informant authorized immediately be brought to the atten- under the terms of this paragraph, the tion of the Commissioner, who will no- Assistant Attorney General, Criminal tify the Attorney General. Division, and the relevant LEA shall be notified in writing to that effect. The [60 FR 44265, Aug. 25, 1995] Assistant Attorney General, Criminal Division, shall concur in or object to PART 213—ADMISSION OF ALIENS that decision. Unless the Assistant At- ON GIVING BOND OR CASH DE- torney General, Criminal Division, ob- POSIT jects within 7 days, he or she shall be deemed to have concurred in the deci- AUTHORITY: Sec. 103, 66 Stat. 173; 8 U.S.C. sion. In the event of an objection by 1103. the Assistant Attorney General, Crimi- nal Division, the matter will be expedi- § 213.1 Admission under bond or cash tiously referred to the Deputy Attor- deposit. ney General for a final resolution. In The district director having jurisdic- no circumstances shall the alien or the tion over the intended place of resi- relevant LEA have a right of appeal dence of an alien may accept a public from any decision to terminate parole. charge bond prior to the issuance of an (2) Termination of parole and admission immigrant visa to the alien upon rein S classification. When an LEA has ceipt of a request directly from a Unit- filed a request for an alien in author- ed States consular officer or upon pres- ized parole status to be admitted in S entation by an interested person of a nonimmigrant classification and that notification from the consular officer request has been approved by the Com- requiring such a bond. Upon acceptance missioner pursuant to the procedures of such a bond, the district director outlines in 8 CFR 214.2(t), the Commis- shall notify the U.S. consular officer sioner may, in the exercise of discre- who requested the bond, giving the tion: date and place of acceptance and the (i) Terminate the alien’s parole sta- amount of the bond. The district direc- tus; tor having jurisdiction over the place (ii) Determine eligibility for waivers; where the examination for admission is and being conducted or the special inquiry (iii) Admit the alien in S non- officer to whom the case is referred immigrant classification pursuant to may exercise the authority contained the terms and conditions of section in section 213 of the Act. All bonds and 101(a)(15(S) of the Act and 8 CFR agreements covering cash deposits 214.2(t). given as a condition of admission of an (c) Departure. If the alien’s parole has alien under section 213 of the Act shall been terminated and the alien has been be executed on Form I–352 and shall be ordered excluded from the United in the sum of not less than $1,000. The

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officer accepting such deposit shall (v) Section 101(a)(15)(K) is divided give his receipt therefor on Form I–305. into (K)(i) for the fiance(e) and (K)(ii) For procedures relating to bond riders, for the fiance(e)’s children; and acceptable sureties, cancellation or (vi) Section 101(a)(15)(L) is divided breaching of bonds, see part 103 of this into (L)(i) for principal aliens and chapter. (L)(ii) for such alien’s spouse and children. [29 FR 10579, July 30, 1964, as amended at 32 (2) Classification designations. For the FR 9626, July 4, 1967] purpose of this chapter the following nonimmigrant designations are estab- PART 214—NONIMMIGRANT lished. The designation in the second CLASSES column may be used to refer to the appropriate nonimmigrant classification. Sec. 214.1 Requirements for admission, exten- Section Designation sion, and maintenance of status. 101(a)(15)(A)(i) ...... A±1. 214.2 Special requirements for admission, 101(a)(15)(A)(ii) ...... A±2. extension, and maintenance of status. 101(a)(15)(A)(iii) ...... A±3. 214.3 Petitions for approval of schools. 101(a)(15)(B)(i) ...... B±1. 214.4 Withdrawal of school approval. 101(a)(15)(B)(ii) ...... B±2. 101(a)(15)(C)(i) ...... C±1. 214.5 Libyan and third country nationals 101(a)(15)(C)(ii) ...... C±2. acting on behalf of Libyan entities. 101(a)(15)(C)(iii) ...... C±3. 214.6 Canadian and Mexican citizens seeking 101(a)(15)(D)(i) ...... D±1. temporary entry to engage in business 101(a)(15)(D)(ii) ...... D±2. activities at a professional level. 101(a)(15)(E)(i) ...... E±1. 101(a)(15)(E)(ii) ...... E±2. AUTHORITY: 8 U.S.C. 1101, 1103, 1182, 1184, 101(a)(15)(F)(i) ...... F±1. 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2. 101(a)(15)(F)(ii) ...... F±2. 101(a)(15)(G)(i) ...... G±1. 101(a)(15)(G)(ii) ...... G±2. § 214.1 Requirements for admission, 101(a)(15)(G)(iii) ...... G±3. extension, and maintenance of sta- 101(a)(15)(G)(iv) ...... G±4. tus. 101(a)(15)(g)(v) ...... G±5. 101(a)(15)(H)(i)(A) ...... H±1A. (a) General. (1) Nonimmigrant classes. 101(a)(15)(H)(i)(B) ...... H±1B. For the purpose of administering the 101(a)(15)(H)(ii)(A) ...... H±2A. 101(a)(15)(H)(ii)(B) ...... H±2B. nonimmigrant provisions of the Act, 101(a)(15)(H)(iii) ...... H±3. the following administrative subclassi- 101(a)(15)(H)(iv) ...... H±4. fications of nonimmigrant classifica- 101(a)(15)(I) ...... I. tions as defined in section 101(a)(15) of 101(a)(15)(J)(i) ...... J±1. 101(a)(15)(J)(ii) ...... J±2. the Act are established: 101(a)(15)(K)(i) ...... K±1. (i) Section 101(a)(15)(B) is divided 101(a)(15)(K)(ii) ...... K±2. into (B)(i) for visitors for business and 101(a)(15)(L)(i) ...... L±1. 101(a)(15)(L)(ii) ...... L±2. (B)(ii) for visitors for pleasure; 101(a)(15)(M)(i) ...... M±1. (ii) Section 101(a)(15)(C) is divided 101(a)(15)(M)(ii) ...... M±2. into (C)(i) for aliens who are not dip- 101(a)(15)(N)(i) ...... N±8. 101(a)(15)(N)(ii) ...... N±9. lomats and are in transit through the 101(a)(15)(O)(i) ...... O±1. United States; (C)(ii) for aliens in tran- 101(a)(15)(O)(ii) ...... O±2. sit to and from the United Nations 101(a)(15)(O)(iii) ...... O±3. Headquarters District; and (C)(iii) for 101(a)(15)(P)(i) ...... P±1. 101(a)(15)(P)(ii) ...... P±2. alien diplomats in transit through the 101(a)(15)(P)(iii) ...... P±3. United States; 101(a)(15)(P)(iv) ...... P±4. (iii) Section 101(a)(15)(H) is divided to 101(a)(15)(Q) ...... Q. 101(a)(15)(R)(i) ...... R±1. create an (H)(iv) subclassification for 101(a)(15)(R)(ii) ...... R±2. the spouse and children of a non- 101(a)(15)(S)(i) ...... S±5. immigrant classified under section 101(a)(15)(S)(ii) ...... S±6. 101(a)(15) (H) (i), (ii), or (iii); 101(a)(15)(S) qualified family members .. S±7. Cdn FTA, Professional ...... TC. (iv) Section 101(a)(15)(J) is divided NAFTA, Principal ...... TN. into (J)(i) for principal aliens and NAFTA, Dependent ...... TD. (J)(ii) for such alien’s spouse and chil- Visa Waiver, Business ...... WB. dren; Visa Waiver, Tourist ...... WT.

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(3) General requirements. Every non- (ii) Is applying for readmission after immigrant alien who applies for admis- an absence from the United States not sion to, or an extension of stay in, the exceeding thirty days solely in contig- United States, shall establish that he uous territory or adjacent islands; or she is admissible to the United (iii) Is in possession of a valid pass- States, or that any ground of inadmis- port unless exempt from the require- sibility has been waived under section ment for presentation of a passport; 212(d)(3) of the Act. Upon application and for admission, the alien shall present a (iv) Presents, or is the accompanying valid passport and valid visa unless ei- spouse or child of an alien who pre- ther or both documents have been sents, an Arrival-Departure Record, waived. However, an alien applying for Form I–94, issued to the alien in con- extension of stay shall present a pass- nection with the previous admission or port only if requested to do so by the stay, the alien’s Form I–20 ID copy, and Service. The passport of an alien apply- either: ing for admission shall be valid for a (A) A properly endorsed page 4 of minimum of six months from the expi- Form I–20A–B if there has been no sub- ration date of the contemplated period stantive change in the information on of stay, unless otherwise provided in the student’s most recent Form I–20A this chapter, and the alien shall agree since the form was initially issued; or to abide by the terms and conditions of (B) A new Form I–20A–B if there has his or her admission. The passport of been any substantive change in the in- an alien applying for extension of stay formation on the student’s most recent shall be valid at the time of applica- Form I–20A since the form was initially tion for extension, unless otherwise issued. provided in this chapter, and the alien (2) Section 101(a)(15)(J). The inspecting shall agree to maintain the validity of immigration officer shall readmit for his or her passport and to abide by all the unexpired period of stay authorized the terms and conditions of his exten- prior to the alien’s departure, any non- sion. The alien shall also agree to de- immigrant alien whose nonimmigrant part the United States at the expira- visa is considered automatically revali- tion of his or her authorized period of dated pursuant to 22 CFR 41.125(f) and admission or extension, or upon abandonment of his or her authorized non- who is applying for readmission under immigrant status. At the time a non- section 101(a)(15)(J) of the Act, if the immigrant alien applies for admission alien: or extension of stay he or she shall (i) Is admissible; post a bond on Form I–352 in the sum of (ii) Is applying for readmission after not less than $500, to insure the main- an absence from the United States not tenance of his or her nonimmigrant exceeding thirty days solely in contig- status and departure from the United uous territory or adjacent islands; States, if required to do so by the di- (iii) Is in possession of a valid pass- rector, immigration judge, or Board of port unless exempt from the require- Immigration Appeals. ment for the presentation of a pass- (b) Readmission of nonimmigrants port; and under section 101(a)(15) (F), (J), or (M) to (iv) Presents, or is the accompanying complete unexpired periods of previous spouse or child of an alien who pre- admission or extension of stay—(1) Sec- sents, Form I–94 issued to the alien in tion 101(a)(15)(F). The inspecting immi- connection with the previous admis- gration officer shall readmit for dura- sion or stay or copy three of the last tion of status as defined in Form IAP–66 issued to the alien. Form § 214.2(f)(5)(iii), any nonimmigrant alien I–94 or Form IAP–66 must show the whose nonimmigrant visa is considered unexpired period of the alien’s stay en- automatically revalidated pursuant to dorsed by the Service. 22 CFR 41.125(f) and who is applying for (3) Section 101(a)(15)(M). The inspect- readmission under section 101(a)(15)(F) ing immigration officer shall readmit of the Act, if the alien: for the unexpired period of stay author- (i) Is admissible; ized prior to the alien’s departure, any

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nonimmigrant alien whose non- or her status. Extensions granted to immigrant visa is considered automati- members of a family group must be for cally revalidated pursuant to 22 CFR the same period of time. The shortest 41.125(f) and who is applying for read- period granted to any member of the mission under section 101(a)(15)(M) of family shall be granted to all members the Act, if the alien: of the family. (i) Is admissible; (3) Ineligible for extension of stay. A (ii) Is applying for readmission after nonimmigrant in any of the following an absence not exceeding thirty days classes is ineligible for an extension of solely in contiguous territory; stay: (iii) Is in possession of a valid pass- (i) B–1 or B–2 where admission was port unless exempt from the require- pursuant to the Visa Waiver Pilot Pro- ment for presentation of a passport; gram; and (ii) C–1, C–2, C–3; (iv) Presents, or is the accompanying (iii) D–1, D–2; spouse or child of an alien who pre- (iv) K–1, K–2; sents, Form I–94 issued to the alien in (v) Any nonimmigrant admitted for connection with the previous admis- duration of status, other than as pro- sion or stay, the alien’s Form I–20 ID vided in § 214.2(f)(7); or copy, and a properly endorsed page 4 of (vi) Any nonimmigrant who is classi- Form I–20M–N. fied pursuant to section 101(a)(15)(S) of (c) Extensions of stay—(1) Filing on the Act beyond a total of 3 years. Form I–129. An employer seeking the (4) Timely filing and maintenance of services of an E–1, E–2, H–1A, H–1B, H– status. An extension of stay may not be 2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–2, approved for an applicant who failed to P–3, Q, R–1, or TC nonimmigrant be- maintain the previously accorded sta- yond the period previously granted, tus or where such status expired before must petition for an extension of stay the application or petition was filed, on Form I–129. The petition must be except that failure to file before the pe- filed with the fee required in § 103.7 of riod of previously authorized status ex- this chapter, and the initial evidence pired may be excused in the discretion specified in § 214.2, and on the petition of the Service and without separate ap- form. Dependents holding derivative plication, with any extension granted status may be included in the petition from the date the previously author- if it is for only one worker and the ized stay expired, where it is dem- form version specifically provides for onstrated at the time of filing that: their inclusion. In all other cases de- (i) The delay was due to extraor- pendents of the worker should file on dinary circumstances beyond the con- Form I–539. trol of the applicant or petitioner, and (2) Filing on Form I–539. Any other the Service finds the delay commensu- nonimmigrant alien, except an alien in rate with the circumstances; F or J status who has been granted du- (ii) The alien has not otherwise vio- ration of status, who seeks to extend lated his or her nonimmigrant status; his or her stay beyond the currently (iii) The alien remains a bona fide authorized period of admission, must nonimmigrant; and apply for an extension of stay on Form (iv) The alien is not the subject of de- I–539 with the fee required in § 103.7 of portation proceedings under 8 CFR part this chapter together with any initial 242. evidence specified in the applicable (5) Decision in Form I–129 or I–539 ex- provisions of § 214.2, and on the applica- tension proceedings. Where an applicant tion form. More than one person may or petitioner demonstrates eligibility be included in an application where the for a requested extension, it may be co-applicants are all members of a sin- granted at the discretion of the Serv- gle family group and either all hold the ice. There is no appeal from the denial same nonimmigrant status or one of an application for extension of stay holds a nonimmigrant status and the filed on Form I–129 or I–539. other co-applicants are his or her (d) Termination of status. Within the spouse and/or children who hold deriva- period of initial admission or extension tive nonimmigrant status based on his of stay, the nonimmigrant status of an

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alien shall be terminated by the rev- a failure to maintain status under sec- ocation of a waiver authorized on his tion 241(a)(1)(C)(i) of the Act. or her behalf under section 212(d) (3) or [26 FR 12067, Dec. 16, 1961, as amended at 36 (4) of the Act; by the introduction of a FR 8048, Apr. 29, 1971; 37 FR 14288, June 19, private bill to confer permanent resi- 1972; 43 FR 12674, Mar. 27, 1978; 44 FR 65727, dent status on such alien; or, pursuant Nov. 14, 1979; 48 FR 14582, Apr. 5, 1983; 48 FR to notification in the FEDERAL REG- 20685, May 9, 1983; 48 FR 30350, July 1, 1983; 52 ISTER, on the basis of national security, FR 45446, Nov. 30, 1987; 56 FR 38333, Aug. 13, diplomatic, or public safety reasons. 1991; 59 FR 1463, Jan. 11, 1994; 60 FR 44266, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995] (e) Employment. A nonimmigrant in the United States in a class defined in § 214.2 Special requirements for ad- section 101(a)(15)(B) of the Act as a mission, extension, and mainte- temporary visitor for pleasure, or sec- nance of status. tion 101(a)(15)(C) of the Act as an alien The general requirements in § 214.1 in transit through this country, may are modified for the following non- not engage in any employment. Any immigrant classes: other nonimmigrant in the United (a) Foreign government officials—(1) States may not engage in any employ- General. The determination by a con- ment unless he has been accorded a sular officer prior to admission and the nonimmigrant classification which au- recognition by the Secretary of State thorizes employment or he has been subsequent to admission is evidence of granted permission to engage in em- the proper classification of a non- ployment in accordance with the provi- immigrant under section 101(a)(15)(A) sions of this chapter. A nonimmigrant of the Act. An alien who has a non- who is permitted to engage in employ- immigrant status under section ment may engage only in such employ- 101(a)(15)(A)(i) or (ii) of the Act is to be ment as has been authorized. Any un- admitted for the duration of the period authorized employment by a non- for which the alien continues to be rec- immigrant constitutes a failure to ognized by the Secretary of State as maintain status within the meaning of being entitled to that status. An alien section 241(a)(1)(C)(i) of the Act. defined in section (101)(a)(15)(A)(iii) of (f) False information. A condition of a the Act is to be admitted for an initial nonimmigrant’s admission and contin- period of not more than three years, ued stay in the United States is the and may be granted extensions of tem- full and truthful disclosure of all infor- porary stay in increments of not more mation requested by the Service. Will- than two years. In addition, the appli- ful failure by a nonimmigrant to pro- cation for extension of temporary stay vide full and truthful information re- must be accompanied by a statement quested by the Service (regardless of signed by the employing official stat- whether or not the information re- ing that he/she intends to continue to quested was material) constitutes a employ the applicant and describing failure to maintain nonimmigrant sta- the type of work the applicant will per- tus under section 241(a)(1)(C)(i) of the form. Act. (2) Definition of A–1 or A–2 dependent. (g) Criminal activity. A condition of a For purposes of employment in the nonimmigrant’s admission and contin- United States, the term dependent of an ued stay in the United States is obedi- A–1 or A–2 principal alien, as used in ence to all laws of United States juris- § 214.2(a), means any of the following dictions which prohibit the commission immediate members of the family ha- of crimes of violence and for which a bitually residing in the same household sentence of more than one year impris- as the principal alien who is an officer onment may be imposed. A non- or employee assigned to a diplomatic immigrant’s conviction in a jurisdic- or consular office in the United States: tion in the United States for a crime of (i) Spouse; violence for which a sentence of more (ii) Unmarried children under the age than one year imprisonment may be of 21; imposed (regardless of whether such (iii) Unmarried sons or daughters sentence is in fact imposed) constitutes under the age of 23 who are in full-time

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attendance as students at post-second- (5) Dependent employment pursuant to ary educational institutions; formal bilateral employment agreements (iv) Unmarried sons or daughters and informal de facto reciprocal arrange- under the age of 25 who are in full-time ments. (i) The Office of Protocol shall attendance as students at post-second- maintain a listing of foreign states ary educational institutions if a formal which have entered into formal bilat- bilateral employment agreement per- eral employment agreements. Depend- mitting their employment in the Unit- ents of an A–1 or A–2 principal alien as- ed States was signed prior to November signed to official duty in the United 21, 1988, and such bilateral employment States may accept or continue in unre- agreement does not specify 23 as the stricted employment based on such for- maximum age for employment of such mal bilateral agreements upon favor- sons and daughters. The Office of Pro- able recommendation by the Depart- tocol of the Department of State shall ment of State and issuance of employ- maintain a listing of foreign states ment authorization documentation by with which the United States has such the Service in accordance with 8 CFR bilateral employment agreements; part 274a. The application procedures (v) Unmarried sons or daughters who are set forth in paragraph (a)(6) of this are physically or mentally disabled to section. the extent that they cannot adequately (ii) For purposes of this section, an care for themselves or cannot estab- informal de facto reciprocal arrange- lish, maintain or re-establish their own ment exists when the Department of State determines that a foreign state households. The Department of State allows appropriate employment on the or the Service may require certifi- local economy for dependents of cer- cation(s) as it deems sufficient to docu- tain United States officials assigned to ment such mental or physical disabil- duty in that foreign state. The Office of ity. Protocol shall maintain a listing of (3) Applicability of a formal bilateral countries with which such reciprocity agreement or an informal de facto ar- exists. Dependents of an A–1 or A–2 rangement for A–1 or A–2 dependents. principal alien assigned to official duty The applicability of a formal bilateral in the United States may be authorized agreement shall be based on the foreign to accept or continue in employment state which employs the principal alien based upon informal de facto arrange- and not on the nationality of the prin- ments upon favorable recommendation cipal alien or dependent. The applica- by the Department of State and issu- bility of an informal de facto arrange- ance of employment authorization by ment shall be based on the foreign the Service in accordance with 8 CFR state which employs the principal part 274a. Additionally, the procedures alien, but under a de facto arrange- set forth in paragraph (a)(6) of this sec- ment the principal alien also must be a tion must be complied with, and the national of the foreign state which em- following conditions must be met: ploys him/her in the United States. (A) Both the principal alien and the (4) Income tax, Social Security liability; dependent desiring employment are non-applicability of certain immunities. maintaining A–1 or A–2 status as ap- Dependents who are granted employ- propriate; ment authorization under this section (B) The principal’s assignment in the are responsible for payment of all fed- United States is expected to last more eral, state and local income, employ- than six months; ment and related taxes and Social Se- (C) Employment of a similar nature curity contributions on any remunera- for dependents of United States Gov- tion received. In addition, immunity ernment officials assigned to official from civil or administrative jurisdic- duty in the foreign state employing the tion in accordance with Article 37 of principal alien is not prohibited by the Vienna Convention on Diplomatic that foreign state’s government; Relations or other international agree- (D) The proposed employment is not ments does not apply to these depend- in an occupation listed in the Depart- ents with respect to matters arising ment of Labor Schedule B (20 CFR part out of their employment. 656), or otherwise determined by the

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Department of Labor to be one for ification that the dependent possesses which there is an oversupply of quali- the qualifications for the position. fied U.S. workers in the area of pro- (ii) The Department of State reviews posed employment. This Schedule B re- and verifies the information provided, striction does not apply to a dependent makes its determination, and endorses son or daughter who is a full-time stu- the Form I–566. dent if the employment is part-time, (iii) If the Department of State’s en- consisting of not more than 20 hours dorsement is favorable, the dependent per week, and/or if it is temporary em- may apply to the Service. A dependent ployment of not more than 12 weeks whose principal alien is stationed at a during school holiday periods; and post in Washington, DC, or New York (E) The proposed employment is not City shall apply to the District Direc- contrary to the interest of the United tor, Washington, DC, or New York States. Employment contrary to the City, respectively. A dependent whose interest of the United States includes, principal alien is stationed elsewhere but is not limited to, the employment shall apply to the District Director, of A–1 or A–2 dependents: who have Washington, DC, unless the Service, criminal records; who have violated through the Department of State, di- United States immigration laws or reg- rects the dependent to apply to the dis- ulations, or visa laws or regulations; trict director having jurisdiction over who have worked illegally in the Unit- his or her place of residence. Directors ed States; and/or who cannot establish of the regional service centers may have concurrent adjudicative authority that they have paid taxes and social se- for applications filed within their re- curity on income from current or pre- spective regions. When applying to the vious United States employment. Service, the dependent must present (6) Application procedures. The follow- his or her Form I–566 with a favorable ing procedures are applicable to de- endorsement from the Department of pendent employment applications State and any additional documenta- under bilateral agreements and de tion as may be required by the Attor- facto arrangements: ney General. (i) The dependent must submit a (7) Period of time for which employment completed Form I–566 to the Depart- may be authorized. If approved, an appli- ment of State through the office, mis- cation to accept or continue employ- sion, or organization which employs ment under this section shall be grant- his/her principal alien. A dependent ap- ed in increments of not more than plying under paragraph (a)(2)(iii) or (iv) three years each. of this section must submit a certified (8) No appeal. There shall be no ap- statement from the post-secondary peal from a denial of permission to ac- educational institution confirming cept or continue employment under that he/she is pursuing studies on a this section. full-time basis. A dependent applying (9) Dependents or family members of under paragraph (a)(2)(v) of this section principal aliens classified A–3. A depend- must submit medical certification re- ent or family member of a principal garding his/her condition. The certifi- alien classified A–3 may not be em- cation should identify the dependent ployed in the United States under this and the certifying physician and give section. the physician’s phone number; identify (10) Unauthorized employment. An the condition, describe the symptoms alien classified under section and provide a prognosis; and certify 101(a)(15)(A) of the Act who is not a that the dependent is unable to main- principal alien and who engages in em- tain a home of his or her own. Addi- ployment outside the scope of, or in a tionally, a dependent applying under manner contrary to this section, may the terms of a de facto arrangement be considered in violation of section must attach a statement from the pro- 241(a)(1)(C)(i) of the Act. An alien who spective employer which includes the is classified under section 101(a)(15)(A) dependent’s name; a description of the of the Act who is a principal alien and position offered and the duties to be who engages in employment outside performed; the salary offered; and ver- the scope of his/her official position

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may be considered in violation of sec- that he or she is engaged in one of the tion 241(a)(1)(C)(i) of the Act. occupations or professions set forth in (b) Visitors—(1) General. any B–1 visi- paragraph (b)(4)(i) of this section. Ex- tor for business or B–2 visitor for pleas- isting requirements, with respect to ure may be admitted for not more than Canada, are those requirements which one year and may be granted exten- were in effect at the time of entry into sions of temporary stay in increments force of the CFTA and, with respect to of not more than six months each, ex- Mexico, are those requirements which cept that alien members of a religious are in effect at the time of entry into denomination coming temporarily and force of the NAFTA. Additionally, solely to do missionary work in behalf nothing shall preclude the admission of of a religious denomination may be a citizen of Mexico or Canada who granted extensions of not more than meets the requirements of paragraph one year each, provided that such work (b)(4)(ii) of this section. does not involve the selling of articles (i) Occupations and professions set or the solicitation or acceptance of do- forth in Appendix 1603.A.1 to Annex 1603 nations. Those B–1 and B–2 visitors ad- of the NAFTA—(A) Research and design. mitted pursuant to the waiver provided Technical scientific and statistical re- at § 212.1(e) of this chapter may be ad- searchers conducting independent remitted to and stay on Guam for period search or research for an enterprise lo- not to exceed fifteen days and are not cated in the territory of another Party. eligible for extensions of stay. (B) Growth, manufacture and produc- (2) Minimum six month admissions. Any tion (1) Harvester owner supervising a B–2 visitor who is found otherwise ad- harvesting crew admitted under appli- missible and is issued a Form I–94, will cable law. (Applies only to harvesting be admitted for a minimum period of of agricultural crops: Grain, fiber, fruit six months, regardless of whether less and vegetables.) time is requested, provided, that any (2) Purchasing and production man- required passport is valid as specified agement personnel conducting com- in section 212(a)(26) of the Act. Excep- mercial transactions for an enterprise tions to the minimum six month ad- located in the territory of another mission may be made only in individ- Party. ual cases upon the specific approval of (C) Marketing. (1) Market researchers the district director for good cause. and analyst conducting independent re- (3) Visa Waiver Pilot Program. Special search or analysis, or research or anal- requirements for admission and main- ysis for an enterprise located in the tenance of status for visitors admitted territory of another Party. to the United States under the Visa (2) Trade fair and promotional per- Waiver Pilot Program are set forth in sonnel attending a trade convention. section 217 of the Act and part 217 of (D) Sales. (1) Sales representatives this chapter. and agents taking orders or negotiat- (4) Admission of aliens pursuant to the ing contracts for goods or services for North American Fee Trade Agreement an enterprise located in the territory (NAFTA). A citizen of Canada or Mex- of another Party but not delivering ico seeking temporary entry for pur- goods or providing services. poses set forth in paragraph (b)(4)(i) of (2) Buyers purchasing for an enter- this section, who otherwise meets ex- prise located in the territory of an- isting requirements under section other Party. 101(a)(15)(B) of the Act, including but (E) Distribution. (1) Transportation not limited to requirements regarding operators transporting goods or pas- the source of remuneration, shall be sengers to the United States from the admitted upon presentation of proof of territory of another Party or loading such citizenship in the case of Cana- and transporting goods or passengers dian applicants, and valid entry docu- from the United States to the territory ments such as a passport and visa or of another Party, with no unloading in Mexican Border Crossing Card (Form I– the United States, to the territory of 186 or I–586) in the case of Mexican ap- another Party. (These operators may plicants, a description of the purpose of make deliveries in the United States if entry, and evidence demonstrating all goods or passengers to be delivered

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were loaded in the territory of another tors) attending or participating in con- Party. Furthermore, they may load ventions or conducting a tour that has from locations in the United States if begun in the territory of another all goods or passengers to be loaded Party. (The tour may begin in the will be delivered in the territory of an- United States; but must terminate in other Party. Purely domestic service foreign territory, and a significant por- or solicitation, in competition with the tion of the tour must be conducted in United States operators, is not per- foreign territory. In such a case, an op- mitted.) erator may enter the United States (2) Customs brokers performing bro- with an empty conveyance and a tour kerage duties associated with the ex- guide may enter on his or her own and port of goods from the United States to join the conveyance.) or through Canada. (6) Tour bus operators entering the (F) After-sales service. Installers, re- United States: pair and maintenance personnel, and (i) With a group of passengers on a supervisors, possessing specialized bus tour that has begun in, and will re- knowledge essential to the seller’s con- turn to, the territory of another Party. tractual obligation, performing serv- (ii) To meet a group of passengers on ices or training workers to perform a bus tour that will end, and the pre- services, pursuant to a warranty or dominant portion of which will take other service contract incidental to the place, in the territory of another sale of commercial or industrial equip- Party. ment or machinery, including com- (iii) With a group of passengers on a puter software, purchased from an en- bus tour to be unloaded in the United terprise located outside the United States and returning with no pas- States, during the life of the warranty sengers or reloading with the group for or service agreement. (For the purposes transportation to the territory of an- of this provision, the commercial or in- other Party. dustrial equipment or machinery, in- (7) Translators or interpreters per- cluding computer software, must have forming services as employees of an en- been manufactured outside the United terprise located in the territory of an- States.) other Party. (G) General service. (1) Professionals (ii) Occupations and professions not engaging in a business activity at a listed in Appendix 1603.A.1 to Annex professional level in a profession set 1603 of the NAFTA. Nothing in this out in Appendix 1603.D.1 to Annex 1603 paragraph shall preclude a business of the NAFTA, but receiving no salary person engaged in an occupation or or other remuneration from a United profession other than those listed in States source (other than an expense Appendix 1603.A.1 to Annex 1603 of the allowance or other reimbursement for NAFTA from temporary entry under expenses incidental to the temporary section 101(a)(15)(B) of the Act, if such stay) and otherwise satisfying the re- person otherwise meets the existing requirements of Section A to Annex 1063 quirements for admission as prescribed of the NAFTA. by the Attorney General. (2) Management and supervisory per- (5) Construction workers not admissible. sonnel engaging in commercial trans- Aliens seeking to enter the country to actions for an enterprise located in the perform building or construction work, territory of another Party. whether on-site or in-plant, are not eli- (3) Financial services personnel (in- gible for classification or admission as surers, bankers or investment brokers) B–1 nonimmigrants under section engaging in commercial transactions 101(a)(15)(B) of the Act. However, alien for an enterprise located in the terri- nonimmigrants otherwise qualified as tory of another Party. B–1 nonimmigrants may be issued visas (4) Public relations and advertising and may enter for the purpose of super- personnel consulting with business as- vision or training of others engaged in sociates, or attending or participating building or construction work, but not in conventions. for the purpose of actually performing (5) Tourism personnel (tour and trav- any such building or construction work el agents, tour guides or tour opera- themselves.

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(c) Transits—(1) Without visas. An ap- transportation line, without the prior plicant for admission under the transit consent of the Service, will not refund without visa privilege must establish the ticket which was presented to the that he is admissable under the immi- Service as evidence of the alien’s con- gration laws; that he has confirmed firmed and onward reservations; that and onward reservations to at least the the alien will not apply for extension of next country beyond the United States, temporary stay or for adjustment of and that he will continue his journey status under section 245 of the Act, and on the same line or a connecting line that until his departure from the Unit- within 8 hours after his arrival; how- ed States responsibility for his contin- ever, if there is no scheduled transpor- uous actual custody will lie with the tation within that 8-hour period, con- transportation line which brought him tinuation of the journey thereafter on to the United States unless at the di- the first available transport will be rection of the district director he is in satisfactory. Transfers from the equip- the custody of this Service or other ment on which an applicant arrives to custody approved by the Commis- other equipment of the same or a con- sioner. necting line shall be limited to 2 in (2) United Nations Headquarters Dis- number, with the last transport depart- trict. An alien of the class defined in ing foreign (but not necessarily non- section 101(a)(15)(C) of the Act, whose stop foreign), and the total period of visa is limited to transit to and from waiting time for connecting transpor- the United Nations Headquarters Dis- tation shall not exceed 8 hours except trict, if otherwise admissible, shall be as provided above. Notwithstanding the admitted on the additional conditions foregoing, an applicant, if seeking to that he proceed directly to the imme- join a vessel in the United States as a diate vicinity of the United Nations crewman, shall be in possession of a Headquarters District, and remain valid ‘‘D’’ visa and a letter from the there continuously, departing there- owner or agent of the vessel he seeks to from only if required in connection join, shall proceed directly to the ves- with his departure from the United sel on the first available transpor- States, and that he have a document tation and upon joining the vessel shall establishing his ability to enter some remain aboard at all times until it de- country other than the United States parts from the United States. Except following his sojourn in the United Na- for transit from one part of foreign tions Headquarters District. The imme- contiguous territory to another part of diate vicinity of the United Nations the same territory, application for di- Headquarters District is that area rect transit without a visa must be lying within a twenty-five mile radius made at one of the following ports of of Columbus Circle, New York, NY. entry: Agana, Guam, Anchorage, AK, (3) Others. The period of admission of Atlanta, GA, Baltimore, MD, Bangor, an alien admitted under section ME, Boston, MA, Brownsville, TX, Buf- 101(a)(15)(C) of the Act shall not exceed falo, NY, Charlotte, NC, Charlotte 29 days. Amalie, VI, Chicago, IL, Christiansted, (d) Crewmen. (1) The provisions of VI, Dallas, TX, Daytona, FL, Denver, parts 251, 252, 253, and 258 of this chap- CO, Detroit, MI, Fairbanks, AK, Hart- ter shall govern the landing of crew- ford, CT, Honolulu, HI, Houston, TX, men as nonimmigrants of the class de- Los Angeles, CA, Memphis, TN, Miami, fined in section 101(a)(15)(D) of the Act. FL, Newark, NJ, New Orleans, LA, New An alien in this status may be em- York, NY, Niagara Falls, NY, Norfolk, ployed only in a crewman capacity on VA, Oakland, CA, Orlando, FL, Phila- the vessel or aircraft of arrival, or on a delphia, PA, Pittsburgh, PA, Ponce, vessel or aircraft of the same transpor- PR, Port Everglades FL, Portland, OR, tation company, and may not be em- San Antonio, TX, San Diego, CA, San- ployed in connection with domestic ford, FL, San Francisco, CA, San Juan, flights or movements of a vessel or air- PR, Seattle, WA, St. Paul, MN, Tampa, craft. However, nonimmigrant crew- FL, Washington, DC. The privilege of men may perform crewmember duties transit without a visa may be author- through stopovers on an international ized only under the conditions that the flight for any United States carrier

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where such flight uses a single aircraft year preceding the date that a strike or and has an origination or destination lawful lockout commenced; point outside the United States. (2) Has served as a qualified crewman (2) Denial of crewman status in the case for such employer at least once in of certain labor disputes (D non- three different months during the 12- immigrants). (i) An alien shall be denied month period preceding the date that D crewman status as described in sec- the strike or lockout commenced; and tion 101(a)(15)(D) of the Act if: (3) Shall continue to provide the (A) The alien intends to land for the same crewman services that he or she purpose of performing service on a ves- previously provided to the employer. sel of the United States (as defined in (B) An alien crewman who qualifies 46 U.S.C. 2101(46)) or an aircraft of an as a current employee under this para- air carrier (as defined in section 101(3) of the Federal Aviation Act of 1958); graph remains subject to the restric- and tions on his or her employment in the (B) A labor dispute consisting of a United States contained in paragraph strike or lockout exists in the bargain- (d)(1) of this section. ing unit of the employer in which the (v) Strike or lockout determination. alien intends to perform such service; These provisions will take effect if the and Attorney General, through the Com- (C) The alien is not already an em- missioner of the Immigration and Nat- ployee of the company (as described in uralization Service or his or her des- paragraph (d)(2)(iv) of this section). ignee, after consultation with the Na- (ii) Refusal to land. Any alien (except tional Mediation Board, determines a qualified current employee as de- that a strike, lockout, or labor dispute scribed in paragraph (d)(2)(iv) of this involving a work stoppage is in section) who the examining immigra- progress in the bargaining unit of the tion officer determines has arrived in employer for whom the alien intends to the United States for the purpose of perform such service. performing service on board a vessel or (e) Traders and Investors—(1) General. an aircraft of the United States when a An alien defined in section 101(a)(15)(E) strike or lockout is under way in the of the Act may be admitted for an ini- bargaining unit of the employer, shall tial period of not more than one year be refused a conditional landing permit and may be granted extensions of tem- under section 252 of the Act. porary stay in increments of not more (iii) Ineligibility for parole. An alien than two years. A trader or investor described in paragraph (d)(2)(i) of this and his or her spouse or child who ac- section may not be paroled into the companied or followed to join the trad- United States under section 212(d)(5) of er or investor, who acquired non- the Act for the purpose of performing immigrant status on or after December crewmember duties unless the Attor- ney General determines that the parole 24, 1952 under section 101(a)(15)(E) (i) or of such alien is necessary to protect (ii) of the Act shall submit to the dis- the national security of the United trict director having jurisdiction over States. This paragraph does not pro- the alien’s place of residence properly hibit the granting of parole for other executed Forms I–539 and I–126 to apply purposes, such as medical emergencies. for an extension of the period of his or (iv) Qualified current employees. (A) her temporary admission. A trader or Paragraphs (d)(2)(i), (d)(2)(ii), and investor may change from one em- (d)(2)(iii) of this section do not apply to ployer to another after a written re- an alien who is already an employee of quest for permission to do so has been the owner or operator of the vessel or approved by the district director hav- air carrier and who at the time of in- ing jurisdiction over the alien’s resi- spection presents true copies of em- dence. The request must be supported ployer work records which satisfy the by evidence that the requester would examining immigration officer that still be classifiable as a trader or inves- the alien: tor in the new employment. After the (1) Has been an employee of such em- request is granted, Service officers ployer for a period of not less than one shall make a notation on the reverse of

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the alien’s Form I–94 reading ‘‘Employ- Eligibility for Nonimmigrant (F–1) ment by (name of new employer) au- Student Status, which is issued by a thorized’’, followed by the date of the school approved by the Service for at- authorization. Any unauthorized tendance by foreign students; change to a new employer will con- (B) Has documentary evidence of fi- stitute a failure to maintain status nancial support in the amount indi- within the meaning of section 241 cated on the Form I–20 A–B/I–20 ID; and (a)(1)(C)(i) of the Act. (C) For students seeking initial ad- (2) Definition of the term trade. The mission only, intends to attend the term trade, as used in this section, school specified in the student’s visa means the exchange, purchase, or sale except where the student is exempt of goods and/or services. Goods are tan- from the requirement for a visa, in gible commodities or merchandise hav- which case the student must intend to ing intrinsic value. Services are eco- attend the school indicated on the nomic activities whose outputs are Form I–20 A–B/I–20 ID. other than tangible goods. Such service (ii) Disposition of Form I–20 A–B/I–20 activities include, but are not limited ID. Form I–20 A–B/I–20 ID contains two to, banking, insurance, transportation, copies, the I–20 School Copy and the I– communications and data processing, 20 ID (Student) Copy. For purposes of advertising, accounting, design and en- clarity, the entire Form I–20 A–B/I–20 gineering, management consulting, ID shall be referred to as Form I–20 A– tourism, and technology transfer. B and the I–20 ID (Student) Copy shall (3) Denial of treaty trader or investor be referred to as the I–20 ID. When an status to citizens of Canada or Mexico in F–1 student applies for admission with the case of certain labor disputes. A citi- a complete Form I–20 A–B, the inspect- zen of Canada or Mexico may be denied ing officer shall: E treaty trader or investor status as (A) Transcribe the student’s admis- described in section 101(a)(15)(E) of the sion number from Form I–94 onto his or Act and section B of Annex 1603 of the her Form I–20 A–B (for students seek- NAFTA if: ing initial admission only); (i) The Secretary of Labor certifies (B) Endorse all copies of the Form I– to or otherwise informs the Commis- 20 A–B; sioner that a strike or other labor dis- (C) Return the I–20 ID to the student; pute involving a work stoppage of and workers is in progress at the place (D) Forward the I–20 School Copy to where the alien is or intends to be em- the Service’s processing center for data ployed; and entry. (The school copy of Form I–20 A– (ii) Temporary entry of that alien B will be sent back to the school as a may affect adversely either: notice of the student’s admission after (A) The settlement of any labor dis- data entry.) pute that is in progress at the place or (2) I–20 ID. An F–1 student is expected intended place of employment, or to safekeep the initial I–20 ID bearing (B) The employment of any person the admission number and any subse- who is involved in such dispute. quent copies which have been issued to (f) Students in colleges, universities, him or her. Should the student lose his seminaries, conservatories, academic high or her current I–20 ID, a replacement schools, elementary schools, other aca- copy bearing the same information as demic institutions, and in language train- the lost copy, including any endorse- ing programs—(1) Admission of student— ment for employment and notations, (i) Eligibility for admission. A non- may be issued by the designated school immigrant student and his or her ac- official (DSO) as defined in 8 CFR companying spouse and minor children 214.3(l)(1)(i). may be admitted into the United (3) Spouse and minor children following States in F–1 and F–2 classifications to join student. The spouse and minor for duration of status under section children following to join an F–1 stu- 101(a)(15)(F)(i) of the Act, if the student are eligible for admission to the dent: United States if the F–1 student is, or (A) Presents a properly completed will be within sixty days, enrolled in a Form I–20 A–B/I–20 ID, Certificate of full course of study or, if the student is

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engaged in approved practical training year during any one of the quarters or following completion of studies. The el- trimesters instead of during the sum- igible spouse and minor children of an mer is considered to be in status during F–1 student may be admitted in F–2 that vacation, if the student has com- status if they present the F–1 student’s pleted the equivalent of an academic current I–20 ID with proper endorse- year prior to taking the vacation. ment by the DSO. A new Form I–20 A– (iv) Illness or medical conditions. A B is required where there has been any student who is compelled by illness or substantive change in the information other medical conditions to interrupt on the student’s current I–20 ID. or reduce a full course of study is con- (4) Temporary absence. An F–1 student sidered to be in status during the ill- returning to the United States from a ness or other medical condition. The temporary absence of five months or less may be readmitted for attendance student must resume a full course of at a Service-approved educational in- study upon recovery. stitution, if the student presents: (6) Full course of study—(i) General. (i) A current I–20 ID properly en- Successful completion of the full dorsed by the DSO for reentry if there course of study must lead to the at- is no substantive change on the most tainment of a specific educational or recent I–20 ID; or professional objective. A ‘‘full course of (ii) A new Form I–20 A–B if there has study’’ as required by section been any substantive change in the in- 101(a)(15)(F)(i) of the Act means: formation on the student’s most recent (A) Postgraduate study or I–20 ID, such as in the case of a student postdoctoral study at a college or uni- who has changed the major area of versity, or undergraduate or post- study, who intends to transfer to an- graduate study at a conservatory or re- other Service-approved institution, or ligious seminary, certified by a DSO as who has advanced to a higher level of a full course of study; study. (B) Undergraduate study at a college (5) Duration of status—(i) General. Du- or university, certified by a school offi- ration of status is defined as the time cial to consist of at least twelve semes- during which an F–1 student is pursu- ter or quarter hours of instruction per ing a full course of study at an edu- academic term in those institutions cational institution approved by the Service for attendance by foreign stu- using standard semester, trimester, or dents, or engaging in authorized prac- quarter hour systems, where all under- tical training following completion of graduate students who are enrolled for studies, plus sixty days to prepare for a minimum of twelve semester or quar- departure from the United States. The ter hours are charged full-time tuition student is considered to be maintaining or are considered full-time for other status if he or she is making normal administrative purposes, or its equiva- progress toward completing a course of lent (as determined by the district di- study. rector in the school approval process), (ii) Change in educational levels. An F– except when the student needs a lesser 1 student who continues from one edu- course load to complete the course of cational level to another is considered study during the current term; to be maintaining status, provided that (C) Study in a postsecondary lan- the transition to the new educational guage, liberal arts, fine arts, or other level is accomplished according to non-vocational program at a school transfer procedures outlined in para- which confers upon its graduates recog- graph (f)(8) of this section. nized associate or other degrees or has (iii) Annual vacation. An F–1 student established that its credits have been at an academic institution is consid- and are accepted unconditionally by at ered to be in status during the annual least three institutions of higher learn- (or summer) vacation if the student is ing which are either: (1) A school (or eligible and intends to register for the next term. A student attending a school system) owned and operated as a school on a quarter or trimester cal- public educational institution by the endar who takes only one vacation a United States or a State or political

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subdivision thereof; or (2) a school ac- status. The student is not required to credited by a nationally recognized ac- apply for extension of stay as long as crediting body; and which has been cer- the student is maintaining status and tified by a designated school official to making normal progress toward com- consist of at least twelve clock hours pleting his or her educational objec- of instruction a week, or its equivalent tive. An F–1 student who is unable to as determined by the district director complete a full course of study in a in the school approval process; timely manner must apply, in a 30–day (D) Study in any other language, lib- period before the completion date on eral arts, fine arts, or other nonvoca- the Form I–20 A–B, to the DSO for a tional training program, certified by a program extension pursuant to para- designated school official to consist of graph (f)(7)(iii) of this section. at least eighteen clock hours of attend- (ii) Completion date on Form I–20 A–B. ance a week if the dominant part of the When determining the program com- course of study consists of classroom pletion date on Form I–20 A–B, the instruction, or to consist of at least DSO should make a reasonable esti- twenty-two clock hours a week if the mate based on the time an average for- dominant part of the course of study eign student would need to complete a consists of laboratory work; or similar program in the same discipline. (E) Study in a primary school or aca- A grace period of no more than one demic high school curriculum certified year may be added onto the DSO’s esti- by a designated school official to con- mate. sist of class attendance for not less (iii) Program extension for students in than the minimum number of hours a lawful status. An F–1 student who is un- week prescribed by the school for nor- able to meet the program completion mal progress towards graduation. date on the Form I–20 A–B may be (ii) Institution of higher learning. For granted a program extension by the purposes of this paragraph, a college or school, if the DSO certifies on a Form university is an institution of higher I–538 that the student has continually learning which awards recognized asso- maintained status and that the delays ciate, bachelor’s, master’s, doctorate, are caused by compelling academic or or professional degrees. Schools which devote themselves exclusively or pri- medical reasons, such as changes of marily to vocational, business, or lan- major or research topics, unexpected guage instruction are not included in research problems, or documented ill- the category of colleges or universities. nesses. Delays caused by academic pro- Vocational or business schools which bation or suspension are not acceptable are classifiable as M–1 schools are pro- reasons for program extension. The vided for by regulations under 8 CFR DSO must notify the Service within 30 214.2(m). days of any approved program exten- (iii) Reduced course load. The des- sions by forwarding to the Service data ignated school official may advise an processing center a certification on F–1 student to engage in less than a Form I–538 and the top page of a new full course of study due to initial dif- Form I–20 A–B showing a new program ficulties with the English language or completion date. reading requirements, unfamiliarity (iv) Failure to complete the educational with American teaching methods, or program in a timely manner. An F–1 stu- improper course level placement. An dent who is unable to complete the F–1 student authorized to reduce educational program within the time course load by the DSO in accordance period written on the Form I–20 A–B with the provisions of this paragraph is and who is ineligible for program ex- considered to be maintaining status. tension pursuant to paragraph (f)(7)(iii) On-campus employment pursuant to of this section is considered to be out the terms of a scholarship, fellowship, of status. Under these circumstances, or assistantship is deemed to be part of the student must apply for reinstate- the academic program of a student oth- ment under the Provisions of para- erwise taking a full course of study. graph (f)(16) of this section. (7) Extension of stay—(i) General. An (8) School transfer—(i) Eligibility. An F–1 student is admitted for duration of F–1 student who is maintaining status

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may transfer to another Service-ap- lum or related to contractually funded proved school by following the notifi- research projects at the post-graduate cation procedure prescribed in para- level. In any event, the employment graph (f)(8)(ii) of this section. An F–1 must be an integral part of the stu- student who was not pursuing a full dent’s educational program. Employ- course of study at the school he or she ment authorized under this paragraph was last authorized to attend is ineli- must not exceed twenty hours a week gible for school-transfer and must while school is in session. An F–1 stu- apply for reinstatement under the pro- dent may, however, work on campus visions of paragraph (f)(16) of this sec- full-time when school is not in session tion. or during the annual vacation. A stu- (ii) Transfer procedure. To transfer dent who has been issued a Form I–20 schools, an F–1 student must first no- A-B to begin a new program in accord- tify the school he or she is attending of ance with the provision of 8 CFR the intent to transfer, then obtain a 214.3(k) and who intends to enroll for Form I–20 A–B, issued in accordance the next regular academic year, term, with the provisions of 8 CFR 214.3(k), or session at the institution which is- from the school to which he or she in- sued the Form I–20 A-B may continue tends to transfer. The transfer will be on-campus employment incident to effected only if the F–1 student com- status. Otherwise, an F-1 student may pletes the Student Certification por- not engage in on-campus employment tion of the Form I–20 A–B and returns after completing a course of study, ex- the form to a designated school official cept employment for practical training on campus within 15 days of beginning as authorized under paragraph (f)(10) of attendance at the new school. this section. An F-I student may en- (iii) Notification. Upon receipt of the gage in any on-campus employment au- student’s Form I–20 A–B, the DSO thorized under this paragraph which must: will not displace United States resi- (A) Note ‘‘transfer completed on dents. (date)’’ on the student’s I–20 ID in the (ii) Off-campus work authorization— space provided for the DSO’s remarks, (A) General. An F–1 student may be au- thereby acknowledging the student’s thorized to work off-campus on a part- attendance; time basis in accordance with para- (B) Return the I–20 ID to the student; graph (f)(9)(ii) (B) or (C) of this section (C) Submit the I–20 School copy to after having been in F–1 status for one the Service’s Data Processing Center full academic year provided that the within 30 days of receipt from the stu- student is in good academic standing dent; and as determined by the DSO. Part-time (D) Forward a photocopy of the Form off-campus employment authorized I–20 A-B School Copy to the school under this section is limited to no from which the student transferred. more than twenty hours a week when (9) Employment—(i) On-campus employ- school is in session. A student who is ment. On-campus employment must ei- granted off-campus employment au- ther be performed on the school’s thorization may work full-time during premises, (including on-location com- holidays or school vacation. The em- mercial firms which provide services ployment authorization is automati- for students on campus, such as the cally terminated whenever the student school bookstore or cafeteria), or at an fails to maintain status. off-campus location which is educa- (B) Wage-and-labor attestation require- tionally affiliated with the school. Em- ment. Except as provided under para- ployment with on-site commercial graphs (f)(9)(ii)(C) and (f)(9)(iii) of this firms, such as a construction company section, a student may be authorized to building a school building, which do accept off-campus employment only if not provide direct student services is the prospective employer has filed a not deemed on-campus employment for labor-and-wage attestation pursuant to the purposes of this paragraph. In the 20 CFR part 655, subparts J and K (re- case of off-campus locations, the edu- quiring the employer to attest to the cational affiliation must be associated fact that it has actively recruited do- with the school’s established curricu- mestic labor for at least 60 days for the

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position and will accord the student dent may make a request for off-cam- worker the same wages and working pus employment authorization to the conditions as domestic workers simi- DSO on Form I–538 after the employer larly employed.) has filed the labor-and-wage attesta- (C) Severe economic hardship. If other tion. By certifying on Form I–538 that employment opportunities are not the student is eligible for off-campus available or are otherwise insufficient, employment, and endorsing the stu- an eligible F–1 student may request off- dent’s I–20 ID, the DSO may authorize campus employment work authoriza- off-campus employment in one year in- tion based upon severe economic hard- tervals for the duration of a valid at- ship caused by unforeseen cir- testation as determined by the Sec- cumstances beyond the student’s con- retary of Labor. The endorsement on trol. These circumstances may include the student’s I–20 ID should read ‘‘part- loss of financial aid or on-campus em- time employment with (name of employment without fault on the part of ployer) at (location) authorized from the student, substantial fluctuations in (date) to (date).’’ Off-campus employ- the value of currency or exchange rate, ment authorized by the DSO under this inordinate increases in tuition and/or provision is incident to the student’s living costs, unexpected changes in the status pursuant to 8 CFR financial condition of the student’s 274a.12(b)(6)(ii) and employer-specific source of support, medical bills, or and, therefore, exempt from the EAD other substantial and unexpected ex- requirement. The DSO must notify the penses. Service of each off-campus employ- (D) Procedure for off-campus employment authorization by forwarding to ment authorization. The student must the Service data processing center the submit the application to the DSO on completed Form I–538. The DSO shall Form I–538, Certification by Designated return to the student the endorsed I–20 School Official. The DSO may rec- ID. ommend the student work off-campus (F) Severe economic hardship applica- for one year intervals by certifying on tion—(1) The applicant should submit the Form I–538 that: to the Service Form I–20 ID, Form I– (1) The student has been in F–1 status 538, and Form I–765 along with the fee for one full academic year; required by 8 CFR 103.7(b)(1), and any (2) The student is in good standing as other supporting materials such as affi- a student and is carrying a full course davits which further detail the unfore- of study as defined in paragraph (f)(6) seen circumstances that require the of this section; student to seek employment authoriza- (3) The student has demonstrated tion and the unavailability or insuffi- that acceptance of employment will ciency of employment under para- not interfere with the student’s carry- graphs (f)(9)(i) and (f)(9)(ii)(B) of this ing a full course of study; and section. The requirement with respect (4) Either: (i) The prospective em- to paragraph (f)(9)(ii)(B) of this section ployer has submitted a labor-and-wage is satisfied if the DSO certifies on attestation pursuant to paragraph Form I–538 that the student and the (f)(9)(ii)(B) of this section, or DSO are not aware of available employ- (ii) The student has demonstrated ment in the area through the Pilot Off- that the employment is necessary to Campus Employment Program. In avoid severe economic hardship due to areas where there are such Pilot pro- unforeseen circumstances beyond the gram opportunities, this requirement student’s control pursuant to para- is satisfied if the DSO certifies on graph (f)(9)(ii)(C) of this section, and Form I–538 that employment under the has demonstrated that employment Pilot program is insufficient to meet under paragraph (f)(9)(i) and (f)(9)(ii)(B) the student’s needs. The student must of this section is unavailable or other- apply for the employment authoriza- wise insufficient to meet the needs tion on Form I–765 with the Service of- that have arisen as a result of the un- fice having jurisdiction over his or her foreseen circumstances. place of residence. (E) Wage-and-Labor attestation appli- (2) The Service shall adjudicate the cation to the DSO. An eligible F–1 stu- application for work authorization

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based upon severe economic hardship her major area of study. There are two on the basis of Form I–20 ID, Form I– types of practical training available: 538, and Form I–765, and any additional (i) Curricular practical training pro- supporting materials. If employment is grams. An F–1 student may be author- authorized, the adjudicating officer ized, by the DSO, to participate in a shall issue an EAD. The Service direc- curricular practical training program tor shall notify the student of the deci- which is an integral part of an estab- sion, and, if the application is denied, lished curriculum. Curricular practical of the reason or reasons for the denial. training is defined to be alternate No appeal shall lie from a decision to work/study, internship, cooperative deny a request for employment author- education, or any other type of re- ization under this section. The employ- quired internship or practicum which ment authorization may be granted in is offered by sponsoring employers one year intervals up to the expected through cooperative agreements with date of completion of the student’s cur- the school. Students who have received rent course of study. A student has per- one year or more of full-time curricu- mission to engage in off-campus em- lar practical training are ineligible for ployment only if the student receives post-completion practical training. Ex- the EAD endorsed to that effect. Off- ceptions to the nine-month in status campus employment authorization requirement are provided for students may be renewed by the Service only if enrolled in graduate studies which re- the student is maintaining status and quire immediate participation in cur- good academic standing. The employ- ricular practical training. A request for ment authorization is automatically authorization for curricular practical terminated whenever the student fails training must be made to the DSO on to maintain status. Form I–538. Upon approving the request (iii) Internship with an international for authorization, the DSO shall: organization. A bona fide F-1 student (A) Certify the Form I–538 and send who has been offered employment by a the form to the Service’s data process- recognized international organization ing center; within the meaning of the Inter- national Organization Immunities Act (B) Endorse the student’s I–20 ID with (59 Stat. 669) must apply for employ- ‘‘full-time (or part-time) curricular ment authorization, in person, to the practical training authorized for (em- Service office having jurisdiction over ployer) at (location) from (date) to his or her place of residence. A student (date)’’; and seeking employment authorization (C) Sign and date the I–20 ID before under this provision is required to returning it to the student. A student present a written certification from may begin curricular practical training the international organization that the only after receiving his or her I–20 ID proposed employment is within the with the DSO endorsement. scope of the organization’s sponsorship, (ii) Optional practical training—(A) an I–20 ID endorsed for reentry by the General. An F–1 student may apply to DSO within the last 30 days, and a the Service for authorization for tem- completed Form I–765, Application for porary employment for practical train- Employment Authorization, with the ing directly related to the student’s fee required in 8 CFR 103.7(b)(1). major area of study. Temporary em- (10) Practical training. Practical train- ployment for practical training may be ing is available to F–1 students who authorized: have been lawfully enrolled on a full- (1) During the student’s annual vaca- time basis in a Service-approved col- tion and at other times when school is lege, university, conservatory, or semi- not in session if the student is cur- nary for at least nine consecutive rently enrolled and eligible, and in- months. Students in English language tends, to register for the next term or training programs are ineligible for session; practical training. An eligible F–1 stu- (2) While school is in session, pro- dent may request employment author- vided that practical training does not ization for practical training in a posi- exceed twenty hours a week while tion which is directly related to his or school is in session;

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(3) After completion of all course re- for employment authorization must in- quirements for the degree (excluding clude the following documents: thesis or equivalent), if the student is (i) A completed Form I–765, with the in a bachelor’s master’s, or doctoral de- fee required by § 103.7(b)(1); and gree program; or (ii) A DSO’s recommendation for (4) After completion of the course of practical training on I–20 ID. study. A student must complete all (12) Decision on application for employ- practical training within a 14 month ment authorization. The Service shall period following the completion of adjudicate the Form I–765 and issue an study. EAD on the basis of the DSO’s rec- (B) Termination of practical training. ommendation unless the student is Authorization to engage in practical found otherwise ineligible. The Service training employment is automatically shall notify the applicant of the deci- terminated when the student transfers sion and, if the application is denied, of to another school. the reason or reasons for the denial. (C) Request for authorization for prac- The applicant may not appeal the deci- tical training. A request for authoriza- sion. tion to accept practical training must (13) Temporary absence from the United be made to the designated school offi- States of F–1 student granted employment cial (DSO) of the school the student is authorization. (i) A student returning authorized to attend on Form I–538, ac- from a temporary trip abroad with an companied by his or her current Form unexpired off-campus employment au- I–20 ID. thorization on his or her I–20 ID may (D) Action of the DSO. In making a recommendation for practical training, resume employment only if the student a designated school official must: is readmitted to attend the same (1) Certify on Form I–538 that the school which granted the employment proposed employment is directly relat- authorization. ed to the student’s major area of study (ii) An F–1 student who has an and commensurate with the student’s unexpired EAD issued for post-comple- educational level; tion practical training and who is oth- (2) Endorse and date the student’s erwise admissible may return to the Form I–20 ID to show that practical United States to resume employment training in the student’s major field of after a period of temporary absence. study is recommended ‘‘full-time (or The EAD must be used in combination part-time) from (date) to (date)’’; and with an I–20 ID endorsed for reentry by (3) Return to the student the Form I– the DSO within the last six months. 20 ID and send to the Service data proc- (14) Effect of strike or other labor dis- essing center the school certification pute. Any employment authorization, on Form I–538. whether or not part of an academic (11) Employment authorization. The program, is automatically suspended total periods of authorization for op- upon certification by the Secretary of tional practical training under para- Labor or the Secretary’s designee to graph (f)(10) of this section shall not the Commissioner of the Immigration exceed a maximum of twelve months. and Naturalization Service or the Com- Part-time practical training, 20 hours missioner’s designee, that a strike or per week or less, shall be deducted other labor dispute involving a work from the available practical training at stoppage of workers is in progress in one-half the full-time rate. As required the occupation at the place of employ- by the regulations at 8 CFR part 274a, ment. As used in this paragraph, ‘‘place an F–1 student seeking practical train- of employment’’ means the facility or ing (excluding curricular practical facilities where a labor dispute exists. training) under paragraph (f)(10) of this The employer is prohibited from trans- section may not accept employment ferring F–1 students working at other until he or she has been issued an Em- facilities to the facility where the ployment Authorization Document work stoppage is occurring. (EAD) by the Service. An F–1 student (15) Spouse and children of F–1 student. must apply to the INS for the EAD by The F–1 spouse and children of an F–1 filing the Form 1–765. The application student may not accept employment.

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(16) Reinstatement to student status—(i) or she intends to continue to employ General. The Service may consider rein- the applicant and describing the type stating an F–1 student who makes a re- of work the applicant will perform. quest for reinstatement on Form I–539, (2) Definition of G–1, G–3, or G–4 de- Application to Extend Time of Tem- pendent. For purposes of employment porary Stay, accompanied by a prop- in the United States, the term depend- erly completed Form I–20 A–B from the ent of a G–1, G–3, or G–4 principal alien, school the student is attending or in- as used in § 214.2(g), means any of the tends to attend, if the student: following immediate members of the (A) Establishes to the satisfaction of family habitually residing in the same the Service that the violation of status household as the principal alien who is resulted from circumstances beyond an officer or employee assigned to a the student’s control or that failure to mission, to an international organiza- receive reinstatement to lawful F–1 tion, or is employed by an inter- status would result in extreme hard- national organization in the United ship to the student; States: (B) Is currently pursuing, or intend- (i) Spouse; ing to pursue, a full course of study at (ii) Unmarried children under the age the school which issued the Form I–20 of 21; A–B; (iii) Unmarried sons or daughters (C) Has not engaged in unauthorized under the age of 23 who are in full-time employment; and attendance as students at post-second- (D) Is not deportable on any ground other than section 241(a)(1)(B) or (C)(i) ary educational institutions; of the Act. (iv) Unmarried sons or daughters (ii) Decision. If the Service reinstates under the age of 25 who are in full-time the student, the Service shall endorse attendance as students at post-second- the Form I–20 A–B to indicate that the ary educational institutions if a formal student has been reinstated, return the bilateral employment agreement per- I–20 ID to the student, and forward the mitting their employment in the Unit- school copy of the form to the Service’s ed States was signed prior to November processing center for data entry. If the 21, 1988, and such bilateral employment Service does not reinstate the student, agreement does not specify 23 as the the student may not appeal that deci- maximum age for employment of such sion. sons and daughters. The Office of Pro- (g) Representatives to international or- tocol of the Department of State shall ganizations—(1) General. The determina- maintain a listing of foreign states tion by a consular officer prior to ad- which the United States has such bilat- mission and the recognition by the eral employment agreements. The pro- Secretary of State subsequent to ad- visions of this paragraph apply only to mission is evidence of the proper clas- G–1 and G–3 dependents under certain sification of a nonimmigrant under bilateral agreements and are not appli- section 101(a)(15)(G) of the Act. An cable to G–4 dependents; and alien who has a nonimmigrant status (v) Unmarried sons or daughters who under section 101(a)(15)(G) (i), (ii), (iii) are physically or mentally disabled to or (iv) of the Act is to be admitted for the extent that they cannot adequately the duration of the period for which care for themselves or cannot estab- the alien continues to be recognized by lish, maintain, or re-establish their the Secretary of State as being entitled own households. The Department of to that status. An alien defined in sec- State or the Service may require cer- tion (101)(a)(15)(G)(v) of the Act is to be tification(s) as it deems sufficient to admitted for an initial period of not document such mental or physical dis- more than three years, and may be ability. granted extensions of temporary stay (3) Applicability of a formal bilateral in increments of not more than two agreement or an informal de facto ar- years. In addition, the application for rangement for G–1 and G–3 dependents. extension of temporary stay must be The applicability of a formal bilateral accompanied by a statement signed by agreement shall be based on the foreign the employing official stating that he state which employs the principal alien

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and not on the nationality of the prin- the United States may be authorized to cipal alien or dependent. The applica- accept or continue in employment bility of an informal de facto arrange- based upon informal de facto arrangement shall be based on the foreign ments, and dependents of a G–4 prin- state which employs the principal cipal alien assigned to official duty in alien, but under a de facto arrange- the United States may be authorized to ment the principal alien also must be a accept or continue in employment national of the foreign state which em- upon favorable recommendation by the ploys him or her in the United States. Department of State and issuance of (4) Income tax, Social Security liability; employment authorization by the Serv- non-applicability of certain immunities. ice in accordance with 8 CFR part 274a. Dependents who are granted employ- Additionally, the procedures set forth ment authorization under this section in paragraph (g)(6) of this section must are responsible for payment of all fed- be complied with, and the following eral, state and local income, employ- conditions must be met: ment and related taxes and Social Se- (A) Both the principal alien and the curity contributions on any remunera- dependent desiring employment are tion received. In addition, immunity maintaining G–1, G–3, or G–4 status as from civil or administrative jurisdic- appropriate; tion in accordance with Article 37 of (B) The principal’s assignment in the the Vienna Convention on Diplomatic United States is expected to last more Relations or other international agree- than six months; ments does not apply to these depend- (C) Employment of a similar nature ents with respect to matters arising for dependents of United States Gov- out of their employment. ernment officials assigned to official (5) G–1 and G–3 dependent employment duty in the foreign state employing the pursuant to formal bilateral employment principal alien is not prohibited by agreements and informal de facto recip- that foreign government. The provi- rocal arrangements, and G–4 dependent sions of this paragraph apply only to employment. (i) The Office of Protocol G–1 and G–3 dependents; shall maintain a listing of foreign (D) The proposed employment is not states which have entered into formal in an occupation listed in the Depart- bilateral employment agreements. De- ment of Labor Schedule B (20 CFR part pendents of a G–1 or G–3 principal alien 656), or otherwise determined by the assigned to official duty in the United Department of Labor to be one for States may accept or continue in unre- which there is an oversupply of quali- stricted employment based on such for- fied U.S. workers in the area of pro- mal bilateral agreements, if the appli- posed employment. This Schedule B re- cable agreement includes persons in G– striction does not apply to a dependent 1 or G–3 visa status, upon favorable son or daughter who is a full-time stu- recommendation by the Department of dent if the employment is part-time, State and issuance of employment au- consisting of not more than 20 hours thorization documentation by the per week, and/or if it is temporary em- Service in accordance with 8 CFR part ployment of not more than 12 weeks 274a. The application procedures are during school holiday periods; and set forth in paragrpah (g)(6) of this sec- (E) The proposed employment is not tion. contrary to the interest of the United (ii) For purposes of this section, an States. Employment contrary to the informal de facto reciprocal arrange- interest of the United States includes, ment exists when the Department of but is not limited to, the employment State determines that a foreign state of G–1, G–3, or G–4 dependents: who allows appropriate employment on the have criminal records; who have vio- local economy for dependents of cer- lated United States immigration laws tain United States officials assigned to or regulations, or visa laws or regula- duty in that foreign state. The Office of tions; who have worked illegally in the Protocol shall maintain a listing of United States; and/or who cannot es- countries with which such reciprocity tablish that they have paid taxes and exists. Dependents of a G–1 or G–3 prin- social security on income from current cipal alien assigned to official duty in or previous United States employment.

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Additionally, the Department of State makes its determination, and endorses may determine a G–4 dependent’s em- the Form I–566. ployment is contrary to the interest of (iii) If the Department of State’s en- the United States when the principal dorsement is favorable, the dependent alien’s country of nationality has one may apply to the Service. A dependent or more components of an inter- whose principal alien is stationed at a national organization or international post in Washington, DC, or New York organizations within its borders and City shall apply to the District Direc- does not allow the employment of de- tor, Washington, DC, or New York pendents of United States citizens em- City, respectively. A dependent whose ployed by such component(s) or organi- principal alien is stationed elsewhere zation(s). shall apply to the District Director, (6) Application procedures. The follow- Washington, DC, unless the Service, ing procedures are applicable to G–1 through the Department of State, di- and G–3 dependent employment appli- rects the dependent to apply to the dis- cations under bilateral agreements and trict director having jurisdiction over de facto arrangements, as well as to G– his or her place of residence. Directors 4 dependent employment applications: of the regional service centers may (i) The dependent must submit a have concurrent adjudicative authority completed Form I–566 to the Depart- for applications filed within their re- ment of State through the office, mis- spective regions. When applying to the sion, or organization which employs Service, the dependent must present his or her principal alien. If the prin- his or her Form I–566 with a favorable cipal is assigned to or employed by the endorsement from the Department of United Nations, the Form I–566 must be State and any additional documenta- submitted to the U.S. Mission to the tion as may be required by the Attor- United Nations. All other applications ney General. must be submitted to the Office of Pro- (7) Period of time for which employment tocol of the Department of State. A de- may be authorized. If approved, an appli- pendent applying under paragraph cation to accept or continue employ- (g)(2) (iii) or (iv) of this section must ment under this section shall be grant- submit a certified statement from the ed in increments of not more than post-secondary educational institution three years each. confirming that he or she is pursuing studies on a full-time basis. A depend- (8) No appeal. There shall be no ap- ent applying under paragraph (g)(2)(v) peal from a denial of permission to ac- of this section must submit medical cept or continue employment under certification regarding his or her con- this section. dition. The certification should iden- (9) Dependents or family members of tify the dependent and the certifying principal aliens classified G–2 or G–5. A physician and give the physician’s dependent or family member of a prin- phone number; identify the condition, cipal alien classified G–2 or G–5 may describe the symptoms and provide a not be employed in the United States prognosis; certify that the dependent is under this section. unable to establish, re-establish, and (10) Unauthorized employment. An maintain a home or his or her own. Ad- alien classified under section ditionally, a G–1 or G–3 dependent ap- 101(a)(15)(G) of the Act who is not a plying under the terms of a de facto ar- principal alien and who engages in em- rangement or a G–4 dependent must at- ployment outside the scope of, or in a tach a statement from the prospective manner contrary to this section, may employer which includes the depend- be considered in violation of section ent’s name; a description of the posi- 241(a)(1)(C)(i) of the Act. An alien who tion offered and the duties to be per- is classified under section 101(a)(15)(G) formed; the salary offered; and ver- of the Act who is a principal alien and ification that the dependent possesses who engages in employment outside the qualifications for the position. the scope of his/her official position (ii) The Department of State reviews may be considered in violation of sec- and verifies the information provided, tion 241(a)(1)(C)(i) of the Act.

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(11) Special provision. As of February training and for determination of the 16, 1990 no new employment authoriza- alien’s eligibility for classification as a tion will be granted and no pre-existing temporary employee or trainee, before employment authorization will be ex- the alien may apply for a visa or seek tended for a G–1 dependent absent an admission to the United States. This appropriate bilateral agreement or de paragraph sets forth the standards and facto arrangement. However, a G–1 de- procedures applicable to these classi- pendent who has been granted employ- fications. ment authorization by the Department (ii) Description of classifications. (A) of State prior to the effective date of An H–1A classification applies to an this section and who meets the defini- alien who is coming temporarily to the tion of dependent under § 214.2(g)(2) (i), United States to perform services as a (ii), (iii) or (v) of this part but is not registered nurse, meets the require- covered by the terms of a bilateral ments of section 212(m)(1) of the Act, agreement or de facto arrangement and will perform services at a facility may be allowed to continue in employ- for which the Secretary of Labor has ment until whichever of the following determined and certified to the Attor- occurs first: ney General that an unexpired attesta- (i) The employment authorization by tion is on file and in effect under sec- the Department of State expires; or tion 212(m)(2) of the Act. (ii) He or she no longer qualifies as a (B) An H–1B classification applies to dependent as that term is defined in an alien who is coming temporarily to this section; or the United States: (iii) March 19, 1990. (1) To perform services in a specialty (h) Temporary employees—(1) Admis- occupation (except registered nurses, sion of temporary employees—(i) General. agricultural workers, and aliens de- Under section 101(a)(15)(H) of the Act, scribed in section 101(a) (15) (O) and (P) an alien may be authorized to come to of the Act) described in section 214(i)(1) the United States temporarily to per- of the Act, that meets the require- form services or labor for, or to receive ments of section 214(i)(2) of the Act, training from, an employer, if peti- and for whom the Secretary of Labor tioned for by that employer. Under this has determined and certified to the At- nonimmigrant category, the alien may torney General that the prospective be classified as follows: under section employer has filed a labor condition 101(a)(15)(H)(i)(a) of the Act as a reg- application under section 212(n)(1) of istered nurse; under section the Act; 101(a)(15)(H)(i)(b) of the Act as an alien (2) To perform services of an excep- who is coming to perform services in a tional nature requiring exceptional specialty occupation, services relating merit and ability relating to a coopera- to a Department of Defense (DOD) co- tive research and development project operative research and development or a coproduction project provided for project or coproduction project, or under a Government-to-Government services as a fashion model who is of agreement administered by the Sec- distinguished merit and ability; under retary of Defense; section 101(a)(15)(H)(ii)(a) of the Act as (3) To perform services as a fashion an alien who is coming to perform agri- model of distinguished merit and abil- cultural labor or services of a tem- ity and for whom the Secretary of porary or seasonal nature; under sec- Labor has determined and certified to tion 101(a)(15)(H)(ii)(b) of the Act as an the Attorney General that the prospec- alien coming to perform other tem- tive employer has filed a labor condi- porary services or labor; or under section application under section 212(n)(1) tion 101(a)(15)(H)(iii) of the Act as an of the Act. alien who is coming as a trainee or as (C) An H–2A classification applies to a participant in a special education ex- an alien who is coming temporarily to change visitor program. These classi- the United States to perform agricul- fications are called H–1A, H–1B, H–2A, tural work of a temporary or seasonal H–2B, and H–3, respectively. The em- nature. ployer must file a petition with the (D) An H–2B classification applies to Service for review of the services or an alien who is coming temporarily to

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the United States to perform non- be received in more than one location agricultural work of a temporary or must include an itinerary with the seasonal nature, if unemployed persons dates and locations of the services or capable of performing such service or training and must be filed with the labor cannot be found in this country. Service office which has jurisdiction This classification does not apply to over I–129H petitions in the area where graduates of medical schools coming to the petitioner is located. The address the United States to perform services which the petitioner specifies as its lo- as members of the medical profession. cation on the I–129H petition shall be The temporary or permanent nature of where the petitioner is located for pur- the services or labor to be performed poses of this paragraph. must be determined by the service. (C) Services or training for more than This classification requires a tem- one employer. If the beneficiary will porary labor certification issued by the perform nonagricultural services for, Secretary of Labor or the Governor of or receive training from, more than Guam, or a notice from one of these in- one employer, each employer must file dividuals that such a certification can- a separate petition with the Service not be made, prior to the filing of a pe- Center that has jurisdiction over the tition with the Service. area where the alien will perform serv- (E) An H–3 classification applies to ices or receive training, unless an es- an alien who is coming temporarily to tablished agent files the petition. the United States: (D) Change of employers. If the alien is (1) As a trainee, other than to receive in the United States and decides to graduate medical education or train- change employers, the new employer ing, or training provided primarily at must file a petition on Form I–129 re- or by an academic or vocational insti- questing classification and extension of tution, or the alien’s stay in the United States. If (2) As a participant in a special edu- the new petition is approved, the ex- cation exchange visitor program which tension of stay may be granted for the provides for practical training and ex- validity of the approved petition. The perience in the education of children validity of the petition and the alien’s with physical, mental, or emotional extension of stay shall conform to the disabilities. limits on the alien’s temporary stay (2) Petitions—(i) Filing of petitions—(A) that are prescribed in paragraph (h)(13) General. A United States employer of this section. The alien is not author- seeking to classify an alien as an H–1A, ized to begin the new employment H–1B, H–2A, H–2B, or H–3 temporary until the petition is approved. employee shall file a petition on Form (E) Amended or new petition. The peti- I–129, Petition for Nonimmigrant tioner shall file an amended or new pe- Worker, only with the Service Center tition, with fee, with the Service Cen- which has jurisdiction in the area ter where the original petition was where the alien will perform services filed to reflect any material changes in or receive training, even in emergent the terms and conditions of employ- situations, except as provided in this ment or training or the beneficiary’s section. Petitions in Guam and the Vir- eligibility as specified in the original gin Islands, and petitions involving approved petition. An amended or new special filing situations as determined H–1A, H–1B, H–2A, or H–2B petition by Service Headquarters, shall be filed must be accompanied by a current or with the local Service Office or a des- new Department of Labor determina- ignated Service Office. The petitioner tion. In the case of an H–1B petition, may submit a legible photocopy of a this requirement includes a new labor document in support of the visa peti- condition application. tion in lieu of the original document. (F) Agents as petitioners. An estab- However, the original document shall lished United States agent may file a be submitted if requested by the Serv- petition in cases involving workers ice. who traditionally are self-employed or (B) Service or training in more than one use agents to arrange short-term em- location. A petition which requires ployment in their behalf with numer- services to be performed or training to ous employers, and in cases where a

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foreign employer authorizes the agent viously filed petitions for that labor to act in its behalf. A petition filed by certification. a agent is subject to the following con- (iv) Substitution of beneficiaries. Bene- ditions: ficiaries may be substituted in and H– (1) A person or company in business 2B petitions that are approved for a as an agent may file the H petition in- group, or H–2B petitions that are ap- volving multiple employers as the rep- proved for unnamed beneficiaries, or resentative of both the employers and approved H–2B petitions where the job the beneficiary(ies) if the supporting offered to the alien(s) does not require documentation includes a complete any education, training, and/or experi- itinerary of services or engagements. ence. To request a substitution, the pe- The itinerary shall specify the dates of titioner shall, by letter and a copy of each service or engagement, the names the petition’s approval notice, notify and addresses of the actual employers, the consular office at which the alien and the names and addresses of the es- will apply for a visa or the port of tablishments, venues, or locations entry where the alien will apply for ad- where the services will be performed. mission. Where evidence of the quali- In questionable cases, a contract be- fications of beneficiaries is required in tween the employers and the bene- petitions for unnamed beneficiaries, ficiary(ies) may be required. The bur- the petitioner shall also submit such den is on the agent to explain the evidence to the consular office or port terms and conditions of the employ- of entry prior to issuance of a visa or ment and to provide any required docu- admission. mentation. (v) H–2A Petitions. Special criteria for (2) An agent performing the function admission, extension, and maintenance of an employer must guarantee the of status apply to H–2A petitions and wage offered and the other terms and are specified in paragraph (h)(5) of this conditions of employment by section. The other provisions of contractural agreement with the bene- § 214.2(h) apply to H–2A only to the ex- ficiary(ies). The agent/employer must tent that they do not conflict with the also provide an itinerary of definite special agricultural provisions in para- employment and information on any graph (h)(5) of this section. other services planned for the period of (3) Petition for registered nurse (H– time requested. 1A)—(i) General. (A) For purposes of H– (ii) Multiple beneficiaries. More than 1A classification, the term ‘‘registered one beneficiary may be included in an nurse’’ includes a foreign nurse who is H–2A, H–2B, or H–3 petition if the bene- or will be licensed or authorized by the ficiaries will be performing the same State Board of Nursing to engage in service, or receiving the same training, professional nurse practice in the state for the same period of time, and in the of intended employment. same location. (B) A United States employer which (iii) Named beneficiaries. Non- provides health care services is re- agricultural petitions must include the ferred to as a ‘‘facility,’’ and may file names of beneficiaries and other re- an H–1A petition for an alien nurse to quired information at the time of fil- perform the services of a registered ing. Under the H–2B classification, ex- nurse. A ‘‘facility’’ must also meet the ceptions may be granted in emergent Department of Labor’s requirements as situations involving multiple bene- defined in 29 CFR part 504.’’. ficiaries at the discretion of the direc- (C) The position must involve nurs- tor, and in special filing situations as ing practice and require licensure or determined by the Service’s Head- other authorization to practice as a quarters. If all of the beneficiaries cov- registered nurse from the State Board ered by an H–2A or H–2B labor certifi- of Nursing in the state of intended em- cation have not been identified at the ployment. time a petition is filed, multiple peti- (D) A petition, application for change tions naming subsequent beneficiaries of status, or application for extension may be filed at different times with a of stay for an H–1A nurse may be adju- copy of the same labor certification. dicated only at the appropriate INS Each petition must reference all pre- service center.

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(ii) Definition of registered nurse. For jurisdiction of intended employment purposes of H–1A classification, ‘‘reg- place on the nurse’s services, istered nurse’’ shall mean a person who (D) A statement that notice of the is or will be authorized by a State filing of the petition has been provided Board of Nursing to engage in reg- by the employer to the bargaining rep- istered nurse practice in a state or U.S. resentative of the registered nurses at territory or possession, and who is or the facility or, where there is no such will be practicing at a facility which bargaining representative, notice of provides health care services. the filing has been provided to reg- (iii) Beneficiary requirements. An H–1A istered nurses employed at the facility petition for a nurse shall be accom- through posting in conspicuous loca- panied by evidence that the nurse: tions. A copy of the notice provided (A) Has obtained a full and unre- shall be submitted with the petitions, stricted license to practice nursing in and the country where the alien obtained (v) Licensure requirements. (A) A nurse nursing education, or has received who is granted H–1A classification nursing education in the United States based on passage of the CGFNS exam- or Canada; ination must, upon admission to the (B) Has passed the examination given United States, be able to obtain tem- by the Commission on Graduates of porary licensure or other temporary Foreign Nursing Schools (CGFNS), or authorization to practice as a reg- has obtained a full and unrestricted istered nurse from the State Board of (permanent) license to practice as a Nursing in the state of intended em- registered nurse in the state of in- ployment. A petition for such a nurse tended employment, or has obtained a shall be approved initially for a period full and unrestricted (permanent) li- not to exceed one year. cense in any state or territory of the (B) After admission to the United United States and received temporary States, an H–1A nurse who does not authorization to practice as a reg- hold a permanent state license must istered nurse in the state of intended employment; and take and pass the examination for (C) Is fully qualified and eligible state licensure as a registered nurse under the laws (including such tem- within six months from the date of his porary or interim licensing require- or her initial admission to the United ments which authorize the nurse to be States. After this six-month period of employed) governing the place of in- time, the nurse must be granted per- tended employment to practice as a manent state licensure in order to registered nurse immediately upon ad- maintain his or her eligibility for H–1A mission to the United States, and is classification in the state of employ- authorized under such laws to be em- ment or any other state or territory of ployed by the employer. For purposes the United States. of this paragraph, the temporary or in- (C) A nurse shall automatically lose terim licensing may be obtained imme- his or her eligibility for H–1A classi- diately after the alien enters the Unit- fication if he or she is no longer per- ed States. forming the duties of a registered pro- (iv) Petitioner requirements. The peti- fessional nurse. Such a nurse is not au- tioning facility shall submit the fol- thorized to remain in employment un- lowing with an H–1A petition: less he or she otherwise receives au- (A) A current copy of the Department thorization from the Service. of Labor’s (DOL) notice of acceptance (D) A nurse may be granted H–1A of the filing of its attestation on Form classification based on passage of the ETA 9029, CGFNS examination only until he or (B) A statement that it will comply she has been admitted to the United with the terms of its current attesta- States, and has had an opportunity to tion, and any attestations accepted by take the state licensure examination DOL for the duration of the alien’s au- for registered nurses. thorized period of stay, (vi) Other requirements. (A) If the Sec- (C) A statement describing any limi- retary of Labor notifies the Service tations which the laws of the state or that a facility which employs nurses

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has failed to meet a condition in its at- in the occupational specialty in which testation, or that there was a misrepre- the alien(s) will be employed. sentation of a material fact in the at- (2) Certification by the Department testation, the Service shall not approve of Labor of a labor condition applica- petitions for or extend the stay of tion in an occupational classification nurses to be employed by the facility does not constitute a determination by for a period of one year from the date that agency that the occupation in of receipt of such notice. question is a specialty occupation. The (B) If the facility’s attestation ex- director shall determine if the applica- pires, or is suspended or invalidated by tion involves a specialty occupation as DOL, the Service will not suspend or defined in section 214(i)(1) of the Act. revoke the facility’s approved petitions The director shall also determine for nurses, if the facility has agreed to whether the particular alien for whom comply with the terms of the attesta- H–1B classification is sought qualifies tion under which the nurses were ad- to perform services in the specialty oc- mitted or subsequent attestations ac- cupation as prescribed in section cepted by DOL for the duration of the 214(i)(2) of the Act. nurses’ authorized stay. (3) If all of the beneficiaries covered (4) Petition for alien to perform services by an H–1B labor condition application in a specialty occupation, services relating have not been identified at the time a to a DOD cooperative research and devel- petition is filed, petitions for newly opment project or coproduction project, or identified beneficiaries may be filed at services of distinguished merit and ability any time during the validity of the in the ield of fashion modeling (H–1B)— labor condition application using pho- (i)(A) Types of H–1B classification. An H– tocopies of the same application. Each 1B classification may be granted to an petition must refer by file number to alien who: all previously approved petitions for that labor condition application. (1) Will perform services in a spe- (4) When petitions have been ap- cialty occupation which requires theo- proved for the total number of workers retical and practical application of a specified in the labor condition appli- body of highly specialized knowledge cation, substitution of aliens against and attainment of a baccalaureate or previously approved openings shall not higher degree or its equivalent as a be made. A new labor condition appli- minimum requirement for entry into cation shall be required. the occupation in the United States, (5) If the Secretary of Labor notifies and who is qualified to perform serv- the Service that the petitioning em- ices in the specialty occupation be- ployer has failed to meet a condition of cause he or she has attained a bacca- paragraph (B) of section 212(n)(1) of the laureate or higher degree or its equiva- Act, has substantially failed to meet a lent in the specialty occupation; condition of paragraphs (C) or (D) of (2) Based on reciprocity, will perform section 212(n)(1) of the Act, has will- services of an exceptional nature re- fully failed to meet a condition of para- quiring exceptional merit and ability graph (A) of section 212(n)(1) of the Act, relating to a DOD cooperative research or has misrepresented any material and development project or a coproduc- fact in the application, the Service tion project provided for under a Gov- shall not approve petitions filed with ernment-to-Government agreement ad- respect to that employer under section ministered by the Secretary of Defense; 204 or 214(c) of the Act for a period of at (3) Will perform services in the field least one year from the date of receipt of fashion modeling and who is of dis- of such notice. tinguished merit and ability. (6) If the employer’s labor condition (B) General requirements for petitions application is suspended or invalidated involving a specialty occupation. (1) Be- by the Department of Labor, the Serv- fore filing a petition for H–1B classi- ice will not suspend or revoke the em- fication in a specialty occupation, the ployer’s approved petitions for aliens petitioner shall obtain a certification already employed in specialty occupa- from the Department of Labor that it tions if the employer has certified to has filed a labor condition application the Department of Labor that it will

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comply with the terms of the labor United States employer means a per- condition application for the duration son, firm, corporation, contractor, or of the authorized stay of aliens it em- other association, or organization in ploys. the United States which: (C) General requirements for petitions (1) Engages a person to work within involving an alien of distinguished merit the United States; and ability in the field of fashion model- (2) Has an employer-employee rela- ing. H–1B classification may be granted tionship with respect to employees to an alien who is of distinguished under this part, as indicated by the merit and ability in the field of fashion fact that it may hire, pay, fire, super- modeling. An alien of distinguished vise, or otherwise control the work of merit and ability in the field of fashion any such employee; and modeling is one who is prominent in (3) Has an Internal Revenue Service the field of fashion modeling. The alien Tax identification number. must also be coming to the United (iii) Criteria for H–1B petitions involv- States to perform services which re- ing a specialty occupation—(A) Standards quire a fashion model of prominence. for specialty occupation position. To (ii) Definitions. qualify as a specialty occupation, the Prominence means a high level of position must meet one of the follow- achievement in the field of fashion ing criteria: (1) A baccalaureate or higher degree modeling evidenced by a degree of skill or its equivalent is normally the mini- and recognition substantially above mum requirement for entry into the that ordinarily encountered to the ex- particular position; tent that a person described as promi- (2) The degree requirement is com- nent is renowned, leading, or well- mon to the industry in parallel posi- known in the field of fashion modeling. tions among similar organizations or, means a person or Regonized authority in the alternative, an employer may an organization with expertise in a par- show that its particular position is so ticular field, special skills or knowl- complex or unique that it can be per- edge in that field, and the expertise to formed only by an individual with a de- render the type of opinion requested. gree; Such an opinion must state: (3) The employer normally requires a (1) The writer’s qualifications as an degree or its equivalent for the posi- expert; tion; or (2) The writer’s experience giving (4) The nature of the specific duties such opinions, citing specific instances are so specialized and complex that where past opinions have been accepted knowledge required to perform the du- as authoritative and by whom; ties is usually associated with the at- (3) How the conclusions were reached; tainment of a baccalaureate or higher and degree. (4) The basis for the conclusions sup- (B) Petitioner requirements. The peti- ported by copies or citations of any re- tioner shall submit the following with search material used. an H–1B petition involving a specialty Specialty occupation means an occupa- occupation: tion which requires theoretical and (1) A certification from the Secretary practical application of a body of high- of Labor that the petitioner has filed a ly specialized knowledge in fields of labor condition application with the human endeavor including, but not Secretary, limited to, architecture, engineering, (2) A statement that it will comply mathematics, physical sciences, social with the terms of the labor condition sciences, medicine and health, edu- application for the duration of the cation, business specialties, account- alien’s authorized period of stay, ing, law, theology, and the arts, and (3) Evidence that the alien qualifies which requires the attainment of a to perform services in the specialty oc- bachelor’s degree or higher in a specific cupation as described in paragraph specialty, or its equivalent, as a mini- (h)(4)(iii)(A) of this section, and mum for entry into the occupation in (C) Beneficiary qualifications. To qual- the United States. ify to perform services in a specialty

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occupation, the alien must meet one of (4) Evidence of certification or reg- the following criteria: istration from a nationally-recognized (1) Hold a United States bacca- professional association or society for laureate or higher degree required by the specialty that is known to grant the specialty occupation from an ac- certification or registration to persons credited college or university; in the occupational specialty who have (2) Hold a foreign degree determined achieved a certain level of competence to be equivalent to a United States in the specialty; baccalaureate or higher degree re- (5) A determination by the Service quired by the specialty occupation that the equivalent of the degree re- from an accredited college or univer- quired by the specialty occupation has sity; been acquired through a combination (3) Hold an unrestricted State li- of education, specialized training, and/ cense, registration or certification or work experience in areas related to which authorizes him or her to fully the specialty and that the alien has practice the specialty occupation and achieved recognition of expertise in the be immediately engaged in that specialty in the state of intended employ- specialty occupation as a result of such ment; or training and experience. For purposes (4) Have education, specialized train- of determining equivalency to a bacca- ing, and/or progressively responsible laureate degree in the specialty, three experience that is equivalent to com- years of specialized training and/or pletion of a United States bacca- work experience must be demonstrated laureate or higher degree in the spe- for each year of college-level training cialty occupation, and have recogni- the alien lacks. For equivalence to an tion of expertise in the specialty advanced (or Masters) degree, the alien through progressively responsible posi- must have a baccalaureate degree fol- tions directly related to the specialty. lowed by at least five years of experi- (D) Equivalence to completion of a col- ence in the specialty. If required by a lege degree. For purposes of paragraph specialty, the alien must hold a Doc- (h)(4)(iii)(C)(4) of this section, equiva- torate degree or its foreign equivalent. lence to completion of a United States It must be clearly demonstrated that baccalaureate or higher degree shall the alien’s training and/or work experi- mean achievement of a level of knowl- ence included the theoretical and prac- edge, competence, and practice in the tical application of specialized knowl- specialty occupation that has been de- edge required by the specialty occupa- termined to be equal to that of an indi- tion; that the alien’s experience was vidual who has a baccalaureate or gained while working with peers, su- higher degree in the specialty and shall pervisors, or subordinates who have a be determined by one or more of the degree or its equivalent in the spe- following: cialty occupation; and that the alien (1) An evaluation from an official has recognition of expertise in the spe- who has authority to grant college- cialty evidenced by at least one type of level credit for training and/or experi- documentation such as: ence in the specialty at an accredited (i) Recognition of expertise in the college or university which has a pro- specialty occupation by at least two gram for granting such credit based on recognized authorities in the same spe- an individual’s training and/or work experience; cialty occupation; (2) The results of recognized college- (ii) Membership in a recognized for- level equivalency examinations or spe- eign or United States association or social credit programs, such as the Col- ciety in the specialty occupation; lege Level Examination Program (iii) Published material by or about (CLEP), or Program on Noncollegiate the alien in professional publications, Sponsored Instruction (PONSI); trade journals, books, or major news- (3) An evaluation of education by a papers; reliable credentials evaluation service (iv) Licensure or registration to prac- which specializes in evaluating foreign tice the specialty occupation in a for- educational credentials; eign country; or

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(v) Achievements which a recognized ficiary shall specifically describe the authority has determined to be signifi- beneficiary’s recognition and ability in cant contributions to the field of the factual terms and must set forth the specialty occupation. expertise of the affiant and the manner (E) Liability for transportation costs. in which the affiant acquired such in- The employer will be liable for the rea- formation. sonable costs of return transportation (B) Copies of any written contracts of the alien abroad if the alien is dis- between the petitioner and beneficiary, missed from employment by the em- or a summary of the terms of the oral ployer before the end of the period of agreement under which the beneficiary authorized admission pursuant to sec- will be employed, if there is no written tion 214(c)(5) of the Act. If the bene- contract. ficiary voluntarily terminates his or (v) Licensure for H classification—(A) her employment prior to the expiration General. If an occupation requires a of the validity of the petition, the alien state or local license for an individual has not been dismissed. If the bene- to fully perform the duties of the occu- ficiary believes that the employer has pation, an alien (except an H–1A nurse) not complied with this provision, the seeking H classification in that occu- beneficiary shall advise the Service pation must have that license prior to Center which adjudicated the petition approval of the petition to be found in writing. The complaint will be re- qualified to enter the United States tained in the file relating to the peti- and immediately engage in employ- tion. Within the context of this para- ment in the occupation. graph, the term ‘‘abroad’’ refers to the (B) Temporary licensure. If a tem- alien’s last place of foreign residence. porary license is available and the This provision applies to any employer alien is allowed to perform the duties whose offer of employment became the of the occupation without a permanent basis for an alien obtaining or continu- license, the director shall examine the ing H–1B status. nature of the duties, the level at which (iv) General documentary requirements the duties are performed, the degree of for H–1B classification in a specialty oc- supervision received, and any limita- cupation. An H–1B petition involving a tions placed on the alien. If an analysis specialty occupation shall be accom- of the facts demonstrates that the panied by: alien under supervision is authorized to (A) Documentation, certifications, fully perform the duties of the occupa- affidavits, declarations, degrees, diplo- tion, H classification may be granted. mas, writings, reviews, or any other re- (C) Duties without licensure. In certain quired evidence sufficient to establish occupations which generally require li- that the beneficiary is qualified to per- censure, a state may allow an individ- form services in a specialty occupation ual to fully practice the occupation as described in paragraph (h)(4)(i) of under the supervision of licensed senior this section and that the services the or supervisory personnel in that occu- beneficiary is to perform are in a spe- pation. In such cases, the director shall cialty occupation. The evidence shall examine the nature of the duties and conform to the following: the level at which they are performed. (1) School records, diplomas, degrees, If the facts demonstrate that the alien affidavits, declarations, contracts, and under supervision could fully perform similar documentation submitted must the duties of the occupation, H classi- reflect periods of attendance, courses fication may be granted. of study, and similar pertinent data, be (D) H–1A nurses. For purposes of li- executed by the person in charge of the censure, H–1A nurses must provide the records of the educational or other in- evidence required in paragraph stitution, firm, or establishment where (h)(3)(iii) of this section. education or training was acquired. (E) Limitation on approval of petition. (2) Affidavits or declarations made Where licensure is required in any oc- under penalty of perjury submitted by cupation, including registered nursing, present or former employers or recog- the H petition may only be approved nized authorities certifying as to the for a period of one year or for the pe- recognition and expertise of the bene- riod that the temporary license is

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valid, whichever is longer, unless the (C) Beneficiary requirement. The peti- alien already has a permanent license tion shall be accompanied by evidence to practice the occupation. An alien that the beneficiary has a bacca- who is accorded H classification in an laureate or higher degree or its equiva- occupation which requires licensure lent in the occupational field in which may not be granted an extension of he or she will be performing services in stay or accorded a new H classification accordance with paragraph (h)(4)(iii)(C) after the one year unless he or she has and/or (h)(4)(iii)(D) of this section. obtained a permanent license in the (vii) Criteria and documentary require- state of intended employment or con- ments for H–1B petitions for aliens of dis- tinues to hold a temporary license tinguished merit and ability in the field of valid in the same state for the period of fashion modeling—(A) General. Promi- the requested extension. nence in the field of fashion modeling (vi) Criteria and documentary require- may be established in the case of an in- ments for H–1B petitions involving DOD dividual fashion model. The work cooperative research and development which a prominent alien is coming to projects or coproduction projects—(A) perform in the United States must re- General. (1) For purposes of H–1B classi- quire the services of a prominent alien. fication, services of an exceptional na- A petition for an H–1B alien of distin- ture relating to DOD cooperative re- guished merit and ability in the field of search and development projects or co- fashion modeling shall be accompanied production projects shall be those serv- by: ices which require a baccalaureate or (1) Documentation, certifications, af- higher degree, or its equivalent, to per- fidavits, writings, reviews, or any other form the duties. The existence of this required evidence sufficient to estab- special program does not preclude the lish that the beneficiary is a fashion DOD from utilizing the regular H–1B model of distinguished merit and abil- provisions provided the required guide- ity. Affidavits submitted by present or lines are met. former employers or recognized experts (2) The requirements relating to a certifying to the recognition and dis- labor condition application from the tinguished ability of the beneficiary Department of Labor shall not apply to shall specifically describe the bene- petitions involving DOD cooperative ficiary’s recognition and ability in fac- research and development projects or tual terms and must set forth the ex- coproduction projects. pertise of the affiant and the manner in (B) Petitioner requirements. (1) The pe- which the affiant acquired such infor- tition must be accompanied by a ver- mation. ification letter from the DOD project (2) Copies of any written contracts manager for the particular project between the petitioner and beneficiary, stating that the alien will be working or a summary of the terms of the oral on a cooperative research and develop- agreement under which the beneficiary ment project or a coproduction project will be employed, if there is no written under a reciprocal Government-to-Gov- contract. ernment agreement administered by (B) Petitioner’s requirements. To estab- DOD. Details about the specific project lish that a position requires promi- are not required. nence, the petitioner must establish (2) The petitioner shall provide a gen- that the position meets one of the fol- eral description of the alien’s duties on lowing criteria: the particular project and indicate the (1) The services to be performed in- actual dates of the alien’s employment volve events or productions which have on the project. a distinguished reputation; (3) The petitioner shall submit a (2) The services are to be performed statement indicating the names of for an organization or establishment aliens currently employed on the that has a distinguished reputation for, project in the United States and their or record of, employing prominent per- dates of employment. The petitioner sons. shall also indicate the names of aliens (C) Beneficiary’s requirements. A peti- whose employment on the project tioner may establish that a beneficiary ended within the past year. is a fashion model of distinguished

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merit and ability by the submission of Educational Commission for Foreign two of the following forms of docu- Medical Graduates; or mentation showing that the alien: (ii) Is a graduate of a school of medi- (1) Has achieved national or inter- cine accredited by a body or bodies ap- national recognition and acclaim for proved for that purpose by the Sec- outstanding achievement in his or her retary of Education. field as evidenced by reviews in major (C) Exception for physicians of national newspapers, trade journals, magazines, or international renown. A physician or other published material; who is a graduate of a medical school (2) Has performed and will perform in a foreign state and who is of na- services as a fashion model for employ- tional or international renown in the ers with a distinguished reputation; field of medicine is exempt from the re- (3) Has received recognition for sig- quirements of paragraph (h)(4)(viii)(B) nificant achievements from organiza- of this section. tions, critics, fashion houses, modeling (5) Petition for alien to perform agricul- agencies, or other recognized experts in tural labor or services of a temporary or the field; or seasonal nature (H–2A)—(i) Filing a peti- (4) Commands a high salary or other tion—(A) General. An H–2A petition substantial remuneration for services must be filed on Form I–129. The peti- evidenced by contracts or other reli- tion must be filed with a single valid able evidence. temporary agricultural labor certifi- (viii) Criteria and documentary require- cation. However, if a certification is ments for H–1B petitions for physicians— denied, domestic labor subsequently (A) Beneficiary’s requirements. An H–1B fails to appear at the worksite, and the petition for a physician shall be accom- Department of Labor denies an appeal panied by evidence that the physician: under section 216(e)(2) of the Act, the (1) Has a license or other authoriza- written denial of appeal shall be con- tion required by the state of intended sidered a certification for this purpose employment to practice medicine, or is if filed with evidence which establishes exempt by law therefrom, if the physi- that qualified domestic labor is un- cian will perform direct patient care available. An H–2A petition may be and the state requires the license or filed by either the employer listed on authorization, and the certification, the employer’s agent, (2) Has a full and unrestricted license or the association of United States ag- to practice medicine in a foreign state ricultural producers named as a joint or has graduated from a medical school employer on the certification. in the United States or in a foreign (B) Multiple beneficiaries. The total state. number of beneficiaries of a petition or (B) Petitioner’s requirements. The peti- series of petitions based on the same tioner must establish that the alien certification may not exceed the num- physician: ber of workers indicated on that docu- (1) Is coming to the United States ment. A single petition can include primarily to teach or conduct research, more than one beneficiary if the total or both, at or for a public or nonprofit number does not exceed the number of private educational or research institu- positions indicated on the relating cer- tion or agency, and that no patient tification, and all beneficiaries will ob- care will be performed, except that tain a visa at the same consulate or are which is incidental to the physician’s not required to have a visa and will teaching or research; or apply for admission at the same port of (2) The alien has passed the Federa- entry. tion Licensing Examination (or an (C) Unnamed beneficiaries. The sole equivalent examination as determined beneficiary of an H–2A petition must be by the Secretary of Health and Human named in the petition. In a petition for Services) or is a graduate of a United multiple beneficiaries, each must be States medical school; and named unless he or she is not named in (i) Has competency in oral and writ- the certification and is outside the ten English which shall be dem- United States. Unnamed beneficiaries onstrated by the passage of the English must be shown on the petition by total language proficiency test given by the number.

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(D) Evidence. An H–2A petitioner sition other than that described in the must show that the proposed employ- relating petition. ment qualifies as a basis for H–2A sta- (C) Initial evidence. Representations tus, and that any named beneficiary required for the purpose of labor cer- qualifies for that employment. A peti- tification are initial evidence of intent. tion will be automatically denied if (iv) Temporary and seasonal employ- filed without the certification evidence ment—(A) Eligibility requirements. An required in paragraph (h)(5)(i)(A) of H–2A petitioner must establish that this section and, for each named bene- the employment proposed in the cer- ficiary, the initial evidence required in tification is of a temporary or seasonal paragraph (h)(5)(v) of this section. nature. Employment is of a seasonal (E) Special filing requirements. Where a nature where it is tied to a certain certification shows joint employers, a time of year by an event or pattern, petition must be filed with an attach- such as a short annual growing cycle or ment showing that each employer has a specific aspect of a longer cycle, and agreed to the conditions of H–2A eligi- requires labor levels far above those bility. A petition filed by an agent necessary for ongoing operations. Em- must be filed with an attachment in ployment is of a temporary nature which the employer has authorized the where the employer’s need to fill the agent to act on its behalf, has assumed position with a temporary worker will, full responsibility for all representa- except in extraordinary circumstances, tions made by the agent on its behalf, last no longer than one year. and has agreed to the conditions of H– (B) Effect of Department of Labor find- 2A eligibility. ings. In temporary agricultural labor (ii) Effect of the labor certification certification proceedings the Depart- process. The temporary agricultural ment of Labor separately tests whether labor certification process determines employment qualifies as temporary or whether employment is as an agricul- seasonal. Its finding that employment tural worker, whether it is open to U.S. qualifies is normally sufficient for the workers, if qualified U.S. workers are purpose of an H–2A petition, However, available, the adverse impact of em- notwithstanding that finding, employ- ployment of a qualified alien, and ment will be found not to be temporary whether employment conditions, in- or seasonal where an application for cluding housing, meet applicable re- permanent labor certification has been quirements. In petition proceedings a filed for the same alien, or for another petitioner must establish that the em- alien to be employed in the same posi- ployment and beneficiary meet the re- tion, by the same employer or by its quirements of paragraph (h)(5) of this parent, subsidiary or affiliate. This can section. In a petition filed with a cer- only be overcome by the petitioner’s tification denial, the petitioner must demonstration that there will be at also overcome the Department of La- least a six month interruption of em- bor’s findings regarding the availabil- ployment in the United States after H– ity of qualified domestic labor. 2A status ends. Also, eligibility will (iii) Ability and intent to meet a job not be found, notwithstanding the issu- offer—(A) Eligibility requirements. An H– ance of a temporary agricultural labor 2A petitioner must establish that each certification, where there is substan- beneficiary will be employed in accord- tial evidence that the employment is ance with the terms and conditions of not temporary or seasonal. the certification, which includes that (v) The beneficiary’s qualifications—(A) the principal duties to be performed Eligibility requirements. An H–2A peti- are those on the certification, with tioner must establish that any named other duties minor and incidental. beneficiary met the stated minimum (B) Intent and prior compliance. Req- requirements and was fully able to per- uisite intent cannot be established for form the stated duties when the appli- two years after an employer or joint cation for certification was filed. It employer, or a parent, subsidiary or af- must be established at time of applica- filiate thereof, is found to have vio- tion for an H–2A visa, or for admission lated section 274(a) of the Act or to if a visa is not required, that any have employed an H–2A worker in a po- unnamed beneficiary either met these

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requirements when the certification (h)(5)(vi)(A) of this section, the peti- was applied for or passed any certified tioner shall be given written notice and aptitude test at any time prior to visa given ten days to reply. If it does not issuance, or prior to admission if a visa demonstrate compliance, it shall be is not required. given written notice of the assessment (B) Initial evidence of employment/job of liquidated damages. training. A petition must be filed with (C) Failure to pay liquidated damages. evidence that at the required time the If liquidated damages are not paid beneficiary met the certification’s within ten days of assessment, an H–2A minimum employment and job training petition may not be processed for that requirements. Initial evidence must be petitioner or any joint employer shown in the form of the past employer’s de- on the petition until such damages are tailed statement or actual employment paid. documents, such as company payroll or (vii) Validity. An approved H–2A peti- tax records. Alternately, a petitioner tion is valid through the expiration of must show that such evidence cannot the relating certification for the pur- be obtained, and submit affidavits from pose of allowing a beneficiary to seek people who worked with the bene- issuance of an H–2A nonimmigrant ficiary that demonstrate the claimed visa, admission or an extension of stay employment. for the purpose of engaging in the spe- (C) Initial evidence of education and cific certified employment. other training. A petition must be filed (viii) Admission—(A) Effect of violation with evidence that at the required time of status. An alien may not be accorded each beneficiary met the certification’s H–2A status who the Service finds to minimum post-secondary education have violated the conditions of H–2A and other formal training require- status within the prior five years. H–2A ments. Initial evidence must be in the status is violated by remaining beyond form of documents, issued by the rel- the specific period of authorized stay evant institution or organization, that or by engaging in unauthorized em- show periods of attendance, majors and ployment. degrees or certificates accorded. (B) Period of admission. Notwithstand- (vi) Petition agreements—(A) Consent ing paragraph (h)(13) of this section, and liabilities. In filing an H–2A peti- and except as provided in paragraph tion, a petitioner and each employer (h)(5)(ix)(C) of this section, an alien ad- consents to allow access to the site missible as an H–2A shall be admitted where the labor is being performed for for the period of the approved petition the purpose of determining compliance plus a period of up to one week before with H–2A requirements. The peti- the beginning of the approved period tioner further agrees to notify the for the purpose of travel to the work- Service in the manner specified within site, and a period following the expira- twenty-four hours if an H–2A worker tion of the H–2A petition equal to the absconds or if the authorized employ- validity period of the petition, but not ment ends more than five days before more than ten days, for the purpose of the relating certification document ex- departure or extension based on a sub- pires, and to pay liquidated damages of sequent offer of employment. However, ten dollars for each instance where it this extended admission period does cannot demonstrate compliance with not affect the beneficiary’s employ- this notification requirement. The pe- ment authorization. Such authoriza- titioner also agrees to pay liquidated tion only applies to the specific em- damages of two hundred dollars for ployment indicated in the relating pe- each instance where is cannot dem- tition, for the specific period of time onstrate that its H–2A worker either indicated. departed the United States or obtained (C) Limits on an individual’s stay. An authorized status based on another pe- alien’s stay as an H–2A is limited by tition during the period of admission or the term of an approved petition. An within five days of early termination, alien may remain longer to engage in whichever comes first. other qualifying temporary agricul- (B) Process. Where evidence indicates tural employment by obtaining an ex- noncompliance under paragraph tension of stay. However, an individual

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who has held H–2A status for a total of last no longer than the previously au- three years may not again be granted thorized employment and also will not H–2A status, or other nonimmigrant last longer than two weeks. status based on agricultural activities, (6) Petition for alien to perform tem- until such time as he or she remains porary nonagricultural services or labor outside the United States for an unin- (H–2B)—(i) General. An H–2B non- terrupted period of six months. An ab- agricultural temporary worker is an sence can interrupt the accumulation alien who is coming temporarily to the of time spent as an H–2A. If the accu- United States to perform temporary mulated stay is eighteen months or services or labor, is not displacing less, an absence is interruptive if it United States workers capable of per- lasts for at least three months. If more forming such services or labor, and than eighteen months stay has been accumulated, an absence is interruptive whose employment is not adversely af- if it lasts for at least one-sixth the ac- fecting the wages and working condi- cumulated stay. Eligibility under this tions of United States workers. subparagraph will be determined in ad- (ii) Temporary services or labor—(A) mission, change of status or extension Definition. Temporary services or labor proceedings. An alien found eligible for under the H–2B classification refers to a shorter period of H–2A status than any job in which the petitioner’s need that indicated by the petition due to for the duties to be performed by the the application of this subparagraph employee(s) is temporary, whether or shall only be admitted for that abbre- not the underlying job can be described viated period. as permanent or temporary. (ix) Substitution of beneficiaries after (B) Nature of petitioner’s need. As a admission. An H–2A petition may be general rule, the period of the petition- filed to replace H–2A workers whose er’s need must be a year or less, al- employment was terminated early. The though there may be extraordinary cir- petition must be filed with a copy of cumstances where the temporary serv- the certification document, a copy of ices or labor might last longer than the approval notice covering the work- one year. The petitioner’s need for the ers for which replacements are sought, services or labor shall be a one-time and other evidence required by para- occurrence, a seasonal need, a peakload graph (h)(5)(i)(D) of this section. It need, or an intermittent need: must also be filed with a statement giving each terminated worker’s name, (1) One-time occurence. The petitioner date and country of birth, termination must establish that it has not em- date, and evidence the worker has de- ployed workers to perform the services parted the United States. A petition or labor in the past and that it will not for a replacement may not be approved need workers to perform the services or where the requirements of paragraph labor in the future, or that it has an (h)(5)(vi) of this section have not been employment situation that is other- met. A petition for replacements does wise permanent, but a temporary event not constitute the notice that an H–2A of short duration has created the need worker has absconded or has ended au- for a temporary worker. thorized employment more than five (2) Seasonal need. The petitioner must days before the relating certification establish that the services or labor is expires. traditionally tied to a season of the (x) Extensions without labor certifi- year by an event or pattern and is of a cation. A single H–2A petition may be recurring nature. The petitioner shall extended without a certification if it is specify the period(s) of time during based on approval of the alien’s appli- each year in which it does not need the cation for extension of stay for a con- services or labor. The employment is tinuation of the employment author- not seasonal if the period during which ized by the approval of a previous H–2A the services or labor is not needed is petition filed with a certification (but not a certification extension granted unpredictable or subject to change or is under 20 CFR 655.106(c)(3)), and the pro- considered a vacation period for the pe- posed continuation of employment will titioner’s permanent employees.

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(3) Peakload need. The petitoner must (D) The Secretary of Labor and the establish that it regularly employs per- Governor of Guam shall separately es- manent workers to perform the serv- tablish procedures for administering ices or labor at the place of employ- the temporary labor certification pro- ment and that it needs to supplement gram under his or her jurisdiction. its permanent staff at the place of em- (E) After obtaining a determination ployment on a temporary basis due to from the Secretary of Labor or the a seasonal or short-term demand and Governor of Guam, as appropriate, the that the temporary additions to staff petitioner shall file a petition on I–129, will not become a part of the petition- accompanied by the labor certification er’s regular operation. determination and supporting docu- (4) Intermittent need. The petitioner ments, with the director having juris- must establish that it has not em- diction in the area of intended employ- ployed permanent or full-time workers ment. to perform the services or labor, but (iv) Labor certifications, except Guam— occasionally or intermittently needs (A) Secretary of Labor’s determination. temporary workers to perform services An H–2B petition for temporary em- or labor for short periods. ployment in the United States, except (iii) Procedures. (A) Prior to filing a for temporary employment on Guam, petition with the director to classify shall be accompanied by a labor certifi- an alien as an H–2B worker, the peti- cation determination that is either: tioner shall apply for a temporary (1) A certification from the Secretary labor certification with the Secretary of Labor stating that qualified workers of Labor for all areas of the United in the United States are not available States, except the Territory of Guam. and that the alien’s employment will In the Territory of Guam, the petition- not adversely affect wages and working ing employer shall apply for a tem- conditions of similary employed United porary labor certification with the States workers; or Governor of Guam. The labor certifi- (2) A notice detailing the reasons cation shall be advice to the director why such certification cannot be made. on whether or not United States work- Such notice shall address the availabil- ers capable of performing the tem- ity of U.S. workers in the occupation porary services or labor are available and the prevailing wages and working and whether or not the alien’s employ- conditions of U.S. workers in the occu- ment will adversely affect the wages pation. and working conditions of similarly (B) Validity of the labor certification. employed United States workers. The Secretary of Labor may issue a (B) An H–2B petitioner shall be a temporary labor certification for a pe- United States employer, or the author- riod of up to one year. ized representative of a foreign em- (C) U.S. Virgin Islands. Temporary ployer having a location in the United labor certifications filed under section States. The petitioning employer shall 101(a)(15)(H)(ii)(b) of the Act for em- consider available U.S. workers for the ployment in the United States Virgin temporary services or labor, and shall Islands may be approved only for enter- offer terms and conditions of employ- tainers and athletes and only for peri- ment which are consistent with the na- ods not to exceed 45 days. ture of the occupation, activity, and (D) Attachment to petition. If the peti- industry in the United States. tioner receives a notice from the Sec- (C) The petitioner may not file an H– retary of Labor that certification can- 2B petition unless the United States not be made, a petition containing petitioner has applied for a labor cer- countervailing evidence may be filed tification with the Secretary of Labor with the director. The evidence must or the Governor of Guam within the show that qualified workers in the time limits prescribed or accepted by United States are not available, and each, and has obtained a labor certifi- that the terms and conditions of em- cation determination as required by ployment are consistent with the na- paragraph (h)(6)(iv) or (h)(6)(v) of this ture of the occupation, activity, and section. industry in the United States. All such

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evidence submitted will be considered workers, the prevailing wage rate, and in adjudicating the petition. each of the reasons why the Governor (E) Countervailing evidence. The coun- of Guam could not make the required tervailing evidence presented by the certification. The petitioner may also petitioner shall be in writing and shall provide any other appropriate informa- address availability of U.S. workers, tion in support of the petition. The di- the prevailing wage rate for the occu- rector, at his or her discretion, may re- pation of the United States, and each quire additional supporting evidence. of the reasons why the Secretary of (E) Criteria for Guam labor certifi- Labor could not grant a labor certifications. The Governor of Guam shall, in cation. The petitioner may also submit consultation with the Service, estab- other appropriate information in sup- lish systematic methods for determin- port of the petition. The director, at ing the prevailing wage rates and his or her discretion, may require addi- working conditions for individual occu- tional supporting evidence. pations on Guam and for making deter- (v) Labor certification for Guam—(A) minations as to availability of quali- Governor of Guam’s determination. An H– fied United States residents. 2B petition for temporary employment (1) Prevailing wage and working condi- on Guam shall be accompanied by a tions. The system to determine wages labor certification determination that and working conditions must provide is either: for consideration of wage rates and em- (1) A certification from the Governor ployment conditions for occupations in of Guam stating that qualified workers both the private and public sectors, in in the United States are not available Guam and/or in the United States (as to perform the required services, and defined in section 101(a)(38) of the Act), that the alien’s employment will not and may not consider wages and work- adversely affect the wages and working ing conditions outside of the United conditions of United States resident States. If the system includes workers who are similarly employed on utilitzation of advisory opinions and Guam; or consultations, the opinions must be (2) A notice detailing the reasons provided by officially sanctioned why such certification cannot be made. groups which reflect a balance of the Such notice shall address the availabil- interests of the private and public sec- ity of U.S. workers in the occupation tors, government, unions and manage- and/or the prevailing wages and work- ment. ing conditions of U.S. workers in the (2) Availability of United States work- occupation. ers. The system for determining avail- (B) Validity of labor certification. The ability of qualified United States work- Governor of Guam may issue a tem- ers must require the prospective em- porary labor certification for a period ployer to: up to one year. (i) Advertise the availability of the (C) Attachments to petition. If the em- position for a minimum of three con- ployer receives a notice from the Gov- secutive days in the newspaper with ernor of Guam that certification can- the largest daily circulation on Guam; not be made, a petition containing (ii) Place a job offer with an appro- countervailing evidence may be filed priate agency of the Territorial Gov- with the director. The evidence must ernment which operates as a job refer- show that qualified workers in the ral service at least 30 days in advance United States are not available, and of the need for the services to com- that the terms and conditions of em- mence, except that for applications ployment are consistent with the na- from the armed forces of the United ture of the occupation, activity, and States and those in the entertainment industry in the United States. All such industry, the 30-day period may be re- evidence submitted will be considered duced by the Governor to 10 days; in adjudicating the petition. (iii) Conduct appropriate recruitment (D) Countervailing evidence. The coun- in other areas of the United and its ter- tervailing evidence presented by the ritories if sufficient qualified United petitioner shall be in writing and shall States construction workers are not address availability of United States available on Guam to fill a job. The

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Governor of Guam may require a job formation shall be submitted quarterly order to be placed more than 30 days in no later than 30 days after the quarter advance of need to accommodate such ends. recruitment; (H) Invalidation of temporary labor cer- (iv) Report to the appropriate agency tification issued by the Governor of the names of all United States resident Guam—(1) General. A temporary labor workers who applied for the position, certification issued by the Governor of indicating those hired and the job-re- Guam may be invalidated by a director lated reasons for not hiring; if it is determined by the director or a (v) Offer all special considerations, court of law that the certification re- such as housing and transportation ex- quest involved fraud or willful mis- penses, to all United States resident representation. A temporary labor cer- workers who applied for the position, tification may also be invalidated if indicating those hired and the job-re- the director determines that the cer- lated reasons for not hiring; tification involved gross error. (vi) Meet the prevailing wage rates and working conditions determined (2) Notice of intent to invalidate. If the under the wages and working condi- director intends to invalidate a tem- tions system by the Governor; and porary labor certification, a notice of (vii) Agree to meet all Federal and intent shall be served upon the em- Territorial requirements relating to ployer, detailing the reasons for the in- employment, such as nondiscrimina- tended invalidation. The employer tion, occupational safety, and mini- shall have 30 days in which to file a mum wage requirements. written response in rebuttal to the no- (F) Approval and publication of em- tice of intent. The director shall con- ployment systems on Guam—(1) Systems. sider all evidence submitted upon re- The Commissioner of Immigration and buttal in reaching a decision. Naturalization must approve the sys- (3) Appeal of invalidation. An em- tem to determine prevailing wages and ployer may appeal the invalidation of a working conditions and the system to temporary labor certification in ac- determine availability of United States cordance with part 103 of this chapter. resident workers and any future modi- (vi) Evidence for H–2B petitions. An H– fications of the systems prior to imple- 2B petition shall be accompanied by: mentation. If the Commissioner, in (A) Labor certification or notice. A consultation with the Secretary of temporary labor certification or a no- Labor, finds that the systems or modi- tice that certification cannot be made, fied systems meet the requirements of issued by the Secretary of Labor or the this section, the Commissioner shall Governor of Guam, as appropriate; publish them as a notice in the FED- (B) Countervailing evidence. Evidence ERAL REGISTER and the Governor shall to rebut the Secretary of Labor’s or publish them as a public record in the Governor of Guam’s notice that Guam. certification cannot be made, if appro- (2) Approval of construction wage rates. priate; The Commissioner must approve specific wage data and rates used for con- (C) Alien’s qualifications. Documenta- struction occupations on Guam prior tion that the alien qualifies for the job to implementation of new rates. The offer as specified in the application for Governor shall submit new wage sur- labor certification, except in petitions vey data and proposed rates to the where the labor certification applica- Commissioner for approval at least tion requires no education, training, eight weeks before authority to use ex- experience, or special requirements of isting rates expires. Surveys shall be the beneficiary; and conducted at least every two years, un- (D) Statement of need. A statement de- less the Commissioner prescribes a scribing in detail the temporary situa- lesser period. tion or conditions which make it nec- (G) Reporting. The Governor shall essary to bring the alien to the United provide the Commissioner statistical States and whether the need is a one- data on temporary labor certification time occurrence, seasonal, peakload, or workload and determinations. This in- intermittent. If the need is seasonal,

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peakload, or intermittent, the state- is a genuine need for the nurse to re- ment shall indicate whether the situa- ceive a brief period of training that is tion or conditions are expected to be unavailable in the alien’s native coun- recurrent. try and such training is designed to (E) Liability for transportation costs. benefit the nurse and the overseas em- The employer will be liable for the rea- ployer upon the nurse’s return to the sonable costs of return transportation country of origin, if: of the alien abroad, if the alien is dis- (1) The beneficiary has obtained a missed from employment for any rea- full and unrestricted license to prac- son by the employer before the end of tice professional nursing in the coun- the period of authorized admission pur- try where the beneficiary obtained a suant to section 214(c)(5) of the Act. If nursing education, or such education the beneficiary voluntarily terminates was obtained in the United States or his or her employment prior to the ex- Canada; and piration of the validity of the petition, (2) The petitioner provides a state- the alien has not been dismissed. If the ment certifying that the beneficiary is beneficiary believes that the employer fully qualified under the laws govern- has not complied with this provision, ing the place where the training will be the beneficiary shall advise the Service received to engage in such training, Center which adjudicated the petition and that under those laws the peti- in writing. The complaint will be re- tioner is authorized to give the bene- tained in the file relating to the peti- ficiary the desired training. tion. Within the context of this para- (ii) Evidence required for petition in- graph, the term ‘‘abroad’’ means the volving alien trainee—(A) Conditions. alien’s last place of foreign residence. The petitioner is required to dem- This provision applies to any employer onstrate that: whose offer of employment became the (1) The proposed training is not avail- basis for the alien obtaining or con- able in the alien’s own country; tinuing H–2B status. (2) The beneficiary will not be placed (7) Petition for alien trainee or partici- in a position which is in the normal op- pant in a special education exchange visi- eration of the business and in which tor program (H–3)—(i) Alien trainee. The citizens and resident workers are regu- H–3 trainee is a nonimmigrant who larly employed; seeks to enter the United States at the (3) The beneficiary will not engage in invitation of an organization or indi- productive employment unless such vidual for the purpose of receiving employment is incidental and nec- training in any field of endeavor, such essary to the training; and as agriculture, commerce, communica- (4) The training will benefit the bene- tions, finance, government, transpor- ficiary in pursuing a career outside the tation, or the professions, as well as United States. training in a purely industrial estab- (B) Description of training program. lishment. This category shall not apply Each petition for a trainee must in- to physicians, who are statutorily include a statement which: eligible to use H–3 classification in (1) Describes the type of training and order to receive any type of graduate supervision to be given, and the struc- medical education or training. ture of the training program; (A) Externs. A hospital approved by (2) Sets forth the proportion of time the American Medical Association or that will be devoted to productive em- the American Osteopathic Association ployment; for either an internship or residency (3) Shows the number of hours that program may petition to classify as an will be spent, respectively, in class- H–3 trainee a medical student attend- room instruction and in on-the-job ing a medical school abroad, if the training; alien will engage in employment as an (4) Describes the career abroad for extern during his/her medical school which the training will prepare the vacation. alien; (B) Nurses. A petitioner may seek H– (5) Indicates the reasons why such 3 classification for a nurse who is not training cannot be obtained in the H–1 if it can be established that there alien’s country and why it is necessary

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for the alien to be trained in the Unit- (B) Evidence. An H–3 petition for a ed States; and participant in a special education ex- (6) Indicates the source of any remu- change visitor program shall be accom- neration received by the trainee and panied by: any benefit which will accrue to the pe- (1) A description of the training pro- titioner for providing the training. gram and the facility’s professional (iii) Restrictions on training program staff and details of the alien’s partici- for alien trainee. A training program pation in the training program (any may not be approved which: custodial care of children must be inci- (A) Deals in generalities with no dental to the training), and fixed schedule, objectives, or means of (2) Evidence that the alien partici- evaluation; pant is nearing completion of a bacca- (B) Is incompatible with the nature laureate or higher degree in special of the petitioner’s business or enter- education, or already holds such a de- prise; gree, or has extensive prior training (C) Is on behalf of a beneficiary who and experience in teaching children already possesses substantial training with physical, mental, or emotional and expertise in the proposed field of disabilities. training; (8) Numerical limits—(i) Limits on af- (D) Is in a field in which it is un- fected categories. During each fiscal likely that the knowledge or skill will be used outside the United States; year, the total number of aliens who can be provided nonimmigrant classi- (E) Will result in productive employment beyond that which is incidental fication is limited as follows: and necessary to the training; (A) Aliens classified as H1–B non- (F) Is designed to recruit and train immigrants, excluding those involved aliens for the ultimate staffing of do- in DOD research and development mestic operations in the United States; projects or coproduction projects, may (G) Does not establish that the peti- not exceed 65,000. tioner has the physical plant and suffi- (B) Aliens classified as H–1B non- ciently trained manpower to provide immigrants to work for DOD research the training specified; or and development projects or coproduc- (H) Is designed to extend the total al- tion projects may not exceed 100 at any lowable period of practical training time. previously authorized a nonimmigrant (C) Aliens classified as H–2B non- student. immigrants may not exceed 66,000. (iv) Petition for participant in a special (D) Aliens classified as H–3 non- education exchange visitor program—(A) immigrant participants in a special General Requirements. (1) The H–3 par- education exchange visitor program ticipant in a special education training may not exceed 50. program must be coming to the United (ii) Procedures. (A) Each alien issued States to participate in a structured a visa or otherwise provided non- program which provides for practical immigrant status under section training and experience in the edu- 101(a)(15)(H)(i)(b) of the Act shall be cation of children with physical, men- counted for purposes of the numerical tal, or emotional disabilities. limit. Requests for petition extension (2) The petition must be filed by a fa- or extension of an alien’s stay shall not cility which has professionally trained be counted for the purpose of the nu- staff and a structured program for pro- merical limit. The spouse and children viding education to children with disabilities, and for providing training of principal aliens classified as H–4 and hands-on experience to partici- nonimmigrants shall not be counted pants in the special education ex- against the numerical limit. change visitor program. (B) Numbers will be assigned tempo- (3) The requirements in this section rarily to each alien (or job opening(s) for alien trainees shall not apply to pe- for aliens in petitions with unnamed titions for participants in a special beneficiaries) included in a new peti- education exchange visitor program. tion in the order that petitions are

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filed. If a petition is denied, the num- that the services or training will begin, ber(s) originally assigned to the peti- the approved petition and approval no- tion shall be returned to the system tice shall show the actual dates re- which maintains and assigns numbers. quested by the petitioner as the valid- (C) For purposes of assigning num- ity period, not to exceed the limits bers to aliens on petitions filed in specified by paragraph (h)(9)(iii) of this Guam and the Virgin Islands, Service section or other Service policy. Headquarters Adjudications shall as- (B) If a new H petition is approved sign numbers to these locations from after the date the petitioner indicates the central system which controls and that the services or training will begin, assigns numbers to petitions filed in the approved petition and approval no- other locations of the United States. tice shall show a validity period com- (D) When an approved petition is not mencing with the date of approval and used because the beneficiary(ies) does ending with the date requested by the not apply for admission to the United petitioner, as long as that date does States, the petitioner shall notify the not exceed either the limits specified Service Center Director who approved by paragraph (h)(9)(iii) of this section the petition that the number(s) has not or other Service policy. been used. The petition shall be re- (C) If the period of services or train- voked pursuant to paragraph (h)(11)(ii) ing requested by the petitioner exceeds of this section and the unused num- the limit specified in paragraph ber(s) shall be returned to the system (h)(9)(iii) of this section, the petition which maintains and assigns numbers. shall be approved only up to the limit (E) If the total numbers available in specified in that paragraph. a fiscal year are used, new petitions (iii) Validity. The initial approval pe- and the accompanying fee shall be re- riod of an H petition shall conform to jected and returned with a notice that the limits prescribed as follows: numbers are unavailable for the par- (A) H–1A petition. An approved peti- ticular nonimmigrant classification tion for an alien classified under sec- until the beginning of the next fiscal tion 101(a)(15)(H)(i)(a) of the Act shall year. be valid for a period of up to three (9) Approval and validity of petition— years. (i) Approval. The director shall consider (B)(1) H–1B petition in a specialty occu- all the evidence submitted and such pation. An approved petition classified other evidence as he or she may inde- under section 101(a)(15)(H)(i)(b) of the pendently require to assist his or her Act for an alien in a specialty occupa- adjudication. The director shall notify tion shall be valid for a period of up to the petitioner of the approval of the pe- three years but may not exceed the va- tition on Form I–797, Notice of Action. lidity period of the labor condition ap- The approval shall be as follows: plication. (A) The approval notice shall include (2) H–1B petition involving a DOD re- the beneficiary’s(ies’) name(s) and clas- search and development or coproduction sification and the petition’s period of project. An approved petition classified validity. A petition for more than one under section 101(a)(15)(H)(i)(b) of the beneficiary and/or multiple services Act for an alien involved in a DOD re- may be approved in whole or in part. search and development project or a The approval notice shall cover only coproduction project shall be valid for those beneficiaries approved for classi- a period of up to five years. fication under section 101(a)(15)(H) of (3) H–1B petition involving an alien of the Act. distinguished merit and ability in the field (B) The petition may not be filed or of fashion modeling. An approved peti- approved earlier than six months be- tion classified under section fore the date of actual need for the 101(a)(15)(H)(i)(b) of the Act for an alien beneficiary’s services or training. of distinguished merit and ability in (ii) Recording the validity of petitions. the field of fashion modeling shall be Procedures for recording the validity valid for a period of up to three years. period of petitions are: (C) H–2B petition—(1) Labor certifi- (A) If a new H petition is approved cation attached. If a certification by the before the date the petitioner indicates Secretary of Labor or the Governor of

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Guam is attached to a petition to ac- half and has been granted a non- cord an alien a classification under sec- immigrant classification authorizing tion 101(a)(15)(H)(ii)(B) of the Act, the his or her employment. approval of the petition shall be valid (10) Denial of petition—(i) Multiple for a period of up to one year. beneficiaries. A petition for multiple (2) Notice that certification cannot be beneficiaries may be denied in whole or made attached—(i) Countervailing evi- in part. dence. If a petition is submitted con- (ii) Notice of intent to deny. When an taining a notice from the Secretary of adverse decision is proposed on the Labor or the Governor of Guam that basis of derogatory inform U.S. ation certification cannot be made, and is of which the petitioner is unaware, the not accompanied by countervailing evi- director shall notify the petitioner of dence, the petitioner shall be informed the intent to deny the petition and the that he or she may submit the counter- basis for the denial. The petitioner vailing evidence in accordance with may inspect and rebut the evidence and paragraphs (h)(6)(iii)(E) and will be granted a period of 30 days from (h)(6)(iv)(D) of this section. the date of the notice in which to do (ii) Approval. In any case where the so. All relevant rebuttal material will director decides that approval of the H– be considered in making a final deci- 2B petition is warranted despite the is- sion. suance of a notice by the Secretary of (iii) Notice of denial. The petitioner Labor or the Governor of Guam that shall be notified of the reasons for the certification cannot be made, the ap- denial, and of his or her right to appeal proval shall be certified by the Direc- the denial of the petition under 8 CFR tor to the Commissioner pursuant to 8 part 103. There is no appeal from a de- CFR 103.4. In emergent situations, the cision to deny an extension of stay to certification may be presented by tele- the alien. phone to the Chief of the Administra- tive Appeals Unit, Central Office. If ap- (11) Revocation of approval of peti- proved, the petition is valid for the pe- tion—(i) General. (A) The petitioner riod of established need not to exceed shall immediately notify the Service of one year. There is no appeal from a de- any changes in the terms and condi- cision which has been certified to the tions of employment of a beneficiary Commissioner. which may affect eligibility under sec- (D)(1) H–3 petition for alien trainee. An tion 101(a)(15)(H) of the Act and para- approved petition for an alien trainee graph (h) of this section. An amended classified under section petition on Form I–129 should be filed 101(a)(15)(H)(iii) of the Act shall be when the petitioner continues to em- valid for a period of up to two years. ploy the beneficiary. If the petitioner (2) H–3 petition for alien participant in no longer employs the beneficiary, the a special education training program. An petitioner shall send a letter explain- approved petition for an alien classi- ing the change(s) to the director who fied under section 101(a)(15)(H)(iii) of approved the petition. the Act as a participant in a special (B) The director may revoke a peti- education exchange visitor program tion at any time, even after the expira- shall be valid for a period of up to 18 tion of the petition. months. (ii) Automatic revocation. The ap- (iv) Spouse and dependents. The proval of any petition is automatically spouse and unmarried minor children revoked if the petitioner goes out of of the beneficiary are entitled to H business or files a written withdrawal nonimmigrant classification, subject of the petition. to the same period of admission and (iii) Revocation on notice—(A) Grounds limitations as the beneficiary, if they for revocation. The director shall send are accompanying or following to join to the petitioner a notice of intent to the beneficiary in the United States. revoke the petition in relevant part if Neither the spouse nor a child of the he or she finds that: beneficiary may accept employment (1) The beneficiary is no longer em- unless he or she is the beneficiary of an ployed by the petitioner in the capac- approved petition filed in his or her be- ity specified in the petition, or if the

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beneficiary is no longer receiving fulfillment of the required time abroad. training as specified in the petition; or The petitioner shall provide informa- (2) The statement of facts contained tion about the alien’s employment, in the petition was not true and cor- place of residence, and the dates and rect; or purposes of any trips to the United (3) The petitioner violated terms and States during the period that the alien conditions of the approved petition; or was required to spend time abroad. (4) The petitioner violated require- (ii) H–1A limitation on admission. An ments of section 101(a)(15)(H) of the Act H–1A alien who has spent five, or in or paragraph (h) of this section; or certain extraordinary circumstances, (5) The approval of the petition vio- six years in the United States under lated pargraph (h) of this section or in- section 101(a)(15)(H) of the Act may not volved gross error. seek extension, change status, or be re- (B) Notice and decision. The notice of admitted to the United States under intent to revoke shall contain a de- section 101(a)(15)(H) of the Act unless tailed statement of the grounds for the the alien has resided and been phys- revocation and the time period allowed ically present outside the United for the petitioner’s rebuttal. The peti- States, except for brief trips for pleas- tioner may submit evidence in rebuttal ure or business, for the immediate within 30 days of receipt of the notice. prior year. The director shall consider all relevant (iii) H–1B limitation on admission. (A) evidence presented in deciding whether Alien in a specialty occupation or an to revoke the petition in whole or in alien of distinguished merit and ability in part. If the petition is revoked in part, the field of fashion modeling. An H–1B the remainder of the petition shall remain approved and a revised approval alien in a specialty occupation or an notice shall be sent to the petitioner alien of distinguished merit and ability with the revocation notice. who has spent six years in the United (12) Appeal of a denial or a revocation States under section 101(a)(15)(H) and/ of a petition—(i) Denial. A petition de- or (L) of the Act may not seek exten- nied in whole or in part may be ap- sion, change status, or be readmitted pealed under part 103 of this chapter. to the United States under section (ii) Revocation. A petition that has 101(a)(15) (H) or (L) of the Act unless been revoked on notice in whole or in the alien has resided and been phys- part may be appealed under part 103 of ically present outside the United this chapter. Automatic revocations States, except for brief trips for busi- may not be appealed. ness or pleasure, for the immediate (13) Admission—(i) General. (A) A ben- prior year. eficiary shall be admitted to the Unit- (B) Alien involved in a DOD research ed States for the validity period of the and development or coproduction project. petition, plus a period of up to 10 days An H–1B alien involved in a DOD re- before the validity period begins and 10 search and development or coproduc- days after the validity period ends. The tion project who has spent 10 years in beneficiary may not work except dur- the United States under section ing the validity period of the petition. 101(a)(15) (H) and/or (L) of the Act may (B) When an alien in an H classifica- not seek extension, change status, or tion has spent the maximum allowable be readmitted to the United States period of stay in the United States, a under section 101(a)(15) (H) or (L) of the new petition under sections 101(a)(15) Act to perform services involving a (H) or (L) of the Act may not be ap- DOD research and development project proved unless that alien has resided or coproduction project. A new petition and been physically present outside the or change of status under section United States, except for brief trips for 101(a)(15) (H) or (L) of the Act may not business or pleasure, for the time limit be approved for such an alien unless imposed on the particular H classifica- the alien has resided and been phys- tion. Brief trips to the United States ically present outside the United for business or pleasure during the re- States, except for brief trips for busi- quired time abroad are not ness or pleasure, for the immediate interruptive, but do not count towards prior year.

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(iv) H–2B and H–3 limitation on admis- The beneficiary must be physically sion. An H–2B alien who has spent 3 present in the United States at the years in the United States under sec- time of the filing of the extension of tion 101(a)(15)(H) and/or (L) of the Act; stay. Even though the requests to ex- an H–3 alien participant in a special tend the petition and the alien’s stay education program who has spent 18 are combined on the petition, the di- months in the United States under sec- rector shall make a separate deter- tion 101(a)(15)(H) and/or (L) of the Act; mination on each. If the alien is re- and an H–3 alien trainee who has spent quired to leave the United States for 24 months in the United States under business or personal reasons while the section 101(a)(15)(H) and/or (L) of the extension requests are pending, the pe- Act may not seek extension, change titioner may request the director to status, or be readmitted to the United cable notification of approval of the pe- States under section 101(a)(15)(H) and/ tition extension to the consular office or (L) of the Act unless the alien has abroad where the alien will apply for a resided and been physically present visa. When the total period of stay in outside the United States for the im- an H classification has been reached, mediate prior 6 months. no further extensions may be granted. (v) Exceptions. The limitations in (ii) Extension periods—(A) H–1A exten- paragraph (h)(13)(ii) through (h)(13)(iv) sion of stay. An extension of stay may of this section shall not apply to H–1A, be authorized for a period of up to two H–1B, H–2B, and H–3 aliens who did not years for a beneficiary of an H–1A peti- reside continually in the United States tion. The alien’s total period of stay and whose employment in the United may not exceed five years, except in States was seasonal or intermittent or extraordinary circumstances. An H–1A was for an aggregate of six months or alien who has been in the United less per year. In addition, the limita- States for a period of five years in such tions shall not apply to aliens who re- status may receive a one-year exten- side abroad and regularly commute to sion of stay if it is established by the the United States to engage in part- petitioner that extraordinary cir- time employment. To qualify for this cumstances exist which warrant such exception, the petitioner and the alien an extension. Extraordinary cir- must provide clear and convincing cumstances shall exist when the direc- proof that the alien qualifies for such tor finds that termination of the an exception. Such proof shall consist alien’s services will impose extreme of evidence such as arrival and depar- hardship on the petitioner’s business ture records, copies of tax returns, and operation or that the alien’s services records of employment abroad. are required in the national welfare, (14) Extension of visa petition validity. safety, or security interests of the The petitioner shall file a request for a United States. Each request for an ex- petition extension on Form I–129 to extension of stay for the beneficiary of an tend the validity of the original peti- H–1A petition must be accompanied by tion under section 101(a)(15)(H) of the a current copy of the Department of Act. Supporting evidence is not re- Labor’s notice of acceptance of the pe- quired unless requested by the director. titioner’s attestation on Form ETA A request for a petition extension may 9029. A request for an extension of stay be filed only if the validity of the origi- filed in behalf of an alien who initially nal petition has not expired. entered the United States on the basis (15) Extension of stay—(i) General. The of a temporary license must be accom- petitioner shall apply for extension of panied by evidence that the alien has an alien’s stay in the United States by remained in a valid H–1A status since filing a petition extension on Form I– his or her initial entry into the United 129 accompanied by the documents de- States. scribed for the particular classification (B) H–1B extension of stay—(1) Alien in in paragraph (h)(15)(ii) of this section. a specialty occupation or an alien of dis- The petitioner must also request a pe- tinguished merit and ability in the field of tition extension. The dates of exten- fashion modeling. An extension of stay sion shall be the same for the petition may be authorized for a period of up to and the beneficiary’s extension of stay. three years for a beneficiary of an H–1B

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petition in a specialty occupation or an tification, or the filing of a preference alien of distinguished merit and abil- petition for an alien currently em- ity. The alien’s total period of stay ployed by or in a training position with may not exceed six years. The request the same petitioner, shall be a reason, for extension must be accompanied by by itself, to deny the alien’s extension either a new or a photocopy of the of stay. prior certification from the Depart- (17) Effect of a strike—(i) If the Sec- ment of Labor that the petitioner con- retary of Labor certifies to the Com- tinues to have on file a labor condition missioner that a strike or other labor application valid for the period of time dispute involving a work stoppage of requested for the occupation. workers is in progress in the occupa- (2) Alien in a DOD research and devel- tion and at the place where the bene- opment or coproduction project. An ex- ficiary is to be employed or trained, tension of stay may be authorized for a and that the employment of training of period up to five years for the bene- the beneficiary would adversely affect ficiary of an H–1B petition involving a the wages and working conditions of DOD research and development project U.S. citizens and lawful resident work- or coproduction project. The total peers: riod of stay may not exceed 10 years. (A) A petition to classify an alien as (C) H–2A or H–2B extension of stay. An a nonimmigrant as defined in section extension of stay for the beneficiary of 101(a)(15)(H) of the Act shall be denied. an H–2A or H–2B petition may be au- (B) If a petition has already been ap- thorized for the validity of the labor proved, but the alien has not yet en- certification or for a period of up to tered the United States, or has entered one year, except as provided for in the United States but has not com- paragraph (h)(5)(x) of this section. The menced the employment, the approval alien’s total period of stay as an H–2A of the petition is automatically sus- or H–2B worker may not exceed three pended, and the application for admis- years, except that in the Virgin Is- sion on the basis of the petition shall lands, the alien’s total period of stay be denied. may not exceed 45 days. (ii) If there is a strike or other labor (D) H–3 extension of stay. An exten- dispute involving a work stoppage of sion of stay may be authorized for the workers in progress, but such strike or length of the training program for a other labor dispute is not certified total period of stay as an H–3 trainee under paragraph (h)(17)(i), the Commis- not to exceed two years, or for a total sioner shall not deny a petition or sus- period of stay as a participant in a spe- pend an approved petition. cial education training program not to (iii) If the alien has already com- exceed 18 months. menced employment in the United (16) Effect of approval of a permanent States under an approved petition and labor certification or filing of a preference is participating in a strike or other petition on H classification—(i) H–1A or labor dispute involving a work stop- H–1B classification. The approval of a page of workers, whether or not such permanent labor certification or the strike or other labor dispute has been filing of a preference petition for an certified by the Department of Labor, alien shall not be a basis for denying the alien shall not be deemed to be fail- an H–1A or H–1B petition or a request ing to maintain his or her status solely to extend such a petition, or the alien’s on account of past, present, or future admission, change of status, or exten- participation in a strike or other labor sion of stay. The alien may legiti- dispute involving a work stoppage of mately come to the United States for a workers, but is subject to the following temporary period as an H–1A or H–1B terms and conditions: nonimmigrant and depart voluntarily (A) The alien shall remain subject to at the end of his or her authorized stay all applicable provisions of the Immi- and, at the same time, lawfully seek to gration and Nationality Act, and regu- become a permanent resident of the lations promulgated in the same man- United States. ner as all other H nonimmigrants; (ii) H–2A, H–2B, and H–3 classification. (B) The status and authorized period The approval of a permanent labor cer- of stay of such an alien is not modified

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or extended in any way by virtue of his the Act and accompanying spouse and or her participation in a strike or other minor children shall not be admitted labor dispute involving a work stop- without submitting a completely exe- page of workers; and cuted Form IAP–66. The spouse and (C) Although participation by an H minor children following to join the nonimmigrant alien in a strike or participant shall not be admitted with- other labor dispute involving a work out a copy of current Form IAP–66 en- stoppage of workers will not constitute dorsed by the program sponsor indicat- a ground for deportation, any alien ing the expiration of stay date as who violates his or her status or who shown on Form I–94. Any alien seeking remains in the United States after his to change nonimmigrant status to ex- or her authorized period of stay has exchange visitor status shall file Form I– pired will be subject to deportation. 506 and attach a valid Form IAP–66. (18) Use of approval notice, Form I–797. (ii) Admission. The initial admission The Service shall notify the petitioner of an exchange alien, spouse, and chil- on Form I–797 whenever a visa petition, dren may not exceed the period speci- an extension of a visa petition, or an fied on Form IAP–66, plus a period of 30 alien’s extension of stay is approved days for the purpose of travel. Regula- under the H classification. The bene- tions of the United States Information ficiary of an H petition who does not Agency published at 22 CFR 514.23 give require a nonimmigrant visa may general limitations on the length of present a copy of the approval notice stay of the various classes of exchange at a port of entry to facilitate entry visitors. A spouse or child (J–2) may into the United States. A beneficiary not be admitted for longer than the who is required to present a visa for ad- principal exchange alien (J–1). mission and whose visa will have ex- (iii) Readmission. An exchange alien pired before the date of his or her in- may be readmitted to the United tended return may use a copy of Form States for the remainder of the time I–797 to apply for a new or revalidated authorized on Form I–94, without pre- visa during the validity period of the senting Form IAP–66, if the alien is re- petition. The copy of Form I–797 shall turning from a visit solely to foreign be retained by the beneficiary and pre- contiguous territory or adjacent is- sented during the validity of the peti- lands after an absence of less than 30 tion when reentering the United States days and if the original Form I–94 is to resume the same employment with presented. All other exchange aliens the same petitioner. must present a valid Form IAP–66. An (i) Representatives of information original Form IAP–66 or copy three media. The admission of an alien of the (the pink copy) of a previously issued class defined in section 101(a)(15)(I) of form presented by an exchange alien the Act constitutes an agreement by returning from a temporary absence the alien not to change the informa- shall be retained by the exchange alien tion medium or his or her employer for re-entries during the balance of the until he or she obtains permission to alien’s stay. do so from the district director having (iv) Extensions of Stay. If an exchange jurisdiction over his or her residence. alien requires an extension beyond the An alien classified as an information initial admission period, the alien shall media nonimmigrant (I) may be au- apply by submitting a new Form IAP– thorized admission for the duration of 66 which indicates the date to which employment. the alien’s program is extended. The (j) Exchange aliens—(1) General. (i) Ex- extension may not exceed the period change alien means a nonimmigrant ad- specified on Form IAP–66, plus a period mitted under section 101(a)(15)(J) of the of 30 days for the purpose of travel. Ex- Act or who acquired such status, or tensions of stay for the alien’s spouse who acquired exchange-visitor status and children require, as an attachment under the United States Information to Form IAP–66, Form I–94 for each de- and Education Exchange Act. Any ex- pendent, and a list containing the change alien coming to the United names of the applicants, dates and States as a participant in a program places of birth, passport numbers, issu- designated under section 101(a)(15)(J) of ing countries, and expiration dates. An

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accompanying spouse or child may not authorized by the cancelled program, be granted an extension of stay for the participant is authorized to remain longer than the principal exchange in the United States to engage in those alien. activities until expiration of the period (v) Employment. (A) The accompany- of stay previously authorized. The dis- ing spouse and minor children of a J–1 trict director shall notify participants exchange visitor may accept employ- in cancelled programs that permission ment only with authorization by the to remain in the United States as an Immigration and Naturalization Serv- exchange visitor, or extension of stay ice. A request for employment author- may be obtained if the participant is ization must be made on Form I–765, accepted in another approved program Application for Employment Author- and a Form IAP–66, executed by the ization, with fee, as required by the new program sponsor, is submitted. In Service, to the district director having this case, a release from the sponsor of jurisdiction over the J–1 exchange visi- the cancelled program will not be re- tor’s temporary residence in the United quired. States. Income from the spouse’s or de- (4) Eligibility requirements for section pendent’s employment may be used to 101(a)(15)(J) classification for aliens desir- support the family’s customary rec- ing to participate in programs under reational and cultural activities and which they will receive graduate medical related travel, among other things. education or training—(i) Requirements. Employment will not be authorized if Any alien coming to the United States this income is needed to support the J– as an exchange visitor to participate in 1 principal alien. a program under which the alien will (B) J–2 employment may be authorized for the duration of the J–1 prin- receive graduate medical education or cipal alien’s authorized stay as indi- training, or any alien seeking to cated on Form I–94 or a period of four change nonimmigrant status to that of years, whichever is shorter. The em- an exchange visitor on Form I–506 for ployment authorization is valid only if that purpose, must have passed parts of the J–1 is maintaining status. Where a I and II of the National Board of Medi- J–2 spouse or dependent child has filed cal Examiners Examination (or an a timely application for extension of equivalent examination as determined stay, only upon approval of the request by the Secretary of Health and Human for extension of stay may he or she Services), and must be competent in apply for a renewal of the employment oral and written English, and shall sub- authorization on a Form I–765 with the mit a completely executed and valid required fee. Form IAP–66. (2) Special reporting requirement. Each (ii) Exemptions. From January 10, 1978 exchange alien participating in a pro- until December 31, 1983, any alien who gram of graduate medical education or has come to or seeks to come to the training shall file Form I–644 (Supple- United States as an exchange visitor to mentary Statement for Graduate Medi- participate in an accredited program of cal Trainees) annually with the Service graduate medical education or train- attesting to the conditions as specified ing, or any alien who seeks to change on the form. The exchange alien shall nonimmigrant status for that purpose, also submit Form I–644 as an attach- may be admitted to participate in such ment to a completed Form IAP–66 program without regard to the require- when applying for an extension of stay. ments stated in subparagraphs (A) and (3) Alien in cancelled programs. When (B)(ii)(I) of section 212(j)(1) of the Act if the approval of an exchange visitor a substantial disruption in the health program is withdrawn by the Director services provided by such program of the United States Information Agen- would result from not permitting the cy, the district director shall send a alien to participate in the program: notice of the withdrawal to each par- Provided that the exemption will not ticipant in the program and a copy of increase the total number of aliens each such notice shall be sent to the then participating in such programs to program sponsor. If the exchange visi- a level greater than that participating tor is currently engaged in activities on January 10, 1978.

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(k) Fiancees and fiances of United (3) Children of beneficiary. Without States citizens—(1) Petition and support- the approval of a separate petition on ing documents. To be classified as a fi- his or her behalf, a child of the bene- ance or fiancee as defined in section ficiary (as defined in section 101(a)(15)(K) of the Act, an alien must 101(b)(1)(A), (B), (C), (D), or (E) of the be the beneficiary of an approved visa Act) may be accorded the same non- petition filed on Form I–129F. The peti- immigrant classification as the bene- tion with supporting documents shall ficiary if accompanying or following to be filed by the petitioner with the di- join him or her. rector having administrative jurisdic- (4) Notification. The petitioner shall tion over the place where the peti- be notified of the decision and, if the tioner is residing in the United States. petition is denied, of the reasons there- A copy of a document submitted in for and of the right to appeal in accord- support of a visa petition filed pursuance with the provisions of part 103 of ant to section 214(d) of the Act and this this chapter. paragraph may be accepted, though un- (5) Validity. The approval of a peti- accompanied by the original, if the tion under this paragraph shall be valid copy bears a certification by an attor- for a period of four months. A petition ney, typed or rubber-stamped, in the which has expired due to the passage of language set forth in § 204.2(j) of this time may be revalidated by a director chapter. However, the original docu- or a consular officer for a period of four ment shall be submitted if requested by months from the date of revalidation the Service. upon a finding that the petitioner and (2) Requirement that petitioner and ben- beneficiary are free to marry and in- eficiary have met. The petitioner shall tend to marry each other within 90 establish to the satisfaction of the di- days of the beneficiary’s entry into the rector that the petitioner and bene- United States. The approval of any pe- ficiary have met in person within the tition is automatically terminated two years immediately preceding the when the petitioner dies or files a writ- filing of the petition. As a matter of ten withdrawal of the petition before discretion, the director may exempt the beneficiary arrives in the United the petitioner from this requirement States. only if it is established that compli- (6) Adjustment of status from non- ance would result in extreme hardship immigrant to immigrant—(i) Non- to the petitioner or that compliance immigrant visa issued prior to November would violate strict and long-estab- 10, 1986. If the beneficiary contracts a lished customs of the beneficiary’s for- valid marriage with the petitioner eign culture or social practice, as within 90 days of his or her admission where marriages are traditionally ar- to the United States pursuant to a ranged by the parents of the contract- valid K–1 visa issued prior to November ing parties and the prospective bride 10, 1986, and the beneficiary and his or and groom are prohibited from meeting her minor children are otherwise ad- subsequent to the arrangement and missible, the director shall record their prior to the wedding day. In addition to lawful admission for permanent resi- establishing that the required meeting dence as of the date of their filing of an would be a violation of custom or prac- application for adjustment of status to tice, the petitioner must also establish lawful permanent resident (Form I– that any and all other aspects of the 485). Such residence shall be granted traditional arrangements have been or under section 214(d) of the Act as in ef- will be met in accordance with the cus- fect prior to November 10, 1986 and tom or practice. Failure to establish shall not be subject to the conditions that the petitioner and beneficiary of section 216 of the Act. have met within the required period or (ii) Nonimmigrant visa issued on or that compliance with the requirement after November 10, 1986. Upon contract- should be waived shall result in the de- ing a valid marriage to the petitioner nial of the petition. Such denial shall within 90 days of his or her admission be without prejudice to the filing of a as a nonimmigrant pursuant to a valid new petition once the petitioner and K visa issued on or after November 10, beneficiary have met in person. 1986, the beneficiary and his or her

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minor children may apply for adjust- to render his or her services to a ment of status to lawful permanent branch of the same employer or a par- resident under section 245 of the Act. ent, affiliate, or subsidiary thereof in a Upon approval of the application the capacity that is managerial, executive, director shall record their lawful ad- or involves specialized knowledge. Pe- mission for permanent residence in ac- riods spent in the United States in law- cordance with that section and subject ful status for a branch of the same em- to the conditions prescribed in section ployer or a parent, affiliate, or subsidi- 216 of the Act. ary thereof and brief trips to the Unit- (l) Intracompany transferees—(1) Ad- ed States for business or pleasure shall mission of intracompany transferees—(i) not be interruptive of the one year of General. Under section 101(a)(15)(L) of continuous employment abroad but the Act, an alien who within the pre- such periods shall not be counted to- ceding three years has been employed ward fulfillment of that requirement. abroad for one continuous year by a (B) Managerial capacity means an as- qualifying organization may be admit- signment within an organization in ted temporarily to the United States to which the employee primarily: be employed by a parent, branch, affili- (1) Manages the organization, or a de- ate, or subsidiary of that employer in a partment, subdivision, function, or managerial or executive capacity, or in component of the organization; a position requiring specialized knowl- (2) Supervises and controls the work edge. An alien transferred to the Unit- of other supervisory, professional, or ed States under this nonimmigrant managerial employees, or manages an classification is referred to as an essential function within the organiza- intracompany transferee and the orga- tion, or a department or subdivision of nization which seeks the classification the organization; of an alien as an intracompany trans- (3) Has the authority to hire and fire feree is referred to as the petitioner. or recommend those as well as other The Service has responsibility for de- personnel actions (such as promotion termining whether the alien is eligible and leave authorization) if another em- for admission and whether the peti- ployee or other employees are directly tioner is a qualifying organization. supervised; if no other employee is di- These regulations set forth the stand- rectly supervised, functions at a senior ards applicable to these classifications. level within the organizational hier- They also set forth procedures for ad- archy or with respect to the function mission of intracompany transferees managed; and and appeal of adverse decisions. Cer- (4) Exercises discretion over the day- tain petitioners seeking the classifica- to-day operations of the activity or tion of aliens as intracompany trans- function for which the employee has ferees may file blanket petitions with authority. A first-line supervisor is not the Service. Under the blanket petition considered to be acting in a managerial process, the Service is responsible for capacity merely by virtue of the super- determining whether the petitioner visor’s supervisory duties unless the and its parent, branches, affiliates, or employees supervised are professional. subsidiaries specified are qualifying or- (C) Executive capacity means an as- ganizations. The Department of State signment within an organization in or, in certain cases, the Service is re- which the employee primarily: sponsible for determining the classi- (1) Directs the management of the or- fication of the alien. ganization or a major component or (ii) Definitions—(A) Intracompany function of the organization; transferee means an alien who, within (2) Establishes the goals and policies three years preceding the time of his or of the organization, component, or her application for admission into the function; United States, has been employed (3) Exercises wide latitude in discre- abroad continuously for one year by a tionary decision-making; and firm or corporation or other legal en- (4) Receives only general supervision tity or parent, branch, affiliate, or sub- or direction from higher level execu- sidiary thereof, and who seeks to enter tives, the board of directors, or stock- the United States temporarily in order holders of the organization.

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(D) Specialized knowledge means spe- trols the entity; or owns, directly or cial knowledge possessed by an individ- indirectly, 50 percent of a 50–50 joint ual of the petitioning organization’s venture and has equal control and veto product, service, research, equipment, power over the entity; or owns, di- techniques, management, or other in- rectly or indirectly, less than half of terests and its application in inter- the entity, but in fact controls the en- national markets, or an advanced level tity. of knowledge or expertise in the orga- (L) Affiliate means (1) One of two sub- nization’s processes and procedures. sidiaries both of which are owned and (E) Specialized knowledge professional controlled by the same parent or indi- means an individual who has special- vidual, or ized knowledge as defined in paragraph (2) One of two legal entities owned (l)(1)(ii)(D) of this section and is a and controlled by the same group of in- member of the professions as defined in dividuals, each individual owning and section 101(a)(32) of the Immigration and Nationality Act. controlling approximately the same (F) New office means an organization share or proportion of each entity, or which has been doing business in the (3) In the case of a partnership that is United States through a parent, organized in the United States to pro- branch, affiliate, or subsidiary for less vide accounting services along with than one year. managerial and/or consulting services (G) Qualifying organization means a and that markets its accounting serv- United States or foreign firm, corpora- ices under an internationally recog- tion, or other legal entity which: nized name under an agreement with a (1) Meets exactly one of the qualify- worldwide coordinating organization ing relationships specified in the defi- that is owned and controlled by the nitions of a parent, branch, affiliate or member accounting firms, a partner- subsidiary specified in paragraph ship (or similar organization) that is (l)(1)(ii) of this section; organized outside the United States to (2) Is or will be doing business (en- provide accounting services shall be gaging in international trade is not reconsidered to be an affiliate of the quired) as an employer in the United United States partnership if it markets States and in at least one other coun- its accounting services under the same try directly or through a parent, internationally recognized name under branch, affiliate, or subsidiary for the the agreement with the worldwide co- duration of the alien’s stay in the Unit- ordinating organization of which the ed States as an intracompany trans- United States partnership is also a feree; and member. (3) Otherwise meets the requirements (M) Director means a Service Center of section 101(a)(15)(L) of the Act. director with delegated authority at 8 (H) Doing business means the regular, CFR 103.1. systematic, and continuous provision of goods and/or services by a qualifying (2) Filing of petitions—(i) Except as organization and does not include the provided in paragraph (l)(2)(ii) and mere presence of an agent or office of (l)(17) of this section, a petitioner seek- the qualifying organization in the ing to classify an alien as an United States and abroad. intracompany transferee shall file a pe- (I) Parent means a firm, corporation, tition on Form I–129, Petition for Non- or other legal entity which has subsidi- immigrant Worker, only at the Service aries. Center which has jurisdiction over the (J) Branch means an operating divi- area where the alien will be employed, sion or office of the same organization even in emergent situations. The peti- housed in a different location. tioner shall advise the Service whether (K) Subsidiary means a firm, corpora- it has filed a petition for the same ben- tion, or other legal entity of which a eficiary with another office, and cer- parent owns, directly or indirectly, tify that it will not file a petition for more than half of the entity and con- the same beneficiary with another of- trols the entity; or owns, directly or fice, unless the circumstances and con- indirectly, half of the entity and conditions in the initial petition have

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changed. Failure to make a full disclo- in the United States, the petitioner sure of previous petitions filed may re- shall submit evidence that: sult in a denial of the petition. (A) Sufficient physical premises to (ii) A United States petitioner which house the new office have been secured; meets the requirements of paragraph (B) The beneficiary has been em- (l)(4) of this section and seeks continu- ployed for one continuous year in the ing approval of itself and its parent, three year period preceding the filing branches, specified subsidiaries and af- of the petition in an executive or man- filiates as qualifying organizations agerial capacity and that the proposed and, later, classification under section employment involved executive or 101(a)(15)(L) of multiple numbers of managerial authority over the new op- aliens employed by itself, its parent, or eration; and those branches, subsidiaries, or affili- (C) The intended United States operates may file a blanket petition on ation, within one year of the approval Form I–129 with the director having ju- of the petition, will support an execu- risdiction over the area where the petitive or managerial position as defined tioner is located. The blanket petition in paragraphs (l)(1)(ii) (B) or (C) of this shall be adjudicated and maintained at section, supported by information re- the appropriate Service Center. Ap- garding: proved blanket petition files shall be (1) The proposed nature of the office maintained indefinitely by that Serv- describing the scope of the entity, its ice Center. The petitioner shall be the organizational structure, and its finan- single representative for the qualifying cial goals; organizations with which the Service (2) The size of the United States in- will deal regarding the blanket peti- vestment and the financial ability of tion. the foreign entity to remunerate the (3) Evidence for individual petitions. An beneficiary and to commence doing individual petition filed on Form I–129 business in the United States; and shall be accompanied by: (3) The organizational structure of (i) Evidence that the petitioner and the foreign entity. the organization which employed or will employ the alien are qualifying or- (vi) If the petition indicates that the ganizations as defined in paragraph beneficiary is coming to the United (l)(1)(ii)(G) of this section. States in a specialized knowledge ca- (ii) Evidence that the alien will be pacity to open or to be employed in a employed in an executive, managerial, new office, the petitioner shall submit or specialized knowledge capacity, in- evidence that: cluding a detailed description of the (A) Sufficient physical premises to services to be performed. house the new office have been secured; (iii) Evidence that the alien has at (B) The business entity in the United least one continuous year of full-time States is or will be a qualifying organi- employment abroad with a qualifying zation as defined in paragraph organization within the three years (l)(1)(ii)(G) of this section; and preceding the filing of the petition. (C) The petitioner has the financial (iv) Evidence that the alien’s prior ability to remunerate the beneficiary year of employment abroad was in a and to commence doing business in the position that was managerial, execu- United States. tive, or involved specialized knowledge (vii) If the beneficiary is an owner or and that the alien’s prior education, major stockholder of the company, the training, and employment qualifies petition must be accompanied by evi- him/her to perform the intended serv- dence that the beneficiary’s services ices in the United States; however, the are to be used for a temporary period work in the United States need not be and evidence that the beneficiary will the same work which the alien per- be transferred to an assignment abroad formed abroad. upon the completion of the temporary (v) If the petition indicates that the services in the United States. beneficiary is coming to the United (viii) Such other evidence as the di- States as a manager or executive to rector, in his or her discretion, may open or to be employed in a new office deem necessary.

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(4) Blanket petitions—(i) A petitioner consular officer for L classification which meets the following require- under the approved blanket petition. ments may file a blanket petition seek- (iv) Evidence. A blanket petition filed ing continuing approval of itself and on Form I–129 shall be accompanied by: some or all of its parent, branches, sub- (A) Evidence that the petitioner sidiaries, and affiliates as qualifying meets the requirements of paragraph organizations if: (l)(4)(i) of this section. (A) The petitioner and each of those (B) Evidence that all entities for entities are engaged in commercial which approval is sought are qualifying trade or services; organizations as defined in subpara- (B) The petitioner has an office in the graph (l)(1)(ii)(G) of this section. United States that has been doing busi- (C) Such other evidence as the direc- ness for one year or more; tor, in his or her discretion, deems nec- (C) The petitioner has three or more essary in a particular case. domestic and foreign branches, subsidi- (5) Certification and admission proce- aries, or affiliates; and dures for beneficiaries under blanket petition. (D) The petitioner and the other (i) Jurisdiction. United States con- qualifying organizations have obtained sular officers shall have authority to approval of petitions for at least ten determine eligibility of individual ‘‘L’’ managers, executives, or special- beneficiaries outside the United States ized knowledge professionals during seeking L classification under blanket the previous 12 months; or have U.S. petitions, except for visa-exempt non- subsidiaries or affiliates with combined immigrants. An application for a visa- annual sales of at least $25 million; or exempt nonimmigrant seeking L clas- have a United States work force of at sification under a blanket petition or least 1,000 employees. by an alien in the United States apply- (ii) Managers, executives, and spe- ing for change of status to L classifica- cialized knowledge professionals em- tion under a blanket petition shall be ployed by firms, corporations, or other filed with the Service office at which entities which have been found to be the blanket petition was filed. qualifying organizations pursuant to (ii) Procedures. (A) When one qualify- an approved blanket petition may be ing organization listed in an approved classified as intracompany transferees blanket petition wishes to transfer an and admitted to the United States as alien outside the United States to a provided in paragraphs (l) (5) and (11) of qualifying organization in the United this section. States and the alien requires a visa to (iii) When applying for a blanket pe- enter the United States, that organiza- tition, the petitioner shall include in tion shall complete Form I–129S, Cer- the blanket petition all of its branches, tificate of Eligibility for Intracompany subsidiaries, and affiliates which plan Transferee under a Blanket Petition, in to seek to transfer aliens to the United an original and three copies. The quali- States under the blanket petition. An fying organization shall retain one individual petition may be filed by the copy for its records and send the origi- petitioner or organizations in lieu of nal and two copies to the alien. A copy using the blanket petition procedure. of the approved Form I–797 must be at- However, the petitioner and other tached to the original and each copy of qualifying organizations may not seek Form I–129S. L classification for the same alien (B) After receipt of Form I–797 and under both procedures, unless a con- Form I–129S, a qualified employee who sular officer first denies eligibility. is being transferred to the United Whenever a petitioner which has blan- States may use these documents to ket L approval files an individual peti- apply for visa issuance with the con- tion to seek L classification for a man- sular officer within six months of the ager, executive, or specialized knowl- date on Form I–129S. edge professional, the petitioner shall (C) When the alien is a visa-exempt advise the Service that it has blanket nonimmigrant seeking L classification L approval and certify that the bene- under a blanket petition, or when the ficiary has not and will not apply to a alien is in the United States and is

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seeking a change of status from an- nal of I–129S to the Service office which other nonimmigrant classification to L approved the blanket petition, and pro- classification under a blanket petition, vide a copy to the alien. In such a case, the petitioner shall submit Form I– an individual petition may be filed for 129S, Certificate of Eligibility, and a the alien with the director having ju- copy of the approval notice, Form I– risdiction over the area of intended 797, to the Service Center with which employment; the petition shall state the blanket petition was filed. the reason the alien was denied L clas- (D) The consular or Service officer sification and specify the consular of- shall determine whether the position in fice which made the determination and which the alien will be employed in the the date of the determination. United States is with an organization (G) An alien admitted under an ap- named in the approved petition and proved blanket petition may be reas- whether the specific job is for a man- signed to any organization listed in the ager, executive, or specialized knowl- approved petition without referral to edge professional. The consular or the Service during his/her authorized Service officer shall determine further stay if the alien will be performing vir- whether the alien’s immediate prior tually the same job duties. If the alien year of continuous employment abroad will be performing different job duties, was with an organization named in the the petitioner shall complete a new petition and was in a position as man- Certificate of Eligibility and send it for ager, executive, or specialized knowl- approval to the director who approved edge professional. the blanket petition. (E) Consular officers may grant ‘‘L’’ (6) Copies of supporting documents. The classification only in clearly approv- petitioner may submit a legible photo- able applications. If the consular offi- copy of a document in support of the cer determines that the alien is eligible visa petition, in lieu of the original for L classification, the consular offi- document. However, the original docu- cer may issue a nonimmigrant visa, ment shall be submitted if requested by noting the visa classification ‘‘Blanket the Service. L–1’’ for the principal alien and ‘‘Blan- (7) Approval of petition—(i) General. ket L–2’’ for any accompanying or fol- The director shall notify the petitioner lowing to join spouse and children. The of the approval of an individual or a consular officer shall also endorse all blanket petition within 30 days after copies of the alien’s Form I–129S with the date a completed petition has been the blanket L–1 visa classification and filed. If additional information is re- return the original and one copy to the quired from the petitioner, the 30 day alien. When the alien is inspected for processing period shall begin again entry into the United States, both cop- upon receipt of the information. Only ies of the Form I–129S shall be stamped the Director of a Service Center may to show a validity period not to exceed approve individual and blanket L peti- three years and the second copy col- tions. The original Form I–797 received lected and sent to the appropriate Re- from the Service with respect to an ap- gional Service Center for control pur- proved individual or blanket petition poses. Service officers who determine may be duplicated by the petitioner for eligibility of aliens for L–1 classifica- the beneficiary’s use as described in tion under blanket petitions shall en- paragraph (l)(13) of this section. dorse both copies of Form I–129S with (A) Individual petition—(1) Form I–797 the blanket L–1 classification and the shall include the beneficiary’s name validity period not to exceed three and classification and the petition’s pe- years and retain the second copy for riod of validity. Service records. (2) An individual petition approved (F) If the consular officer determines under this paragraph shall be valid for that the alien is ineligible for L classi- the period of established need for the fication under a blanket petition, the beneficiary’s services, not to exceed consular officer’s decision shall be three years, except where the bene- final. The consular officer shall record ficiary is coming to the United States the reasons for the denial on Form I– to open or to be employed in a new of- 129S, retain one copy, return the origi- fice.

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(3) If the beneficiary is coming to the be considered in making a final deci- United States to open or be employed sion. in a new office, the petition may be ap- (ii) Individual petition. If an individ- proved for a period not to exceed one ual is denied, the petitioner shall be year, after which the petitioner shall notified within 30 days after the date a demonstrate as required by paragraph completed petition has been filed of the (l)(14)(ii) of this section that it is doing denial, the reasons for the denial, and business as defined in paragraph (l) the right to appeal the denial. (1)(ii)(H) of this section to extend the (iii) Blanket petition. If a blanket pe- validity of the petition. tition is denied in whole or in part, the (B) Blanket petition—(1) Form I–797 petitioner shall be notified within 30 shall identify the approved organiza- days after the date a completed petitions included in the petition and the tion has been filed of the denial, the petition’s period of validity. reasons for the denial, and the right to (2) A blanket petition approved under appeal the denial. If the petition is de- this paragraph shall be valid initially nied in part, the Service Center issuing for a period of three years and may be the denial shall forward to the peti- extended indefinitely thereafter if the tioner, along with the denial, a Form I– qualifying organizations have complied 797 listing those organizations which with these regulations. were found to quality. If the decision (3) A blanket petition may be ap- to deny is reversed on appeal, a new proved in whole or in part and shall Form I–797 shall be sent to the peti- cover only qualifying organizations. tioner to reflect the changes made as a (C) Amendments. The petitioner shall result of the appeal. file an amended petition, with fee, at (9) Revocation of approval of individual the Service Center where the original and blanket petitions—(i) General. The petition was filed to reflect changes in director may revoke a petition at any approved relationships, additional time, even after the expiration of the qualifying organizations under a blan- petition. ket petition, change in capacity of em- (ii) Automatic revocation. The ap- ployment (i.e., from a specialized proval of any individual or blanket pe- knowledge position to a managerial po- tition is automatically revoked if the sition), or any information which petitioner withdraws the petition or would affect the beneficiary’s eligi- the petitioner fails to request indefi- bility under section 101(a)(15)(L) of the nite validity of a blanket petition. Act. (iii) Revocation on notice. (A) The di- (ii) Spouse and dependents. The spouse rector shall send to the petitioner a no- and unmarried minor children of the tice of intent to revoke the petition in beneficiary are entitled to L non- relevant part if he/she finds that: immigrant classification, subject to (1) One or more entities are no longer the same period of admission and lim- qualifying organizations; its as the beneficiary, if the spouse and (2) The alien is no longer eligible unmarried minor children are accom- under section 101(a)(15)(L) of the Act; panying or following to join the bene- (3) A qualifying organization(s) vio- ficiary in the United States. Neither lated requirements of section the spouse nor any child may accept 101(a)(15)(L) and these regulations; employment unless he or she has been (4) The statement of facts contained granted employment authorization. in the petition was not true and cor- (8) Denial of petition—(i) Notice of in- rect; or tent to deny. When an adverse decision (5) Approval of the petition involved is proposed on the basis of evidence not gross error; or submitted by the petitioner, the direc- (6) None of the qualifying organiza- tor shall notify the petitioner of his or tions in a blanket petition have used her intent to deny the petition and the the blanket petition procedure for basis for the denial. The petitioner three consecutive years. may inspect and rebut the evidence and (B) The notice of intent to revoke will be granted a period of 30 days from shall contain a detailed statement of the date of the notice in which to do the grounds for the revocation and the so. All relevant rebuttal material will time period allowed for the petitioner’s

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rebuttal. Upon receipt of this notice, an individual petition in the alien’s be- the petitioner may submit evidence in half to support the alien’s status in the rebuttal within 30 days of the notice. United States. The admission period The director shall consider all relevant for any alien under section 101(a)(15)(L) evidence presented in deciding whether shall not exceed three years unless an to revoke the petition in whole or in extension of stay is granted pursuant part. If a blanket petition is revoked in to paragraph (l)(15) of this section. part, the remainder of the petition (12) L–1 limitation on period of stay—(i) shall remain approved, and a revised Limits. An alien who has spent five Form I–797 shall be sent to the peti- years in the United States in a special- tioner with the revocation notice. ized knowledge capacity or seven years (iv) Status of beneficiaries. If an indi- in the United States in a managerial or vidual petition is revoked, the bene- executive capacity under section ficiary shall be required to leave the 101(a)(15) (L) and/or (H) of the Act may United States, unless the beneficiary not be readmitted to the United States has obtained other work authorization under section 101(a)(15) (L) or (H) of the from the Service. If a blanket petition Act unless the alien has resided and is revoked and the petitioner and bene- been physically present outside the ficiaries already in the United States United States, except for brief visits are otherwise eligible for L classifica- for business or pleasure, for the imme- tion, the director shall extend the blan- diate prior year. Such visits do not in- ket petition for a period necessary to terrupt the one year abroad, but do not support the stay of those blanket L count towards fulfillment of that re- beneficiaries. The approval notice, quirement. In view of this restriction, Form I–171C, shall include only the a new individual petition may not be names of qualifying organizations and approved for an alien who has spent the covered beneficiaries. No new bene- maximum time period in the United ficiaries may be classified or admitted States under section 101(a)(15) (L) and/ under this limited extension. or (H) of the Act, unless the alien has (10) Appeal of denial or revocation of resided and been physically present individual or blanket petition—(i) A peti- outside the United States, except for tion denied in whole or in part may be brief visits for business or pleasure, for appealed under 8 CFR part 103. Since the immediate prior year. The peti- the determination on the Certificate of tioner shall provide information about Eligibility, Form I–129S, is part of the the alien’s employment, place of resi- petition process, a denial or revocation dence, and the dates and purpose of any of approval of an I–129S is appealable in trips to the United States for the pre- the same manner as the petition. vious year. A consular or Service offi- (ii) A petition that has been revoked cer may not grant L classification on notice in whole or in part may be under a blanket petition to an alien appealed under part 103 of this chapter. who has spent five years in the United Automatic revocations may not be ap- States as a professional with special- pealed. ized knowledge or seven years in the (11) Admission. A beneficiary may United States as a manager or execu- apply for admission to the United tive, unless the alien has met the re- States only while the individual or quirements contained in this para- blanket petition is valid. The bene- graph. ficiary of an individual petition shall (ii) Exceptions. The limitations of not be admitted for a date past the va- paragraph (l)(12)(i) of this section shall lidity period of the petition. The bene- not apply to aliens who do not reside ficiary of a blanket petition may be ad- continually in the United States and mitted for three years even though the whose employment in the United initial validity period of the blanket States is seasonal, intermittent, or petition may expire before the end of consists of an aggregate of six months the three-year period. If the blanket or less per year. In addition, the limi- petition will expire while the alien is tations will not apply to aliens who rein the United States, the burden is on side abroad and regularly commute to the petitioner to file for indefinite va- the United States to engage in part- lidity of the blanket petition or to file time employment. The petitioner and

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the alien must provide clear and con- (14) Extension of visa petition validity— vincing proof that the alien qualifies (i) Individual petition. The petitioner for an exception. Clear and convincing shall file a petition extension on Form proof shall consist of evidence such as I–129 to extend an individual petition arrival and departure records, copies of under section 101(a)(15)(L) of the Act. tax returns, and records of employment Except in those petitions involving new abroad. offices, supporting documentation is (13) Beneficiary’s use of Form I–797 and not required, unless requested by the Form I–129S—(i) Beneficiary of an indi- director. A petition extension may be vidual petition. The beneficiary of an in- filed only if the validity of the original dividual petition who does not require petition has not expired. a nonimmigrant visa may present a (ii) New offices. A visa petition under copy of Form I–797 at a port of entry to section 101(a)(15)(L) which involved the facilitate entry into the United States. opening of a new office may be ex- The copy of Form I–797 shall be re- tended by filing a new Form I–129, ac- tained by the beneficiary and presented companied by the following: during the validity of the petition (pro- (A) Evidence that the United States vided that the beneficiary is entering and foreign entities are still qualifying or reentering the United States) for organizations as defined in paragraph entry and reentry to resume the same (l)(1)(ii)(G) of this section; employment with the same petitioner (B) Evidence that the United States (within the validity period of the peti- entity has been doing business as de- tion) and to apply for an extension of fined in paragraph (l)(1)(ii)(H) of this stay. A beneficiary who is required to section for the previous year; present a visa for admission and whose (C) A statement of the duties per- visa will have expired before the date formed by the beneficiary for the pre- of his or her intended return may use vious year and the duties the bene- an original Form I–797 to apply for a ficiary will perform under the extended new or revalidated visa during the va- petition; lidity period of the petition and to (D) A statement describing the staff- apply for an extension of stay. ing of the new operation, including the (ii) Beneficiary of a blanket petition. number of employees and types of posi- Each alien seeking L classification and tions held accompanied by evidence of admission under a blanket petition wages paid to employees when the ben- shall present a copy of Form I–797 and eficiary will be employed in a manage- a Form I–129S from the petitioner rial or executive capacity; and which identifies the position and orga- (E) Evidence of the financial status nization from which the employee is of the United States operation. transferring, the new organization and (iii) Blanket petitions—(A) Extension position to which the employee is des- procedure. A blanket petition may only tined, a description of the employee’s be extended indefinitely by filing a new actual duties for both the new and Form I–129 with a copy of the previous former positions, and the positions, approval notice and a report of admis- dates, and locations of previous L stays sions during the preceding three years. in the United States. A current copy of The report of admissions shall include Form I–797 and Form I–129S should be a list of the aliens admitted under the retained by the beneficiary and used blanket petition during the preceding for leaving and reentering the United three years, including positions held States to resume employment with a during that period, the employing en- qualifying organization during his/her tity, and the dates of initial admission authorized period of stay, for applying and final departure of each alien. The for a new or revalidated visa, and for petitioner shall state whether it still applying for readmission at a port of meets the criteria for filing a blanket entry. The alien may be readmitted petition and shall document any even though reassigned to a different changes in approved relationships and organization named on the Form I–797 additional qualifying organizations. than the one shown on Form I–129S if (B) Other conditions. If the petitioner the job duties are virtually the same. in an approved blanket petition fails to

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request indefinite validity or if indefi- an amended, new, or extended petition nite validity is denied, the petitioner at the time that the change occurred. and its other qualifying organizations (16) Effect of approval of a permanent shall seek L classification by filing in- labor certification or filing of a preference dividual petitions until another three petition on L–1 classification. The ap- years have expired; after which the pe- proval of a permanent labor certifi- titioner may seek approval of a new cation or the filing of a preference peti- blanket petition. tion for an alien shall not be a basis for (15) Extension of stay. (i) In individual denying an L petition, a request to ex- petitions, the petitioner must apply for tend an L petition, or the alien’s appli- the petition extension and the alien’s cation for admission, change of status, extension of stay concurrently on or extension of stay. The alien may le- Form I–129. When the alien is a ben- gitimately come to the United States eficiary under a blanket petition, a as a nonimmigrant under the L classi- new certificate of eligibility, accom- fication and depart voluntarily at the panied by a copy of the previous ap- end of his or her authorized stay, and proved certificate of eligibility, shall at the same time, lawfully seek to be- be filed by the petitioner to request an come a permanent resident of the Unit- extension of the alien’s stay. The peti- ed States. tioner must also request a petition ex- (17) Filing of individual petitions and tension. The dates of extension shall be certifications under blanket petitions for the same for the petition and the bene- citizens of Canada under the North Amer- ficiary’s extension of stay. The bene- ican Free Trade Agreement (NAFTA). (i) ficiary must be physically present in Individual petitions. Except as provided the United States at the time the ex- in paragraph (1)(2)(ii) of this section tension of stay is filed. Even though (filing of blanket petitions), a United the requests to extend the visa petition States or foreign employer seeking to and the alien’s stay are combined on classify a citizen of Canada as an the petition, the director shall make a intracompany transferee may file an separate determination on each. If the individual petition in duplicate on alien is required to leave the United Form I–129 in conjunction with an ap- States for business or personal reasons plication for admission of the citizen of while the extension requests are pend- Canada. Such filing may be made with ing, the petitioner may request the dian immigration officer at a Class A rector to cable notification of approval port of entry located on the United of the petition extension to the con- States-Canada land border or at a Unit- sular office abroad where the alien will ed States pre-clearance/pre-flight sta- apply for a visa. tion in Canada. The petitioning em- (ii) An extension of stay may be au- ployer need not appear, but Form I–129 thorized in increments of up to two must bear the authorized signature of years for beneficiaries of individual the petitioner. and blanket petitions. The total period (ii) Certification of eligibility for of stay may not exceed five years for intracompany transferree under the blan- aliens employed in a specialized knowl- ket petition. An immigration officer at edge capacity. The total period of stay a location identified in paragraph for an alien employed in a managerial (1)(17)(i) of this section may determine or executive capacity may not exceed eligibility of individual citizens of Can- seven years. No further extensions may ada seeking L classification under ap- be granted. When an alien was initially proved blanket petitions. At these lo- admitted to the United States in a spe- cations, such citizens of Canada shall cialized knowledge capacity and is present the original and two copies of later promoted to a managerial or ex- Form I–129S, Intracompany Transferee ecutive position, he or she must have Certificate of Eligibility, prepared by been employed in the managerial or ex- the approved organization, as well as ecutive position for at least six months three copies of Form I–797, Notice of to be eligible for the total period of Approval of Nonimmigrant Visa Peti- stay of seven years. The change to tion. managerial or executive capacity must (iii) Nothing in this section shall pre- have been approved by the Service in clude or discourage the advance filing

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of petitions and certificates of eligi- (18) Denial of intracompany transferee bility in accordance with paragraph status to citizens of Canada or Mexico in (l)(2) of this section. the case of certain labor disputes. (i) If (iv) Deficient or deniable petitions or the Secretary of Labor certifies to or certificates of eligibility. If a petition or otherwise informs the Commissioner certificate of eligibility submitted con- that a strike or other labor dispute in- currently with an application for ad- volving a work stoppage of workers is mission is lacking necessary support- in progress where the beneficiary is to ing documentation or is otherwise defi- be employed, and the temporary entry cient, the inspecting immigration offi- of the beneficiary may affect adversely cer shall return it to the applicant for the settlement of such labor dispute or admission in order to obtain the nec- the employment of any person who is essary documentation from the peti- involved in such dispute, a petition to tioner or for the deficiency to be over- classify a citizen of Mexico or Canada come. The fee to file the petition will as an L–1 intracompany transferee may be remitted at such time as the docu- be denied. If a petition has already mentary or other deficiency is over- been approved, but the alien has not come. If the petition or certificate of yet entered the United States, or has eligibility is clearly deniable, the im- entered the United States but not yet migration officer will accept the peti- commenced employment, the approval tion (with fee) and the petitioner shall of the petition may be suspended, and be notified of the denial, the reasons an application for admission on the for denial, and the right of appeal. If a basis of the petition may be denied. formal denial order cannot be issued by (ii) If there is a strike or other labor the port of entry, the petition with a dispute involving a work stoppage of recommendation for denial shall be for- workers in progress, but such strike or warded to the appropriate Service Cen- other labor dispute is not certified ter for final action. For the purposes of under paragraph (l)(18)(i) of this sec- this provision, the appropriate Service tion, or the Service has not otherwise Center will be the one within the same been informed by the Secretary that Service region as the location where such a strike or labor dispute is in the application for admission is made. progress, the Commissioner shall not (v) Spouse and dependent minor chil- deny a petition or suspend an approved dren accompanying or following to join. petition. (A) The Canadian citizen spouse and (iii) If the alien has already com- Canadian citizen unmarried minor chil- mended employment in the United dren of a Canadian citizen admitted States under an approved petition and under this paragraph shall be entitled is participating in a strike or other to the same nonimmigrant classifica- labor dispute involving a work stop- tion and same length of stay subject to page of workers, whether or not such the same limits as the principal alien. strike or other labor dispute has been They shall not be required to present certified by the Department of Labor, visas, and they shall be admitted under the alien shall not be deemed to be fail- the classification symbol L–2. ing to maintain his or her status solely (B) A non-Canadian citizen spouse or on account of past, present, or future non-Canadian citizen unmarried minor participation in a strike or other labor child shall be entitled to the same non- dispute involving a work stoppage of immigrant classification and the same workers, but is subject to the following length of stay subject to the same lim- terms and conditions. its as the principal, but shall be re- (A) The alien shall remain subject to quired to present a visa upon applica- all applicable provisions of the Immi- tion for admission as an L–2 unless oth- gration and Nationality Act, and regu- erwise exempt under § 212.1 of this lations promulgated in the same man- chapter. ner as all other L nonimmigrants; (C) The spouse and dependent minor (B) The status and authorized period children shall not accept employment of stay of such an alien is not modified in the United States unless otherwise or extended in any way by virtue of his authorized under the Act. or her participation in a strike or other

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labor dispute involving work stoppage I–20 ID copy, the student must request of workers; and a new Form I–20 ID copy on Form I–102 (C) Although participation by an L from the Service office having jurisdic- nonimmigrant alien in a strike or tion over the school the student was other labor dispute involving a work last authorized to attend. stoppage of workers will not constitute (3) Spouse and minor children following a ground for deportation, any alien to join student. The M–2 spouse and who violates his or her status or who minor children following to join an M– remains in the United States after his 1 student are not eligible for admission or her authorized period of stay has ex- to the United States unless they pired will be subject to deportation. present, as evidence that the student is (m) Students in established vocational or will, within sixty days, be enrolled or other recognized nonacademic institu- in a full course of study or is engaged tions, other than in language training in approved practical training, either— programs—(1) Admission of student—(i) (i) A properly endorsed page 4 of Eligibility for admission. Except as pro- Form I–20M–N if there has been no sub- vided in paragraph (m)(4) of this sec- stantive change in the information on tion, an alien seeking admission to the the student’s most recent Form I–20M United States under section since the form was initially issued; or 101(a)(15)(M)(i) of the Act (as an M–1 (ii) A new Form I–20M–N if there has student) and the student’s accompany- been any substantive change in the in- ing M–2 spouse and minor children, if formation on the student’s most recent applicable, are not eligible for admis- Form I–20M since the form was ini- sion unless— tially issued. (A) The student presents a Certifi- (4) Temporary absence—(i) General. An cate of Eligibility for Nonimmigrant M–1 student returning to the United (M–1) Student Status, Form I–20M–N, States from a temporary absence to at- properly and completely filled out by tend the school which the student was the student and by the designated offi- previously authorized to attend must cial of the school to which the student present either— is destined and the documentary evi- (A) A properly endorsed page 4 of dence of the student’s financial ability Form I–20M–N if there has been no sub- required by that form; and stantive change in the information on (B) It is established that the student the student’s most recent Form I–20M is destined to and intends to attend the since the form was initially issued; or school specified in the student’s visa (B) A new Form I–20M–N if there has unless the student is exempt from the been any substantive change in the in- requirement for presentation of a visa. formation on the student’s most recent (ii) Disposition of Form I–20M–N. When Form I–20M since the form was ini- a student is admitted to the United tially issued. States, the inspecting officer shall for- (ii) Student who transferred between ward Form I–20M–N to the Service’s schools. If an M–1 student has been au- processing center. The processing cen- thorized to transfer between schools ter shall forward Form I–20N to the and is returning to the United States school which issued the form to notify from a temporary absence in order to the school of the student’s admission. attend the school to which transfer was (2) Form I–20 ID copy. The first time authorized as indicated on the stu- an M–1 student comes into contact dent’s Form I–20 ID copy, the name of with the Service for any reason, the the school to which the student is des- student must present to the Service a tined does not need to be specified in Form I–20M–N properly and completely the student’s visa. filled out by the student and by the (5) Period of stay. An alien admitted designated official of the school the to the United States as an M–1 student student is attending or intends to at- is to be admitted for the period of time tend. The student will be issued a Form necessary to complete the course of I–20 ID copy with his or her admission study indicated on Form I–20M plus number. The student must have the thirty days within which to depart Form I–20 ID copy with him or her at from the United States or for one year, all times. If the student loses the Form whichever is less. An alien granted a

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change of nonimmigrant classification section 101(a)(15)(M)(i) of the Act to that of an M–1 student is to be given means— an extension of stay for the period of (i) Study at a community college or time necessary to complete the course junior college, certified by a school of- of study indicated on Form I–20M plus ficial to consist of at least twelve se- thirty days within which to depart mester or quarter hours of instruction from the United States or for one year, per academic term in those institu- whichever is less. tions using standard semester, tri- (6) Conversion to M–1 status of students mester, or quarter-hour systems, where in established vocational or other recog- all students enrolled for a minimum of nized nonacademic institutions, other twelve semester or quarter hours are than in language training programs, who charged full-time tuition or considered were F–1 students prior to June 1, 1982. A full-time for other administrative pur- student in an established vocational or poses, or its equivalent (as determined other recognized nonacademic institu- by the district director) except when tion, other than in a language training the student needs a lesser course load program, who is in status as an F–1 to complete the course of study during student under section 101(a)(15)(F)(i) of the current term; the Act in effect prior to June 1, 1982 (ii) Study at a postsecondary voca- and the student’s F–2 spouse and chil- tional or business school, other than in dren, if applicable, are— a language training program except as (i) Automatically converted to M–1 provided in § 214.3(a)(2)(iv), which con- and M–2 status respectively; and fers upon its graduates recognized asso- (ii) Limited to the authorized period ciate or other degrees or has estab- of stay shown on their Forms I–94 plus lished that its credits have been and thirty days within which to depart are accepted unconditionally by at from the United States or to an au- least three institutions of higher learn- thorized period of stay which expires ing which are either: (1) A school (or one year from August 1, 1983, whichever school system) owned and operated as a is less. public educational institution by the (7) Period of stay of student already in United States or a State or political M–1 status. A student in an established vocational or other recognized nonaca- subdivision thereof; or (2) a school ac- demic institution, other than in a lan- credited by a nationally recognized ac- guage training program, who is already crediting body; and which has been cer- in M–1 status and the student’s M–2 tified by a designated school official to spouse and children, if applicable, are consist of at least twelve hours of in- limited to the authorized period of stay struction a week, or its equivalent as shown on their Forms I–94 plus thirty determined by the district director; days within which to depart from the (iii) Study in a vocational or other United States or to an authorized pe- nonacademic curriculum, other than in riod of stay which expires one year a language training program except as from August 1, 1983, whichever is less. provided in § 214.3(a)(2)(iv), certified by (8) Issuance of new I–94. A non- a designated school official to consist immigrant whose status is affected by of at least eighteen clock hours of at- paragraph (m)(6) or (m)(7) of this sec- tendance a week if the dominant part tion need not present Form I–94 to the of the course of study consists of class- Service. Either paragraph constitutes room instruction, or at least twenty- official notification to a student whose two clock hours a week if the dominant status is affected by it of that status. part of the course of study consists of The Service will issue a new Form I–94 shop or laboratory work; or to an alien whose status is affected by (iv) Study in a vocational or other either paragraph when that alien nonacademic high school curriculum, comes into contact with the Service. certified by a designated school official (9) Full course of study. Successful to consist of class attendance for not completion of the course of study must less than the minimum number of lead to the attainment of a specific hours a week prescribed by the school educational or vocational objective. A for normal progress towards gradua- ‘‘full course of study’’ as required by tion.

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(10) Extension of stay—(i) Eligibility. (A) Is a bona fide nonimmigrant; An M–1 student may be granted an ex- (B) Has been pursuing a full course of tension of stay if it is established that study at the school the student was the student— last authorized to attend; (A) Is a bona fide nonimmigrant cur- (C) Intends to pursue a full course of rently maintaining student status; and study at the school to which the stu- (B) Is able to, and in good faith in- dent intends to transfer; and tends to, continue to maintain that (D) Is financially able to attend the status for the period for which the ex- school to which the student intends to tension is granted. transfer. (ii) Application. An M–1 student must (ii) Procedure. An M–1 student must apply for an extension of stay on Form apply for permission to transfer be- I–538. A student’s M–2 spouse and chil- tween schools on Form I–538 accom- dren desiring an extension of stay must panied by the student’s Form I–20 ID be included in the application. A stu- copy and the Forms I–94 of the student’s M–2 spouse or children are not dent’s spouse and children, if applica- eligible for an extension of stay unless ble. The Form I–538 must also be ac- the student is granted an extension of companied by Form I–20M–N properly stay. The student must submit the ap- and completely filled out by the stu- plication to the Service office having dent and by the designated official of jurisdiction over the school the student the school which the student wishes to was last authorized to attend at least attend. The student must submit the fifteen days but not more than sixty application for school transfer to the days before the expiration of the stu- Service office having jurisdiction over dent’s currently authorized stay. The the school the student was last author- application must also be accompanied ized to attend. Sixty days after having by the student’s Form I–20 ID copy and filed an application for school transfer, the Forms I–94 of the student’s spouse an M–1 student may effect the transfer and children, if applicable. subject to approval or denial of the ap- (iii) Period of stay. If an application plication. An M–1 student who trans- for extension of stay is granted, the fers without complying with this regu- student and the student’s spouse and lation or whose application is denied children, if applicable, are to be given after transfer pursuant to this regula- an extension of stay for the period of tion is considered to be out of status. If time necessary to complete the course the application is approved, the ap- of study plus thirty days within which proval of the transfer will be retro- to depart from the United States or for active to the date of filing the applica- one year, whichever is less. An M–1 stu- tion, and the student will be granted dent who has been compelled by illness an extension of stay for the period of to interrupt or reduce a course of study time necessary to complete the course may be granted an extension of stay of study indicated on Form I–20M plus without being required to change non- thirty days within which to depart immigrant classification provided that from the United States or for one year, it is established that the student will whichever is less. The adjudicating of- pursue a full course of study upon re- ficer must endorse the name of the covery from the illness. school to which transfer is authorized (11) School transfer—(i) Eligibility. An on the student’s Form I–20 ID copy. M–1 student may not transfer to an- The officer must also endorse Form I– other school after six months from the 20N to indicate that a school transfer date the student is first admitted as, or has been authorized and forward it changes nonimmigrant classification with Form I–20M to the Service’s proc- to that of, an M–1 student unless the essing center for file updating. The student is unable to remain at the processing center shall forward Form school to which the student was ini- I–20N to the school to which the trans- tially admitted due to circumstances fer has been authorized to notify the beyond the student’s control. An M–1 school of the action taken. student may be otherwise eligible to (iii) Student who has not been pursuing transfer to another school if the stu- a full course of study. If an M–1 student dent— who has not been pursuing a full course

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of study at the school the student was employment authorization document. last authorized to attend desires to at- The M–1 student may not begin em- tend a different school, the student ployment until he or she has been is- must apply for reinstatement to stu- sued an employment authorization doc- dent status under paragraph (m)(16) of ument by the Service. One month of this section. employment authorization will be (12) Change in educational objective. granted for each four months of full- An M–1 student may not change edu- time study that the M–1 student has cational objective. completed. However, an M–1 student (13) Employment. Except as provided may not engage in more than six in paragraph (m)(14) of this section, M– months of practical training in the ag- 1 students may not accept employ- gregate. The student will not be grant- ment. A student already in M–1 status ed employment authorization if he or on August 1, 1983 or a student con- she cannot complete the requested verted to M–1 status under paragraph practical training within six months. (m)(6) of this section who was author- (iv) Temporary absence of M–1 student ized off-campus employment under the granted practical training. An M–1 stu- regulations previously in effect, how- dent who has been granted permission ever, may continue to work until the to accept employment for practical date of expiration of the previously au- training and who temporarily departs thorized period of employment. The M– from the United States, may be re- 2 spouse and children of an M–1 student admitted for the remainder of the au- may not accept employment. thorized period indicated on the stu- (14) Practical training—(i) When prac- dent’s Form I–20 ID copy. The student tical training may be authorized. Tem- must be returning to the United States porary employment for practical train- to perform the authorized practical ing may be authorized only after com- training. A student may not be re- pletion of the student’s course of admitted to begin practical training study. which was not authorized prior to the (ii) Application. An M–1 student must student’s departure from the United apply for permission to accept employ- States. ment for practical training on Form I– (v) Effect of strike or other labor dis- 765, with the fee required by 8 CFR pute. Authorization for all employment 103.7(b)(1), accompanied by his or her I– for practical training is automatically 20 ID endorsed for practical training by suspended upon certification by the the DSO. The application must be sub- Secretary of Labor or the Secretary’s mitted prior to the expiration of the designee to the Commissioner of Immi- student’s authorized period of stay and gration and Naturalization or the Com- not more than sixty days before nor missioner’s designee that a strike or more than thirty days after completion other labor dispute involving a work of the course of study. The designated stoppage of workers is in progress in school official must certify on Form I– the occupation at the place of employ- 538 that— ment. As used in this paragraph, ‘‘place (A) The proposed employment is rec- of employment’’ means wherever the ommended for the purpose of practical employer or joint employer does busi- training; ness. (B) The proposed employment is re- (15) Decision on application for exten- lated to the student’s course of study; sion, permission to transfer to another and school, or permission to accept employ- (C) Upon the designated school offi- ment for practical training. The Service cial’s information and belief, employ- shall notify the applicant of the deci- ment comparable to the proposed em- sion and, if the application is denied, of ployment is not available to the stu- the reason(s) for the denial. The appli- dent in the country of the student’s cant may not appeal the decision. foreign residence. (16) Reinstatement to student status—(i) (iii) Duration of practical training. General. A district director may con- When the student is authorized to en- sider reinstating to M–1 student status gage in employment for practical an alien who was admitted to the Unit- training, he or she will be issued an ed States as, or whose status was

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changed to that of, an M–1 student and school which is not part of a school who has overstayed the authorized pe- system, a suffix consisting of a decimal riod of stay or who has otherwise vio- point followed by three zeros must be lated the conditions of his or her status added after the school file number on only if— Form I–20M–N. The Service will assign (A) The student establishes to the school code suffixes to those schools it satisfaction of the district director approves beginning August 1, 1983. No that the violation of status resulted Form I–20M–N will be accepted after from circumstances beyond the stu- August 1, 1983 without the appropriate dent’s control or that failure to receive three-digit suffix. reinstatement to lawful M–1 status (n) Certain parents and children of sec- would result in extreme hardship to tion 101(a)(27)(I) special immigrants—(1) the student; Parent of special immigrant. Upon appli- (B) The student makes a written re- cation, a parent of a child accorded quest for reinstatement accompanied special immigrant status under section by a properly completed Form I–20M–N 101(a)(27)(I)(i) of the Act may be grant- from the school the student is attended status under section 101(a)(15)(N)(i) ing or intends to attend and the stu- of the Act as long as the permanent dent’s Form I–20 ID copy; resident child through whom eligibility (C) The student is currently pursu- is derived remains a child as defined in ing, or intending to pursue, a full section 101(b)(1) of the Act. course of study at the school which is- (2) Child of section 101(a)(27)(I) special sued the Form I–20M–N; immigrants and section 101(a)(15)(N)(i) (D) The student has not been em- nonimmigrants. Children of parents ployed without authorization; and granted nonimmigrant status under (E) The student is not deportable on section 101(a)(15)(N)(i) of the Act, or of any ground other than section 241(a)(1) parents who have been granted special (B), (C), or (D) of the Act. immigrant status under section (ii) Decision. If the district director 101(a)(27)(I) (ii), (iii) or (iv) of the Act reinstates the student, the district di- may be granted status under section rector shall endorse Form I–20N and 101(a)(15)(N)(ii) of the Act for such time the student’s Form I–20 ID copy to in- as each remains a child as defined in dicate that the student has been rein- section 101(b)(1) of the Act. stated, return the Form I–20 ID copy to the student, and forward Form I–20N (3) Admission and extension of stay. A with Form I–20M to the Service’s proc- nonimmigrant granted (N) status shall essing center for file updating. The be admitted for not to exceed three processing center shall forward Form years with extensions in increments up I–20N to the school which the student to but not to exceed three years. Sta- is attending or intends to attend to no- tus as an (N) nonimmigrant shall ter- tify the school of the student’s rein- minate on the date the child described statement. If the district director does in paragraph (n)(1) or (n)(2) of this sec- not reinstate the student, the student tion no longer qualifies as a child as may not appeal that decision. defined in section 101(b)(1) of the Act. (17) School code suffix on Form I–20M– (4) Employment. A nonimmigrant ad- N. Each school system, other than a mitted in or granted (N) status is au- secondary school system approved thorized employment incident to (N) prior to August 1, 1983 for attendance status without restrictions as to loca- by M–1 students must assign perma- tion or type of employment. nent consecutive numbers to all (o) Aliens of extraordinary ability or schools within its system. The number achievement—(1) Classifications—(i) Gen- of the school within the system which eral. Under section 101(a)(15)(O) of the an M–1 student is attending or intends Act, a qualified alien may be author- to attend must be added as a three- ized to come to the United States to digit suffix following a decimal point perform services relating to an event after the school file number on Form I– or events if petitioned for by an em- 20M–N (e.g. .001). If an M–1 student is ployer. Under this nonimmigrant cat- attending or intends to attend a sec- egory, the alien may be classified ondary school in a school system or a under section 101(a)(15)(O)(i) of the Act

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as an alien who has extraordinary abil- (2) In the case of a motion picture or ity in the sciences, arts, education, television production, have skills and business, or athletics, or who has a experience with the O–1 alien which are demonstrated record of extraordinary not of a general nature and which are achievement in the motion picture or critical, either based on a pre-existing television industry. Under section and longstanding working relationship 101(a)(15)(O)(ii) of the Act, an alien or, if in connection with a specific pro- having a residence in a foreign country duction only, because significant pro- which he or she has no intention of duction (including pre- and post-pro- abandoning may be classified as an ac- duction) will take place both inside and companying alien who is coming to as- outside the United States and the consist in the artistic or athletic perform- tinuing participation of the alien is es- ance of an alien admitted under section sential to the successful completion of 101(a)(15)(O)(i) of the Act. The spouse or the production. child of an alien described in section (2) Filing of petitions—(i) General. A 101(a)(15)(O)(i) or (ii) of the Act who is petitioner seeking to classify an alien accompanying or following to join the as an O–1 or O–2 shall file a petition on alien is entitled to classification pursu- Form I–129, Petition for Nonimmigrant ant to section 101(a)(15)(O)(iii) of the Worker, only with the Service Center Act. These classifications are called which has jurisdiction in the area the O–1, O–2, and O–3 categories, re- where the alien will work. The petition spectively. The petitioner must file a may not be filed more than six months petition with the Service for a deter- before the actual need for the alien’s mination of the alien’s eligibility for services. An O–1 or O–2 petition will be O–1 or O–2 classification before the adjudicated at the appropriate Service alien may apply for a visa or seek ad- Center, even in emergent situations. mission to the United States. This Only one beneficiary may be included paragraph sets forth the standards and on an O–1 petition. The O–2 aliens must procedures applicable to these classi- be filed for on a separate petition from fications. the O–1 alien. An O–1 or O–2 petition (ii) Description of classifications. (A) may be filed by a U.S. employer, a for- An O–1 classification applies to: eign employer, or an established U.S. (1) An individual alien who has ex- agent. An O alien may not petition for traordinary ability in the sciences, himself or herself. arts, education, business, or athletics (ii) Evidence required to accompany a which has been demonstrated by sus- petition. Petitions for O aliens shall be tained national or international ac- accompanied by the following: claim and who is coming temporarily (A) The evidence specified in the par- to the United States to continue work ticular section for the classification; in the area of extraordinary ability; or (B) Copies of any written contracts (2) An alien who has a demonstrated between the petitioner and the alien record of extraordinary achievement in beneficiary or, if there is no written motion picture and/or television pro- contract, a summary of the terms of ductions and who is coming tempo- the oral agreement under which the rarily to the United States to continue alien will be employed; work in the area of extraordinary (C) An explanation of the nature of achievement. the events or activities, the beginning (B) An O–2 classification applies to and ending dates for the events or ac- an accompanying alien who is coming tivities, and a copy of any itinerary for temporarily to the United States solely the events or activities; and to assist in the artistic or athletic per- (D) A written advisory opinion(s) formance by an O–1. The O–2 alien from the appropriate consulting entity must: or entities. (1) Be an integral part of the actual (iii) Form of documentation. The evi- performances or events and posses crit- dence submitted with an O petition ical skills and experience with the O–1 shall conform to the following: alien that are not of a general nature (A) Affidavits, contracts, awards, and and which are not possessed by others; similar documentation must reflect or the nature of the alien’s achievement

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and be executed by an officer or respon- relating to the new employer and a re- sible person employed by the institu- quest for an extension of stay. tion, firm, establishment, or organiza- (D) Amended petition. The petitioner tion where the work was performed. shall file an amended petition on Form (B) Affidavits written by present or I–129, with fee, with the Service Center former employers or recognized experts where the original petition was filed to certifying to the recognition and ex- reflect any material changes in the traordinary ability, or in the case of a terms and conditions of employment or motion picture or television produc- the beneficiary’s eligibility as specified tion, the extraordinary achievement of in the original approved petition. In the alien, shall specifically describe the case of a petition filed for an artist the alien’s recognition and ability or or entertainer, a petitioner may add achievement in factual terms and set additional performances or engage- forth the expertise of the affiant and ments during the validity period of the the manner in which the affiant ac- petition without filing an amended pe- quired such information. tition, provided the additional per- (C) A legible photocopy of a docu- formances or engagements require an ment in support of the petition may be alien of O–1 caliber. submitted in lieu of the original. How- (E) Agents as petitioners. An estab- ever, the original document shall be lished United States agent may file a submitted if requested by the Director. petition in cases involving an alien (iv) Other filing situations—(A) Services who is traditionally self-employed or in more than one location. A petition uses agents to arrange short-term em- which requires the alien to work in ployment in his or her behalf with nu- more than one location must include merous employers, and in cases where an itinerary with the dates and loca- a foreign employer authorizes the tions of work and must be filed with agent to act in its behalf. A petition the Service Center which has jurisdic- filed by an agent is subject to the fol- tion in the area where the petitioner is lowing conditions: located. The address which the peti- (1) A person or company in business tioner specifies as its location on the as an agent may file the petition in- petition shall be where the petitioner volving multiple employers as the rep- is located for purposes of this para- resentative of both the employers and graph. If the petitioner is a foreign em- the beneficiary, if the supporting docu- ployer with no United States location, mentation includes a complete itin- the petition shall be filed with the erary of the event or events. The itin- Service Center having jurisdiction over erary must specify the dates of each the area where the work will begin. service or engagement, the names and (B) Services for more than one em- addresses of the actual employers, and ployer. If the beneficiary will work con- the names and addresses of the estab- currently for more than one employer lishments, venues, or locations where within the same time period, each em- the services will be performed. A con- ployer must file a separate petition tract between the employers and the with the Service Center that has juris- beneficiary is required. The burden is diction over the area where the alien on the agent to explain the terms and will perform services, unless an estab- conditions of the employment and to lished agent files the petition. provide any required documentation. (C) Change of employer. If an O–1 or O– (2) An agent performing the function 2 alien in the United States seeks to of an employer must provide the con- change employers, the new employer tractual agreement between the agent must file a petition and a request to and the beneficiary which specifies the extend the alien’s stay with the Serv- wage offered and the other terms and ice Center having jurisdiction over the conditions of employment of the bene- new place of employment. An O–2 alien ficiary. may change employers only in conjunc- (F) Multiple beneficiaries. More than tion with a change of employers by the one O–2 accompanying alien may be in- principal O–1 alien. If the O–1 or O–2 pe- cluded on a petition if they are assist- tition was filed by an agent, an amend- ing the same O–1 alien for the same ed petition must be filed with evidence events or performances, during the

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same period of time, and in the same centage who have arisen to the very location. top of the field of endeavor. (3) Petition for alien of extraordinary Extraordinary achievement with re- ability or achievement (O–1)—(i) General. spect to motion picture and television Extraordinary ability in the sciences, productions, as commonly defined in arts, education, business, or athletics, the industry, means a very high level or extraordinary achievement in the of accomplishment in the motion pic- case of an alien in the motion picture ture or television industry evidenced or television industry, must be estab- by a degree of skill and recognition sig- lished for an individual alien. An O–1 nificantly above that ordinarily en- petition must be accompanied by evi- countered to the extent that the person dence that the work which the alien is is recognized as outstanding, notable, coming to the United States to con- or leading in the motion picture or tel- tinue is in the area of extraordinary evision field. ability, and that the alien meets the Peer group means a group or organi- criteria in paragraph (o)(3)(iii) or (iv) zation which is comprised of practi- of this section. tioners of the alien’s occupation. If (ii) Definitions. As used in this para- there is a collective bargaining rep- graph, the term: resentative of an employer’s employees Arts includes any field of creative ac- in the occupational classification for tivity or endeavor such as, but not lim- which the alien is being sought, such a ited to, fine arts, visual arts, culinary representative may be considered the arts, and performing arts. Aliens en- appropriate peer group for purposes of gaged in the field of arts include not consultation. only the principal creators and per- (iii) Evidentiary criteria for an O–1 formers but other essential persons alien of extraordinary ability in the fields such as, but not limited to, directors, of science, education, business, or athlet- set designers, lighting designers, sound ics. An alien of extraordinary ability in designers, choreographers, the fields of science, education, busi- choreologists, conductors, orchestra- tors, coaches, arrangers, musical super- ness, or athletics must demonstrate visors, costume designers, makeup art- sustained national or international ac- ists, flight masters, stage technicians, claim and recognition for achieve- and animal trainers. ments in the field of expertise by providing evidence of: Event means an activity such as, but not limited to, a scientific project, con- (A) Receipt of a major, internation- ference, convention, lecture series, ally recognized award, such as the tour, exhibit, business project, aca- Nobel Prize; or demic year, or engagement. Such ac- (B) At least three of the following tivity may include short vacations, forms of documentation: promotional appearances, and stop- (1) Documentation of the alien’s re- overs which are incidental and/or relat- ceipt of nationally or internationally ed to the event. A group of related ac- recognized prizes or awards for excel- tivities may also be considered to be an lence in the field of endeavor; event. In the case of an O–1 athlete, the (2) Documentation of the alien’s event could be the alien’s contract. membership in associations in the field Extraordinary ability in the field of arts for which classification is sought, means distinction. Distinction means a which require outstanding achieve- high level of achievement in the field ments of their members, as judged by of arts evidenced by a degree of skill recognized national or international and recognition substantially above experts in their disciplines or fields; that ordinarily encountered to the ex- (3) Published material in professional tent that a person described as promi- or major trade publications or major nent is renowned, leading, or well- media about the alien, relating to the known in the field of arts. alien’s work in the field for which clas- Extraordinary ability in the field of sification is sought, which shall in- science, education, business, or athletics clude the title, date, and author of means a level of expertise indicating such published material, and any nec- that the person is one of the small per- essary translation;

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(4) Evidence of the alien’s participa- major newspapers, trade journals, mag- tion on a panel, or individually, as a azines, or other publications; judge of the work of others in the same (3) Evidence that the alien has per- or in an allied field of specialization to formed, and will perform, in a lead, that for which classification is sought; starring, or critical role for organiza- (5) Evidence of the alien’s original tions and establishments that have a scientific, scholarly, or business-relat- distinguished reputation evidenced by ed contributions of major significance articles in newspapers, trade journals, in the field; publications, or testimonials; (6) Evidence of the alien’s authorship (4) Evidence that the alien has a of scholarly articles in the field, in pro- record of major commercial or criti- fessional journals, or other major cally acclaimed successes as evidenced media; by such indicators as title, rating, (7) Evidence that the alien has been standing in the field, box office re- employed in a critical or essential ca- ceipts, motion pictures or television pacity for organizations and establish- ratings, and other occupational ments that have a distinguished rep- achievements reported in trade jour- utation; nals, major newspapers, or other publi- (8) Evidence that the alien has either cations; commanded a high salary or will com- (5) Evidence that the alien has remand a high salary or other remunera- ceived significant recognition for tion for services, evidenced by con- achievements from organizations, crit- tracts or other reliable evidence. ics, government agencies, or other rec- (C) If the criteria in paragraph ognized experts in the field in which (o)(3)(iii) of this section do not readily the alien is engaged. Such testimonials apply to the beneficiary’s occupation, must be in a form which clearly indi- the petitioner may submit comparable cates the author’s authority, expertise, evidence in order to establish the bene- and knowledge of the alien’s achieve- ficiary’s eligibility. ments; or (iv) Evidentiary criteria for an O–1 (6) Evidence that the alien has either alien of extraordinary ability in the arts. commanded a high salary or will com- To qualify as an alien of extraordinary mand a high salary or other substan- ability in the field of arts, the alien tial remuneration for services in rela- must be recognized as being prominent tion to others in the field, as evidenced in his or her field of endeavor as dem- by contracts or other reliable evidence; onstrated by the following: or (A) Evidence that the alien has been (C) If the criteria in paragraph nominated for, or has been the recipi- (o)(3)(iv) of this section do not readily ent of, significant national or inter- apply to the beneficiary’s occupation, national awards or prizes in the par- the petitioner may submit comparable ticular field such as an Academy evidence in order to establish the bene- Award, an Emmy, a Grammy, or a Di- ficiary’s eligibility. rector’s Guild Award; or (v) Evidentiary criteria for an alien of (B) At least three of the following extraordinary achievement in the motion forms of documentation: picture or television industry. To qualify (1) Evidence that the alien has per- as an alien of extraordinary achieve- formed, and will perform, services as a ment in the motion picture or tele- lead or starring participant in produc- vision industry, the alien must be rec- tions or events which have a distin- ognized as having a demonstrated guished reputation as evidenced by record of extraordinary achievement as critical reviews, advertisements, pub- evidenced by the following: licity releases, publications contracts, (A) Evidence that the alien has been or endorsements; nominated for, or has been the recipi- (2) Evidence that the alien has ent of, significant national or inter- achieved national or international rec- national awards or prizes in the par- ognition for achievements evidenced by ticular field such as an Academy critical reviews or other published ma- Award, an Emmy, a Grammy, or a Di- terials by or about the individual in rector’s Guild Award; or

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(B) At least three of the following or her to work separate and apart from forms of documentation: the O–1 alien to whom he or she pro- (1) Evidence that the alien has per- vides support. An O–2 alien must be pe- formed, and will perform, services as a titioned for in conjunction with the lead or starring participant in produc- services of the O–1 alien. tions or events which have a distin- (ii) Evidentiary criteria for qualifying guished reputation as evidenced by as an O–2 accompanying alien—(A) Alien critical reviews, advertisements, pub- accompanying an O–1 artist or athlete of licity releases, publications contracts, extraordinary ability. To qualify as an or endorsements; O–2 accompanying alien, the alien (2) Evidence that the alien has must be coming to the United States to achieved national or international rec- assist in the performance of the O–1 ognition for achievements evidenced by alien, be an integral part of the actual critical reviews or other published ma- performance, and have critical skills terials by or about the individual in and experience with the O–1 alien major newspapers, trade journals, mag- which are not of a general nature and azines, or other publications; which are not possessed by a U.S. (3) Evidence that the alien has per- worker. formed, and will perform, in a lead, (B) Alien accompanying an O–1 alien of starring, or critical role for organiza- extraordinary achievement. To qualify as tions and establishments that have a an O–2 alien accompanying and O–1 distinguished reputation evidenced by alien involved in a motion picture or articles in newspapers, trade journals, television production, the alien must publications, or testimonials; have skills and experience with the O– (4) Evidence that the alien has a 1 alien which are not of a general na- record of major commercial or criti- ture and which are critical based on a cally acclaimed successes as evidenced pre-existing longstanding working re- by such indicators as title, rating, lationship or, with respect to the spe- standing in the field, box office re- cific production, because significant ceipts, motion picture or television production (including pre- and post- ratings, and other occupational production work) will take place both achievements reported in trade jour- inside and outside the United States nals, major newspapers, or other publi- and the continuing participation of the cations; alien is essential to the successful com- (5) Evidence that the alien has re- pletion of the production. ceived significant recognition for (C) The evidence shall establish the achievements from organizations, crit- current essentiality, critical skills, and ics, government agencies, or other rec- experience of the O–2 alien with the O– ognized experts in the field in which 1 alien and that the alien has substan- the alien is engaged. Such testimonials tial experience performing the critical must be in a form which clearly indi- skills and essential support services for cates the author’s authority, expertise, the O–1 alien. In the case of a specific and knowledge of the alien’s achieve- motion picture or television produc- ments; or tion, the evidence shall establish that (6) Evidence that the alien has either significant production has taken place commanded a high salary or will com- outside the United States, and will mand a high salary or other substan- take place inside the United States, tial remuneration for services in rela- and that the continuing participation tion to other in the field, as evidenced of the alien is essential to the success- by contracts or other reliable evidence. ful completion of the production. (4) Petition for an O–2 accompanying (5) Consultation—(i) General. (A) Con- alien—(i) General. An O–2 accompany- sultation with an appropriate U.S. peer ing alien provides essential support to group (which could include a person or an O–1 artist or athlete. Such aliens persons with expertise in the field), may not accompany O–1 aliens in the labor and/or management organization fields of science, business, or edu- regarding the nature of the work to be cation. Although the O–2 alien must done and the alien’s qualifications is obtain his or her own classification, mandatory before a petition for an O–1 this classification does not entitle him or O–2 classification can be approved.

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(B) Except as provided in paragraph (F) In a routine processing case (o)(5)(i)(E) of this section, evidence of where the petition is accompanied by a consultation shall be in the form of a written opinion from a peer group, but written advisory opinion from a peer the peer group is not a labor organiza- group (which could include a person or tion, the Director will forward a copy persons with expertise in the field), of the petition and all supporting docu- labor and/or management organization mentation to the national office of the with expertise in the specific field in- appropriate labor organization within 5 volved. days of receipt of the petition. If there (C) Except as provided in paragraph is a collective bargaining representa- (o)(5)(i)(E) of this section, the petitive of an employer’s employees in the tioner shall obtain a written advisory occupational classification for which opinion from a peer group (which could the alien is being sought, that rep- include a person or persons with exper- resentative shall be the appropriate tise in the field), labor, and/or manage- labor organization for purposes of this ment organization with expertise in section. The labor organization will the specific field involved. The advi- then have 15 days from receipt of the sory opinion shall be submitted along petition and supporting documents to with the petition when the petition is submit to the Service a written advi- filed. If the advisory opinion is not fa- sory opinion, comment, or letter of no vorable to the petitioner, the advisory objection. Once the 15-day period has opinion must set forth a specific state- expired, the Director shall adjudicate the petition in no more than 14 days. ment of facts which supports the con- The Director may shorten this time in clusion reached in the opinion. Advi- his or her discretion for emergency rea- sory opinions must be submitted in sons, if no unreasonable burden would writing and must be signed by an au- be imposed on any participant in the thorized official of the group or organi- process. If the labor organization does zation. not respond within 15 days, the Direc- (D) Except as provided in paragraph tor will render a decision on the record (o)(5)(i)(E) and (G) of this section, writ- without the advisory opinion. ten evidence of consultation shall be (G) In those cases where it is estab- included in the record in every ap- lished by the petitioner that an appro- proved O petition. Consultations are priate peer group, including a labor or- advisory and are not binding on the ganization, does not exist, the Service Service. shall render a decision on the evidence (E) In a case where the alien will be of record. employed in the field of arts, enter- (ii) Consultation requirements for an O– tainment, or athletics, and the Service 1 alien for extraordinary ability—(A) Con- has determined that a petition merits tent. Consultation with a peer group in expeditious handling, the Service shall the area of the alien’s ability (which contact the appropriate labor and/or may include a labor organization), or a management organization and request person or persons with expertise in the an advisory opinion if one is not sub- area of the alien’s ability, is required mitted by the petitioner. The labor in an O–1 petition for an alien of ex- and/or management organization shall traordinary ability. If the advisory have 24 hours to respond to the Serv- opinion is not favorable to the peti- ice’s request. The Service shall adju- tioner, the advisory opinion must set dicate the petition after receipt of the forth a specific statement of facts response from the consulting organiza- which supports the conclusion reached tion. The labor and/or management or- in the opinion. If the advisory opinion ganization shall then furnish the Serv- is favorable to the petitioner, it should ice with a written advisory opinion describe the alien’s ability and within 5 days of the initiating request. achievements in the field of endeavor, If the labor and/or management organi- describe the nature of the duties to be zation fails to respond within 24 hours, performed, and state whether the posi- the Service shall render a decision on tion requires the services of an alien of the petition without the advisory opin- extraordinary ability. A consulting or- ion. ganization may also submit a letter of

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no objection in lieu of the above if it nization in the area of the alien’s abil- has no objection to the approval of the ity is required. If an advisory opinion petition. is not favorable to the petitioner, the (B) Waiver of consultation of certain advisory opinion must set forth a spe- aliens of extraordinary ability in the field cific statement of facts which supports of arts. Consultation for an alien of ex- the conclusion reached in the opinion. traordinary ability in the field of arts If the advisory opinion is favorable to shall be waived by the Director in the petitioner, the opinion provided by those instances where the alien seeks the labor and/or management organiza- readmission to the United States to tion should describe the alien’s essen- perform similar services within 2 years tiality to, and working relationship of the date of a previous consultation. with, the O–1 artist or athlete and The director shall, within 5 days of state whether there are available U.S. granting the waiver, forward a copy of workers who can perform the support the petition and supporting docu- services. If the alien will accompany an mentation to the national office of an O–1 alien involved in a motion picture appropriate labor organization. Peti- or television production, the advisory tioners desiring to avail themselves of opinion should address the alien’s the waiver should submit a copy of the skills and experience wit the O–1 alien prior consultation with the petition and whether the alien has a pre-exist- and advise the Director of the waiver ing longstanding working relationship request. with the O–1 alien, or whether signifi- (iii) Consultation requirements for an cant production will take place in the O–1 alien of extraordinary achievement. United States and abroad and if the In the case of an alien of extraordinary continuing participation of the alien is achievement who will be working on a essential to the successful completion motion picture or television produc- of the production. A consulting organi- tion, consultation shall be made with zation may also submit a letter of no the appropriate union representing the objection in lieu of the above if it has alien’s occupational peers and a man- no objection to the approval of the pe- agement organization in the area of tition. the alien’s ability. If an advisory opin- (v) Organizations agreeing to provide ion is not favorable to the petitioner, advisory opinions. The Service will list the advisory opinion must set forth a in its Operations Instructions for O specific statement of facts which sup- classification those peer groups, labor ports the conclusion reached in the organizations, and/or management or- opinion. If the advisory opinion is fa- ganizations which have agreed to pro- vorable to the petitioner, the written vide advisory opinions to the Service advisory opinion from the labor and and/or petitioners. The list will not be management organizations should de- an exclusive or exhaustive list. The scribe the alien’s achievements in the Service and petitioners may use other motion picture or television field and sources, such as publications, to iden- state whether the position requires the tify appropriate peer groups, labor or- services of an alien of extraordinary ganizations, and management organi- achievement. If a consulting organiza- zations. Additionally, the Service will tion has no objection to the approval of list in its Operations Instructions the petition, the organization may sub- those occupations or fields of endeavor mit a letter of no objection in lieu of where the nonexistence of an appro- the above. priate consulting entity has been veri- (iv) Consultation requirements for an fied. O–2 accompanying alien. Consultation (6) Approval and validity of petition— with a labor organization with exper- (1) Approval. The Director shall con- tise in the skill area involved is re- sider all of the evidence submitted and quired for an O–2 alien accompanying such other evidence as may be inde- an O–1 alien of extraordinary ability. pendently required to assist in the ad- In the case of an O–2 alien seeking judication. The Director shall notify entry for a motion picture or television the petitioner of the approval of the pe- production, consultation with a labor tition on Form I–797, Notice of Action. organization and a management orga- The approval notice shall include the

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alien beneficiary name, the classifica- is proposed on the basis of derogatory tion, and the petition’s period of valid- information of which the petitioner is ity. unaware, the Director shall notify the (ii) Recording the validity of petitions. petitioner of the intent to deny the pe- Procedures for recording the validity tition and the basis for the denial. The period of petitions are as follows; petitioner may inspect and rebut the (A) If a new O petition is approved evidence and will be granted a period of before the date the petitioner indicates 30 days from the date of the notice in the services will begin, the approved which to do so. All relevant rebuttal petition and approval notice shall show material will be considered in making the actual dates requested by the peti- a final decision. tioner, not to exceed the limit specified (ii) Notice of denial. The petitioner by paragraph (o)(6)(iii) of this section shall be notified of the decision, the or other Service policy. reasons for the denial, and the right to (B) If a new 0 petition is approved appeal the denial under 8 CFR part 103. after the date the petitioner indicates (8) Revocation of approval of petition— the services will begin, the approved (i) General. (A) The petitioner shall im- petition and approval notice shall gen- mediately notify the Service of any erally show a validity period commenc- changes in the terms and conditions of ing with the date of approval and end- employment of a beneficiary which ing with the date requested by the peti- may affect eligibility under section tioner, not to exceed the limit specified 101(a)(15)(O) of the Act and paragraph by paragraph (o)(6)(iii) of this section (o) of this section. An amended petition or other Service policy. should be filed when the petitioner con- (C) If the period of services requested tinues to employ the beneficiary. If the by the petitioner exceeds the limit petitioner no longer employs the bene- specified in paragraph (o)(6)(iii) of this ficiary, the petitioner shall send a let- section, the petition shall be approved ter explaining the change(s) to the Di- only up to the limit specified in that rector who approved the petition. paragraph. (B) The Director may revoke a peti- (iii) Validity—(A) O–1 petition. An ap- tion at any time, even after the valid- proved petition for an alien classified ity of the petition has expired. under section 101(a)(15)(O)(i) of the Act shall be valid for a period of time de- (ii) Automatic revocation. The ap- termined by the Director to be nec- proval of an unexpired petition is auto- essary to accomplish the event or ac- matically revoked if the petitioner, or tivity, not to exceed 3 years. the named employer in a petition filed by an agent, goes out of business, files (B) O–2 petition. An approved petition for an alien classified under section a written withdrawal of the petition, or 101(a)(15)(O)(ii) of the Act shall be valid notifies the Service that the bene- for a period of time determined to be ficiary is no longer employed by the pe- necessary to assist the O–1 alien to ac- titioner. complish the event or activity, not to (iii) Revocation on notice—(A) Grounds exceed 3 years. for revocation. The Director shall send (iv) Spouse and dependents. The to the petitioner a notice of intent to spouse and unmarried minor children revoke the petition in relevant part if of the O–1 or O–2 alien beneficiary are is determined that: entitled to O–3 nonimmigrant classi- (1) The beneficiary is no longer em- fication, subject to the same period of ployed by the petitioner in the capac- admission and limitations as the alien ity specified in the petition; beneficiary, if they are accompanying (2) The statement of facts contained or following to join the alien bene- in the petition was not true and cor- ficiary in the United States. Neither rect; the spouse nor a child of the alien ben- (3) The petitioner violated the terms eficiary may accept employment un- or conditions of the approved petition; less he or she has been granted employ- (4) The petitioner violated the re- ment authorization. quirements of section 101(a)(15)(O) of (7) Denial of petition—(i) Notice of in- the Act or paragraph (o) of this sec- tent to deny. When an adverse decision tion; or

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(5) The approval of the petition vio- each. If the alien leaves the United lated paragraph (o) of this section or States for business or personal reasons involved gross error. while the extension requests are pend- (B) Notice and decision. The notice of ing, the petitioner may request the Di- intent to revoke shall contain a de- rector to cable notification of approval tailed statement of the grounds for the of the petition extension to the con- revocation and the time period allowed sular office abroad where the alien will for the petitioner’s rebuttal. The peti- apply for a visa. tioner may submit evidence in rebuttal (ii) Extension period. An extension of within 30 days of the date of the notice. stay may be authorized in increments The Director shall consider all relevant of up to 1 year for an O–1 or O–2 bene- evidence presented in deciding whether ficiary to continue or complete the to revoke the petition. same event or activity for which he or (9) Appeal of a denial or a revocation of she was admitted plus an additional 10 a petition—(i) Denial. A denied petition days to allow the beneficiary to get his may be appealed under 8 CFR part 103. or her personal affairs in order. (ii) Revocation. A petition that has been revoked on notice may be ap- (iii) Denial of an extension of stay. The pealed under 8 CFR part 103. Automatic denial of the request for the alien’s ex- revocations may not be appealed. tension of temporary stay may not be (10) Admission. A beneficiary may be appealed. admitted to the United States for the (13) Effect of approval of a permanent validity period of the petition, plus a labor certification or filing of a preference period of up to 10 days before the valid- petition on O classification. The approval ity period begins and 10 days after the of a permanent labor certification or validity period ends. The beneficiary the filing of a preference petition for may only engage in employment dur- an alien shall not be a basis for denying the validity period of the petition. ing an O–1 petition, a request to extend (11) Extention of visa petition validity. such a petition, or the alien’s applica- The petitioner shall file a request to tion for admission, change of status, or extend the validity of the original peti- extension of stay. The alien may legiti- tion under section 101(a)(15)(O) of the mately come to the United States for a Act on Form I–129, Petition for a Non- temporary period as an O–1 nonimmigrant Worker, in order to con- immigrant and depart voluntarily at tinue or complete the same activities the end of his or her authorized stay or events specified in the original peti- and, at the same time, lawfully seek to tion. Supporting documents are not re- become a permanent resident of the quired unless requested by the Direc- United States. tor. A petition extension may be filed (14) Effect of a strike. (i) If the Sec- only if the validity of the original peti- retary of Labor certifies to the Com- tion has not expired. missioner that a strike or other labor (12) Extension of stay—(i) Extension dispute involving a work stoppage of procedure. The petitioner shall request workers is in progress in the occupa- extension of the alien’s stay to con- tion at the place where the beneficiary tinue or complete the same event or activity by filing Form I–129, accom- is to be employed, and that the em- panied by a statement explaining the ployment of the beneficiary would ad- reasons for the extension. The peti- versely affect the wages and working tioner must also request a petition ex- conditions of U.S. citizens and lawful tension. The dates of extension shall be resident workers: the same for the petition and the bene- (A) A petition to classify an alien as ficiary’s extension of stay. The alien a nonimmigrant as defined in section beneficiary must be physically present 101(a)(15)(O) of the Act shall be denied; in the United States at the time of fil- or ing of the extension of stay. Even (B) If a petition has been approved, though the request to extend the peti- but the alien has not yet entered the tion and the alien’s stay are combined United States, or has entered the Unit- on the petition, the Director shall ed States but has not commenced em- make a separate determination on ployment, the approval of the petition

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is automatically suspended, and the ap- before the date of his or her intended plication for admission on the basis of return, may use Form I–797 to apply for the petition shall be denied. a new or revalidated visa during the (ii) If there is a strike or other labor validity period of the petition. A copy dispute involving a work stoppage of of Form I–797 shall be retained by the workers in progress, but such strike or beneficiary and presented during the other labor dispute is not certified validity of the petition when reenter- under paragraph (o)(14)(i) of this sec- ing the United States to resume the tion, the Commissioner shall not deny same employment with the same peti- a petition or suspend an approved petitioner. tion. (16) Return transportation requirement. (iii) If the alien has already com- In the case of an alien who enters the menced employment in the United United States under section 101(a)(15(O) States under an approved petition and of the Act and whose employment ter- is participating in a strike or labor dis- minates for reasons other than vol- pute involving a work stoppage of untary resignation, the employer workers, whether or not such strike or whose offer of employment formed the other labor dispute has been certified basis of such nonimmigrant status and by the Secretary of Labor, the alien the petitioner are jointly and severally shall not be deemed to be failing to liable for the reasonable cost of return maintain his or her status solely on ac- transportation of the alien abroad. For count of past, present, or future par- the purposes of this paragraph, the ticipation in a strike or other labor term ‘‘abroad’’ means the alien’s last dispute involving a work stoppage of place of residence prior to his or her workers but is subject to the following terms and conditions: entry into the United States. (A) The alien shall remain subject to (p) Artists, athletes, and entertainers— all applicable provisions of the Immi- (1) Classifications—(i) General. Under gration and Nationality Act and regu- section 101(a)(15)(P) of the Act, an alien lations promulgated thereunder in the having a residence in a foreign country same manner as are all other O non- which he or she has not intention or immigrants; abandoning may be authorized to come (B) The status and authorized period to the United States temporarily to of stay of such an alien is not modified perform services for an employer or a or extended in any way by virtue of his sponsor. Under the nonimmigrant cat- or her participation in a strike or other egory, the alien may be classified labor dispute involving a work stop- under section 101(a)(15)(P)(i) of the Act page of workers; and as an alien who is coming to the United (C) Although participation by an O States to perform services as an inter- nonimmigrant alien in a strike or nationally recognized athlete, individ- other labor dispute involving a work ually or as part of a group or team, or stoppage of workers will not constitute member of an internationally recog- a ground for deportation, and alien who nized entertainment group; under sec- violates his or her status or who re- tion 101(a)(15)(P)(ii) of the Act, who is mains in the United States after his or coming to perform as an artist or en- her authorized period of stay has ex- tertainer under a reciprocal exchange pired will be subject to deportation. program; under section 101(a)(15)(P)(iii) (15) Use of approval notice, Form I–797. of the Act, as an alien who is coming The Service shall notify the petitioner solely to perform, teach, or coach of Form I–797 whenever a visa petition under a program that is culturally or an extension of a visa petition is ap- unique; or under section proved under the O classification. The 101(a)(15)(P)(iv) of the Act, as the beneficiary of an O petition who does spouse or child of an alien described in not require a nonimmigrant visa may section 101(a)(15)(P) (i), (ii), or (iii) of present a copy of the approval notice the Act who is accompanying or follow- at a Port-of-Entry to facilitate entry ing to join the alien. These classifica- into the United States. A beneficiary tions are called P–1, P–2, P–3, and P–4 who is required to present a visa for ad- respectively. The employer or sponsor mission, and who visa will have expired must file a petition with the Service

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for review of the services to be per- program shall be filed by the U.S. labor formed and for determination of the organization which negotiated the re- alien’s eligibility for P–1, P–2, or P–3 ciprocal exchange agreement, the spon- classification before the alien may soring organization, or an emp-loyer in apply for a visa or seek admission to the United States. A P–3 petition for the United States. This paragraph sets an artist or entertainer in a culturally forth the standards and procedures ap- unique program shall be filed by the plicable to these classifications. sponsoring organization or an em- (ii) Description of classification—(A) A ployer in the United States. Essential P–1 classification applies to an alien support personnel may not be included who is coming temporarily to the Unit- on the petition filed for the principal ed States: alien(s). These aliens require a sepa- (1) To perform at specific athletic rate petition. The petitioner shall file competition as an athlete, individually a P petition on Form I–129, Petition for or as part of a group or team, at an Nonimmigrant Worker, with the Serv- internationally recognized level or per- ice Center which has jurisdiction in the formance, or area where the alien will work. The pe- (2) To perform with, or as an integral tition may not be filed more than 6 and essential part of the performance months before the actual need for the of, and entertainment group that has alien’s services. A P–1, P–2, or P–3 peti- been recognized internationally as tion shall be adjudicated at the appro- being outstanding in the discipline for priate Service Center, even in emer- a sustained and substantial period of gent situations. time, and who has had a sustained and (ii) Evidence required to accompany a substantial relationship with the group petition for a P nonimmigrant. Petitions (ordinarily for at least 1 year) and pro- for P nonimmigrant aliens shall be ac- vides functions integral to the perform- companied by the following: ance of the group. (A) The evidence specified in the spe- (B) A P–2 classification applies to an cific section of this part for the classi- alien who is coming temporarily to the fication; United States to perform as an artist (B) Copies of any written contracts or entertainer, individually or as part between the petitioner and the alien of a group, or to perform as an integral beneficiary or, if there is no written part of the performance of such a contract, a summary of the terms of group, and who seeks to perform under the oral agreement under which the a reciprocal exchange program which is alien(s) will be employed; between an organization or organiza- (C) An explanation of the nature of tions in the United States and an orga- the events or activities, the beginning nization or organizations in one or and ending dates for the events or ac- more foreign states, and which pro- tivities, and a copy of any itinerary for vides for the temporary exchange of the events or activities; and artists and entertainers, or groups of (D) A written consultation from a artists and entertainers. labor organization. (C) A P–3 classification applies to an (iii) Form of documentation. The evi- alien artist or entertainer who is com- dence submitted with an P petition ing temporarily to the United States, should conform to the following: either individually or as part of a (A) Affidavits, contracts, awards, and group, or as an integral part of the per- similar documentation must reflect formance of the group, to perform, the nature of the alien’s achievement teach, or coach under a commercial or and be executed by an officer or respon- noncommercial program that is cul- sible person employed by the institu- turally unique. tion, establishment, or organization (2) Filing of petitions—(i) General. A P– where the work has performed. 1 petition for an athlete or entertain- (B) Affidavits written by present or ment group shall be filed by a U.S. em- former employers or recognized experts ployer or sponsoring organization, a certifying to the recognition and ex- foreign employer, or an established traordinary ability, or, in the case of a U.S. agent. A P–2 petition for an artist motion picture or television produc- or entertainer in a reciprocal exchange tion, the extraordinary achievement of

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the alien, which shall specifically de- tioner may add additional similar or scribe the alien’s recognition and abil- comparable performances, engage- ity or achievement in factual terms. ments, or competitions during the va- The affidavit must also set forth the lidity period of the petition without expertise of the affiant and the manner filing an amended petition. in which the affiant acquired such in- (E) Agents as petitioners. An estab- formation. lished U.S. agent may file a petition in (C) A legible copy of a document in cases involving workers who tradition- support of the petition may be submit- ally are self-employed or use agents to ted in lieu of the original. However, the arrange short-term employment on original document shall be submitted if their behalf with numerous employers, requested by the Director. and in cases where a foreign employer (iv) Other filing situations—(A) Services authorizes the agent to act in its be- in more than one location. A petition half. A petition filed by an agent is which requires the alien to work in subject to the following conditions: more than one location (e.g., a tour) (1) A person or company in business must include an itinerary with the as an agent may file the P petition in- dates and locations of the perform- volving multiple employers as the rep- ances and must be filed with the Serv- resentative of both the employers and ice Center which has jurisdiction in the the beneficiary(ies) if the supporting area where the petitioner is located. documentation includes a complete The address which the petitioner speci- itinerary of services or engagements. fies as its location on the petition shall The itinerary shall specify the dates of be where the petitioner is located for each service or engagement, the names purposes of this paragraph (p). If the and addresses of the actual employers, petitioner is a foreign employer with and the names and addresses of the es- no United States location, the petition tablishments, venues, or locations shall be filed with the Service Center where the services will be performed. that has jurisdiction over the area In questionable cases, a contract be- where the employment will begin. tween the employer(s) and the bene- (B) Services for more than one em- ficiary(ies) may be required. The bur- ployer. If the beneficiary(ies) will work den is on the agent to explain the for more than one employer within the terms and conditions of the employ- same time period, each employer must ment and to provide any required docu- file a separate petition with the Serv- mentation. ice Center that has jurisdiction over (2) An agent performing the function the area where the alien will perform of an employer must specify the wage the services, unless an established offered and the other terms and condi- agent files the petition pursuant to tions of employment by contractual paragraph (p)(2)(iv) of this section. agreement with the beneficiary(ies). (C) Change of employer. If a P–1, P–2, The agent/employer must also provide or P–3 alien in the United States seeks an itinerary of definite employment to change employers or sponsors, the and information on any other services new employer or sponsor must file both planned for the period of time re- a petition and a request to extend the quested. alien’s stay in the United States. If the (F) Multiple beneficiaries. More than petition was initially filed by an agent, one beneficiary may be included in a P an amended petition must be filed with petition if they are members of a group information relating to the new em- seeking classification based on the rep- ployer and with a request for an exten- utation of the group as an entity, or if sion of stay. they will provide essential support to (D) Amended petition. The petitioner P–1, P–2, or P–3 beneficiaries perform- shall file an amended petition, with ing in the same location and in the fee, with the Service Center where the same occupation. original petition was filed to reflect (G) Named beneficiaries. Petitions for any material changes in the terms and P classification must include the conditions of employment or the bene- names of beneficiaries and other re- ficiary’s eligibility as specified in the quired information at the time of fil- original approved petition. A peti- ing.

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(H) Substitution of beneficiaries. Bene- performed by a United States worker ficiaries may be substituted for P–1, P– and which are essential to the success- 2, and P–3 petitions for groups. To re- ful performance of services by the P–1, quest substitution, the petitioner shall P–2, alien. Such alien must have appro- submit a letter requesting such substi- priate qualifications to perform the tution, along with a copy of the peti- services, critical knowledge of the spe- tioner’s approval notice, to the con- cific services to be performed, and ex- sular office at which the alien will perience in providing such support to apply for a visa or the Port-of-Entry the P–1, P–2, or P–3 alien. where the alien will apply for admis- Group means two or more persons es- sion. Essential support personnel may tablished as one entity or unit to per- not be substituted at consular offices form or to provide a service. or at Ports-of-Entry. Internationally recognized means hav- (3) Definitions. As used in this para- ing a high level of achievement in a graph, the term: field evidenced by a degree of skill and Arts includes fields of creative activ- recognition substantially above that ity or endeavor such as, but not lim- ordinarily encountered, to the extent ited to, fine arts, visual arts, and per- that such achievement is renowned, forming arts. leading, or well-known in more than Competition, event, or performance one country. means an activity such as an athletic Member of a group means a person competition, athletic season, tour- who is actually performing the enter- nament, tour, exhibit, project, entertainment services. tainment event, or engagement. Such Sponsor means an established organi- activity could include short vacations, zation in the United States which will promotional appearances for the peti- not directly employ a P–1, P–2, or P–3 tioning employer relating to the com- alien but will assume responsibility for petition, event, or performance, and the accuracy of the terms and condi- stopovers which are incidental and/or tions specified in the petition. related to the activity. An athletic Team means two or more persons or- competition or entertainment event ganized to perform together as a com- could include an entire season of per- petitive unit in a competitive event. formances A group of related activities (4) Petition for an internationally recog- will also be considered an event. In the nized athlete or member of an internation- case of a P–2 petition, the event may be ally recognized entertainment group (P– the duration of the reciprocal exchange 1)—(i) Types of classification—(A) P–1 agreement. In the case of a P–1 athlete, classification as an athlete in an individ- the event may be the duration of the ual capacity. A P–1 classification may alien’s contract. be granted to an alien who is an inter- Contract means the written agree- nationally recognized athlete based on ment between the petitioner and the his or her own reputation and achieve- beneficiary(ies) that explains the terms ments as an individual. The alien must and conditions of employment. The be coming to the United States to per- contract shall describe the services to form services which require an inter- be performed, and specify the wages, nationally recognized athlete. hours of work, working conditions, and (B) P–1 classification as a member of an any fringe benefits. entertainment group or an athletic team. Culturally unique means a style of ar- An entertainment group or athletic tistic expression, methodology, or me- team consists of two or more persons dium which is unique to a particular who function as a unit. The entertain- country, nation, society, class, eth- ment group or athletic team as a unit nicity, religion, tribe, or other group of must be internationally recognized as persons. outstanding in the discipline and must Essential support alien means a highly be coming to perform services which skilled, essential person determined by require an internationally recognized the Director to be an integral part of entertainment group or athletic team. the performance of a P–1, P–2, or P–3 A person who is a member of an inter- alien because he or she performs sup- nationally recognized entertainment port services which cannot be readily group or athletic team may be granted

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P–1 classification based on that rela- for a U.S. college or university in tionship, but may not perform services intercollegiate competition; separate and apart from the entertain- (iv) A written statement from an offi- ment group or athletic team. An enter- cial of the governing body of the sport tainment group must have been estab- which details how the alien or team is lished for a minimum of 1 year, and 75 internationally recognized; percent of the members of the group (v) A written statement from a mem- must have been performing entertain- ber of the sports media or a recognized ment services for the group for a mini- expert in the sport which details how mum of 1 year. the alien or team is internationally (ii) Criteria and documentary require- recognized; ments for P–1 athletes—(A) General. A P– (vi) Evidence that the individual or 1 athlete must have an internationally team is ranked if the sport has inter- recognized reputation as an international rankings; or national athlete or he or she must be a (vii) Evidence that the alien or team member of a foreign team that is inter- has received a significant honor or nationally recognized. The athlete or award in the sport. team must be coming to the United (iii) Criteria and documentary require- States to participate in an athletic ments for members of an internationally competition which has a distinguished recognized entertainment group—(A) Gen- reputation and which requires partici- eral. A P–1 classification shall be ac- pation of an athlete or athletic team corded to an entertainment group to that has an international reputation. perform as a unit based on the inter- (B) Evidentiary requirements for an national reputation of the group. Indi- internationally recognized athlete or ath- vidual entertainers shall not be ac- letic team. A petition for an athletic corded P–1 classification to perform team must be accompanied by evidence separate and apart from a group. Ex- cept as provided in paragraph that the team as a unit has achieved (p)(4)(iii)(C)(2) of this section, it must international recognition in the sport. be established that the group has been Each member of the team is accorded internationally recognized as outstand- P–1 classification based on the inter- ing in the discipline for a sustained and national reputation of the team. A pe- substantial period of time. Seventy- tition for an athlete who will compete five percent of the members of the individually or as a member of a U.S. group must have had a sustained and team must be accompanied by evidence substantial relationship with the group that the athlete has achieved inter- for at least 1 year and must provide national recognition in the sport based functions integral to the group’s per- on his or her reputation. A petition for formance. a P–1 athlete or athletic team shall in- (B) Evidentiary criteria for members of clude: internationally recognized entertainment (1) A tendered contract with a major groups. A petition for P–1 classification United States sports league or team, or for the members of an entertainment a tendered contract in an individual group shall be accompanied by: sport commensurate with international (1) Evidence that the group has been recognition in that sport, if such con- established and performing regularly tracts are normally executed in the for a period of at least 1 year; sport, and (2) A statement from the petitioner (2) Documentation of at least two of listing each member of the group and the following: the exact dates for which each member (i) Evidence of having participated to has been employed on a regular basis a significant extent in a prior season by the group; and with a major United States sports (3) Evidence that the group has been league; internationally recognized in the dis- (ii) Evidence of having participated cipline for a sustained and substantial in international competition with a na- period of time. This may be dem- tional team; onstrated by the submission of evi- (iii) Evidence of having participated dence of the group’s nomination or re- to a significant extent in a prior season ceipt of significant international

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awards or prices for outstanding circus or circus group, provided that achievement in its field or by three of the alien or aliens are coming to join a the following different types of docu- circus that has been recognized nation- mentation: ally as outstanding for a sustained and (i) Evidence that the group has per- substantial period of time or as part of formed, and will perform, as a starring such a circus. or leading entertainment group in pro- (2) Certain nationally known entertain- ductions or events which have a distin- ment groups. The Director may waive guished reputation as evidenced by the international recognition require- critical reviews, advertisements, pub- ment in the case of an entertainment licity releases, publications, contracts, group which has been recognized na- or endorsements; tionally as being outstanding in its dis- (ii) Evidence that the group has cipline for a sustained and substantial achieved international recognition and period of time in consideration of spe- acclaim for outstanding achievement cial circumstances. An example of a in its field as evidenced by reviews in special circumstances would be when major newspapers, trade journals, mag- an entertainment group may find it azines, or other published material; difficult to demonstrate recognition in (iii) Evidence that the group has per- more than one country due to such fac- formed, and will perform, services as a tors as limited access to news media or leading or starring group for organiza- consequences of geography. tions and establishments that have a (3) Waiver of 1-year relationship in exi- distinguished reputation evidenced by gent circumstances. The Director may articles in newspapers, trade journals, waive the 1-year relationship require- publications, or testimonials; ment for an alien who, because of ill- (iv) Evidence that the group has a ness or unanticipated and exigent cir- record of major commercial or criti- cumstances, replaces an essential cally acclaimed successes, as evidenced member of a P–1 entertainment group by such indicators as ratings; standing or an alien who augments the group by in the field; box office receipts; record, performing a critical role. The Depart- cassette, or video sales; and other ment of State is hereby delegated the achievements in the field as reported authority to waive the 1-year relation- in trade journals, major newspapers, or ship requirement in the case of con- other publications; sular substitutions involving P–1 enter- (v) Evidence that the group has tainment groups. achieved significant recognition for achievements from organizations, crit- (iv) P–1 classification as an essential ics, government agencies, or other rec- support alien—(A) General. An essential ognized experts in the field. Such support alien as defined in paragraph testimonials must be in a form that (p)(3) of this section may be granted P– clearly indicates the author’s author- 1 classification based on a support rela- ity, expertise, and knowledge of the tionship with an individual P–1 athlete, alien’s achievements; or P–1 athletic team, or a P–1 entertain- (vi) Evidence that the group has ei- ment group. ther commanded a high salary or will (B) Evidentiary criteria for a P–1 essen- command a high salary or other sub- tial support petition. A petition for P–1 stantial remuneration for services essential support personnel must be ac- comparable to other similarly situated companied by: in the field as evidenced by contracts (1) A consultation from a labor orga- or other reliable evidence. nization with expertise in the area of (C) Special provisions for certain enter- the alien’s skill; tainment groups—(1) Alien circus person- (2) A statement describing the nel. The 1-year group membership re- alien(s) prior essentiality, critical quirement and the international rec- skills, and experience with the prin- ognition requirement are not applica- cipal alien(s); and ble to alien circus personnel who per- (3) A copy of the written contract or form as part of a circus or circus group, a summary of the terms of the oral or who constitute an integral and es- agreement between the alien(s) and the sential part of the performance of such employer.

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(5) Petition for an artist or entertainer with comparable skills, and that the under a reciprocal exchange program (P– terms and conditions of employment 2)—(i) General. (A) A P–2 classification are similar. shall be accorded to artists or enter- (iii) P–2 classification as an essential tainers, individually or as a group, who support alien—(A) General. An essential will be performing under a reciprocal support alien as defined in paragraph exchange program which is between an (p)(3) of this section may be granted P– organization or organizations in the 2 classification based on a support rela- United States, which may include a tionship with a P–2 entertainer or P–2 management organization, and an or- entertainment group. ganization or organizations in one or (B) Evidentiary criteria for a P–2 essen- more foreign states and which provides tial support petition. A petition for P–2 for the temporary exchange of artists essential support personnel must be ac- and entertainers, or groups of artists companied by: and entertainers. (1) A consultation from a labor orga- (B) The exchange of artists or enter- nization with expertise in the area of tainers shall be similar in terms of cal- the alien’s skill; iber of artists or entertainers, terms (2) A statement describing the and conditions of employment, such as alien(s) prior essentiality, critical length of employment, and numbers of skills, and experience with the prin- artists or entertainers involved in the cipal alien(s); and exchange. However, this requirement does not preclude an individual for (3) A copy of the written contract or group exchange. a summary of the terms of the oral (C) An alien who is an essential sup- agreement between the alien(s) and the port person as defined in paragraph employer. (p)(3) of this section may be accorded (6) Petition for an artist or entertainer P–2 classification based on a support under a culturally unique program—(i) relationship to a P–2 artist or enter- General. (A) A P–3 classification may be tainer under a reciprocal exchange pro- accorded to artists or entertainers, in- gram. dividually or as a group, coming to the (ii) Evidentiary requirements for peti- United States for the purpose of devel- tion involving a reciprocal exchange pro- oping, interpreting, representing, gram. A petition for P–2 classification coaching, or teaching a unique or tra- shall be accompanied by: ditional ethnic, folk, cultural, musical, (A) A copy of the formal reciprocal theatrical, or artistic performance or exchange agreement between the U.S. presentation. organization or organizations which (B) The artist or entertainer must be sponsor the aliens and an organization coming to the United States to partici- or organizations in a foreign country pate in a cultural event or events which will receive the U.S. artist or en- which will further the understanding tertainers; or development of his or her art form. (B) A statement from the sponsoring The program may be of a commercial organization describing the reciprocal or noncommercial nature. exchange of U.S. artists or entertainers (ii) Evidentiary criteria for a petition as it relates to the specific petition for involving a culturally unique program. A which P–2 classification is being petition for P–3 classification shall be sought; accompanied by: (C) Evidence that an appropriate (A) Affidavits, testimonials, or let- labor organization in the United States ters from recognized experts attesting was involved in negotiating, or has to the authenticity of the alien’s or the concurred with, the reciprocal ex- group’s skills in performing, present- change of U.S. and foreign artists or ing, coaching, or teaching the unique entertainers; and or traditional art form and giving the (D) Evidence that the aliens for credentials of the expert, including the whom P–2 classification is being sought basis of his or her knowledge of the and the U.S. artists or entertainers alien’s or group’s skill, or subject to the reciprocal exchange (B) Documentation that the perform- agreement are artists or entertainers ance of the alien or group is culturally

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unique, as evidence by reviews in news- proved petition. Consultations are ad- papers, journals, or other published visory and are not binding on the Serv- materials; and ice. (C) Evidence that all of the perform- (E) In a case where the Service has ances or presentations will be cul- determined that a petition merits ex- turally unique events. peditious handling, the Service shall (iii) P–3 classification as an essential contact the labor organization and re- support alien—(A) General. An essential quest an advisory opinion if one is not support alien as defined in paragraph submitted by the petitioner. The labor (p)(3) of this section may be granted P– organization shall have 24 hours to re- 3 classification based on a support rela- spond to the Service’s request. The tionship with a P–3 entertainer or P–3 Service shall adjudicate the petition entertainment group. after receipt of the response from the (B) Evidentiary criteria for a P–3 essen- labor organization. The labor organiza- tial support petition. A petition for P–3 tion shall then furnish the Service with essential support personnel must be ac- a written advisory opinion within 5 companied by: working days of the request. If the (1) A consultation from a labor orga- labor organization fails to respond nization with expertise in the area of within 24 hours, the Service shall the alien’s skill; render a decision on the petition with- (2) A statement describing the out the advisory opinion. alien(s) prior essentiality, critical (F) In those cases where it is estab- skills and experience with the principal lished by the petitioner that an appro- alien(s); and priate labor organization does not (3) A copy of the written contract or exist, the Service shall render a deci- a summary of the terms of the oral sion on the evidence of record. agreement between the alien(s) and the employer. (ii) Consultation requirements for P–1 (7) Consultation—(i) General. (A) Con- athletes and entertainment groups. Con- sultation with an appropriate labor or- sultation with a labor organization ganization regarding the nature of the that has expertise in the area of the work to be done and the alien’s quali- alien’s sport or entertainment field is fications is mandatory before a peti- required in the case of a P–1 petition. If tion for P–1, P–2, or P–3 classification the advisory opinion is not favorable to can be approved. the petitioner, the advisory opinion (B) Except as provided in paragraph must set forth a specific statement of (p)(7)(i)(E) of this section, evidence of facts which support the conclusion consultation shall be a written advi- reached in the opinion. If the advisory sory opinion from an appropriate labor opinion provided by the labor organiza- organization. tion is favorable to the petitioner it (C) Except as provided in paragraph should evaluate and/or describe the (p)(7)(i)(E) of this section, the peti- alien’s or group’s ability and achieve- tioner shall obtain a written advisory ments in the field of endeavor, com- opinion from an appropriate labor or- ment on whether the alien or group is ganization. The advisory opinion shall internationally recognized for achieve- be submitted along with the petition ments, and state whether the services when the petition is filed. If the advi- the alien or group is coming to perform sory opinion is not favorable to the pe- are appropriate for an internationally titioner, the advisory opinion must set recognized athlete or entertainment forth a specific statement of facts group. In lieu of the above, a labor or- which support the conclusion reached ganization may submit a letter of no in the opinion. Advisory opinions must objection if it has no objection to the be submitted in writing and signed by approval of the petition. an authorized official of the organiza- (iii) Consultation requirements for P–1 tion. circus personnel. The advisory opinion (D) Except as provided in paragraph provided by the labor organization (p)(7)(i) (E) and (F) of this section, should comment on whether the circus written evidence of consultation shall which will employ the alien has na- be included in the record of every ap- tional recognition as well as any other

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aspect of the beneficiary’s or bene- sentiality to and working relationship ficiaries’ qualifications which the labor with the artist or entertainer, and organization deems appropriate. If the state whether United States workers advisory opinion is not favorable to the are available who can perform the sup- petitioner, it must set forth a specific port services. If the advisory opinion is statement of facts which support the not favorable to the petitioner, it must conclusion reached in the opinion. In also set forth a specific statement of lieu of the above, a labor organization facts which support the conclusion may submit a letter of no objection if reached in the opinion. A labor organi- it has no objection to the approval of zation may submit a letter of no objec- the petition. tion if it has no objection to the ap- (iv) Consultation requirements for P–2 proval of the petition. alien in a reciprocal exchange program. In P–2 petitions where an artist or en- (vii) Labor organizations agreeing to tertainer is coming to the United provide consultations. The Service shall States under a reciprocal exchange pro- list in its Operations Instructions for P gram, consultation with the appro- classification those organizations priate labor organization is required to which have agreed to provide advisory verify the existence of a viable ex- opinions to the Service and/or petition- change program. The advisory opinion ers. The list will not be an exclusive or from the labor organization shall com- exhaustive list. The Service and peti- ment on the bona fides of the recip- tioners may use other sources, such as rocal exchange program and specify publications, to identify appropriate whether the exchange meets the re- labor organizations. The Service will quirements of paragraph (p)(5) of this also list in its Operations Instructions section. If the advisory opinion is not those occupations or fields of endeavor favorable to the petitioner, it must where it has been determined by the also set forth a specific statement of Service that no appropriate labor orga- facts which support the conclusion nization exists. reached in the opinion. (8) Approval and validity of petition— (v) Consultation requirements for P–3 in (i) Approval. The Director shall con- a culturally unique program. Consulta- sider all the evidence submitted and tion with an appropriate labor organi- such other evidence as he or she may zation is required for P–3 petitions in- independently require to assist in his volving aliens in culturally unique pro- or her adjudication. The Director shall grams. If the advisory opinion is favorable to the petitioner, it should evalu- notify the petitioner of the approval of ate the cultural uniqueness of the the petition on Form I–797, Notice of alien’s skills, state whether the events Action. The approval notice shall in- are cultural in nature, and state clude the alien beneficiary’s name and whether the event or activity is appro- classification and the petition’s period priate for P–3 classification. If the ad- of validity. visory opinion is not favorable to the (ii) Recording the validity of petitions. petitioner, it must also set forth a spe- Procedures for recording the validity cific statement of facts which support period of petitions are: the conclusion reached in the opinion. (A) If a new P petition is approved In lieu of the above, a labor organiza- before the date the petitioner indicates tion may submit a letter of no objec- the services will begin, the approved tion if it has no objection to the ap- petition and approval notice shall show proval of the petition. the actual dates requested by the peti- (vi) Consultation requirements for es- tioner as the validity period, not to ex- sential support aliens. Written consulta- ceed the limit specified in paragraph tion on petitions for P–1, P–2, or P–3 es- (p)(8)(iii) of this section or other Serv- sential support aliens must be made ice policy. with a labor organization with exper- (B) If a new P petition is approved tise in the skill area involved. If the advisory opinion provided by the labor after the date the petitioner indicates organization is favorable to the peti- the services will begin, the approved tioner, it must evaluate the alien’s es-

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petition and approval notice shall gen- (E) Essential support aliens. Petitions erally show a validity period commenc- for essential support personnel to P–1, ing with the date of approval and end- P–2, and P–3 aliens shall be valid for a ing with the date requested by the peti- period of time determined by the Di- tioner, not to exceed the limit specified rector to be necessary to complete the in paragraph (p)(8)(iii) of this section event, activity, or performance for or other Service policy. which the P–1, P–2, or P–3 alien is ad- (C) If the period of services requested mitted, not to exceed 1 year. by the petitioner exceeds the limit (9) Denial of petition—(i) Notice of in- specified in paragraph (p)(8)(iii) of this tent to deny. When an adverse decision section, the petition shall be approved is proposed on the basis of derogatory only up to the limit specified in that information of which the petitioner is paragraph. unaware, the Director shall notify the (iii) Validity. The approval period of a petitioner of the intent to deny the pe- P petition shall conform to the limits tition and the basis for the denial. The prescribed as follows: petitioner may inspect and rebut the (A) P–1 petition for athletes. An ap- evidence and will be granted a period of proved petition for an individual ath- 30 days from the date of the notice in lete classified under section which to do so. All relevant rebuttal 101(a)(15)(P)(i) of the Act shall be valid material will be considered in making for a period up to 5 years. An approved a final decision. petition for an athletic team classified (ii) Notice of denial. The petitioner under section 101(a)(15)(P)(i) of the Act shall be notified of the decision, the shall be valid for a period of time de- reasons for the denial, and the right to termined by the Director to complete appeal the denial under 8 CFR part 103. the competition or event for which the There is no appeal from a decision to alien team is being admitted, not to ex- deny an extension of stay to the alien ceed 1 year. or a change of nonimmigrant status. (B) P–1 petition for an entertainment (10) Revocation of approval of peti- group. An approved petition for an en- tion—(i) General. (A) The petitioner tertainment group classified under sec- shall immediately notify the Service of tion 101(a)(15)(P)(i) of the Act shall be any changes in the terms and condi- valid for a period of time determined tions of employment of a beneficiary by the Director to be necessary to com- which may affect eligibility under sec- plete the performance or event for tion 101(a)(15)(P) of the Act and para- which the group is being admitted, not graph (p) of this section. An amended to exceed 1 year. petition should be filed when the peti- (C) P–2 and P–3 petitions for artists or tioner continues to employ the bene- entertainers. An approved petition for ficiary. If the petitioner no longer em- an artist or entertainer under section ploys the beneficiary, the petitioner 101(a)(15)(P)(ii) or (iii) of the Act shall shall send a letter explaining the be valid for a period of time deter- change(s) to the Director who approved mined by the Director to be necessary the petition. to complete the event, activity, or per- (B) The Director may revoke a peti- formance for which the P–2 or P–3 alien tion at any time, even after the valid- is admitted, not to exceed 1 year. ity of the petition has expired. (D) Spouse and dependents. The spouse (ii) Automatic revocation. The ap- and unmarried minor children of a P–1, proval of an unexpired petition is auto- P–2, or P–3 alien beneficiary are enti- matically revoked if the petitioner, or tled to P–4 nonimmigrant classifica- the employer in a petition filed by an tion, subject to the same period of ad- agent, goes out of business, files a writ- mission and limitations as the alien ten withdrawal of the petition, or noti- beneficiary, if they are accompanying fies the Service that the beneficiary is or following to join the alien bene- no longer employed by the petitioner. ficiary in the United States. Neither (iii) Revocation on notice—(A) Grounds the spouse nor a child of the alien ben- for revocation. The Director shall send eficiary may accept employment un- to the petitioner a notice of intent to less he or she has been granted employ- revoke the petition in relevant part if ment authorization. he or she finds that:

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(1) The beneficiary is no longer em- tioner must also request a petition ex- ployed by the petitioner in the capac- tension. The extension dates shall be ity specified in the petition; the same for the petition and the bene- (2) The statement of facts contained ficiary’s stay. The beneficiary must be in the petition were not true and cor- physically present in the United States rect; at the time the extension of stay is (3) The petitioner violated the terms filed. Even though the requests to ex- or conditions of the approved petition; tend the petition and the alien’s stay (4) The petitioner violated require- are combined on the petition, the Di- ments of section 101(a)(15)(P) of the Act rector shall make a separate deter- or paragraph (p) of this section; or mination on each. If the alien leaves (5) The approval of the petition vio- the United States for business or per- lated paragraph (p) of this section or sonal reasons while the extension re- involved gross error. quests are pending, the petitioner may (B) Notice and decision. The notice of request the Director to cable notifica- intent to revoke shall contain a de- tion of approval of the petition exten- tailed statement of the grounds for the sion to the consular office abroad revocation and the time period allowed where the alien will apply for a visa. for the petitioner’s rebuttal. The peti- (ii) Extension periods—(A) P–1 individ- tioner may submit evidence in rebuttal ual athlete. An extension of stay for a within 30 days of the date of the notice. P–1 individual athlete and his or her The Director shall consider all relevant essential support personnel may be au- evidence presented in deciding whether thorized for a period up to 5 years for a to revoke the petition. total period of stay not to exceed 10 (11) Appeal of a denial or a revocation years. of a petition—(i) Denial. A denied peti- (B) Other P–1, P–2, and P–3 aliens. An tion may be appealed under 8 CFR part extension of stay may be authorized in 103. increments of 1 year for P–1 athletic (ii) Revocation. A petition that has teams, entertainment groups, aliens in been revoked on notice may be ap- reciprocal exchange programs, aliens pealed under 8 CFR part 103. Automatic in culturally unique programs, and revocations may not be appealed. their essential support personnel to (12) Admission. A beneficiary may be admitted to the United States for the continue or complete the same event or validity period of the petition, plus a activity for which they were admitted. period of up to 10 days before the valid- (15) Effect of approval of a permanent ity period begins and 10 days after the labor certification or filing of a preference validity period ends. The beneficiary petition on P classification. The approval may not work except during the valid- of a permanent labor certification or ity period of the petition. the filing of a preference petition for (13) Extension of visa petition validity. an alien shall not be a basis for deny- The petitioner shall file a request to ing a P petition, a request to extend extend the validity of the original peti- such a petition, or the alien’s admis- tion under section 101(a)(15)(P) of the sion, change of status, or extension of Act on Form I–129 in order to continue stay. The alien may legitimately come or complete the same activity or event to the United States for a temporary specified in the original petition. Sup- period as a P nonimmigrant and depart porting documents are not required un- voluntarily at the end of his or her au- less requested by the Director. A peti- thorized stay and, at the same time, tion extension may be filed only if the lawfully seek to become a permanent validity of the original petition has not resident of the United States. This pro- expired. vision does not include essential sup- (14) Extension of stay—(i) Extension port personnel. procedure. The petitioner shall request (16) Effect of a strike—(i) If the Sec- extension of the alien’s stay to con- retary of Labor certifies to the Com- tinue or complete the same event or missioner that a strike or other labor activity by filing Form I–129, accom- dispute involving a work stoppage of panied by a statement explaining the workers is in progress in the occupa- reasons for the extension. The petition at the place where the beneficiary

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is to be employed, and that the em- his or her authorized period of stay has ployment of the beneficiary would ad- expired, will be subject to deportation. versely affect the wages and working (17) Use of approval of notice, Form I– conditions of U.S. citizens and lawful 797. The Service has notify the peti- resident workers: tioner on Form I–797 whenever a visa (A) A petition to classify an alien as petition or an extension of a visa peti- a nonimmigrant as defined in section tion is approved under the P classifica- 101(a)(15)(P) of the Act shall be denied; tion. The beneficiary of a P petition or who does not require a nonimmigrant (B) If a petition has been approved, visa may present a copy of the ap- but the alien has not yet entered the proved notice at a Port-of-Entry to fa- United States, or has entered the Unit- cilitate entry into the United States. A ed States but has not commenced em- beneficiary who is required to present a ployment, the approval of the petition visa for admission, and whose visa ex- is automatically suspended, and the ap- pired before the date of his or her in- plication for admission of the basis of tended return, may use Form I–797 to the petition shall be denied. (ii) If there is a strike or other labor apply for a new or revalidated visa dur- dispute involving a work stoppage of ing the validity period of the petition. workers in progress, but such strike or The copy of Form I–797 shall be re- other labor dispute is not certified tained by the beneficiary and present under paragraph (p)(16)(i) of this sec- during the validity of the petition tion, the Commissioner shall not deny when reentering the United States to a petition or suspend an approved peti- resume the same employment with the tion. same petitioner. (iii) If the alien has already com- (18) Return transportation requirement. menced employment in the United In the case of an alien who enters the States under an approved petition and United States under section is participating in a strike or labor dis- 101(a)(15)(P) of the Act and whose em- pute involving a work stoppage of ployment terminates for reasons other workers, whether or not such strike or than voluntary resignation, the em- other labor dispute has been certified ployer whose offer of employment by the Secretary of Labor, the alien formed the basis of suh nonimmigrant shall not be deemed to be failing to status and the petitioner are jointly maintain his or her status solely on ac- and severally liable for the reasonable count of past, present, or future par- cost of return transporation of the ticipation in a strike or other labor alien abroad. For the purposes of this dispute involving a work stoppage of paragraph, the term ‘‘abroad’’ means workers but is subject to the following the alien’s last place of residence prior terms and conditions: to his or her entry into the United (A) The alien shall remain subject to States. all applicable provisions of the Immi- (q) International cultural exchange visi- gration and Nationality Act and regu- tor—(1) Definitions. As used in this sec- lations promulgated thereunder in the tion: same manner as all other P nonimmigrant aliens; Country of nationality means the (B) The status and authorized period country of which the participant was a of stay of such an alien is not modified national at the time of the petition or extended in any way by virtue of his seeking international cultural ex- or her participation in a strike or other change visitor status for him or her. labor dispute involving a work stop- Doing business means the regular, page of workers; and systematic, and continuous provision (C) Although participation by a P of goods and/or services (including lec- nonimmigrant alien in a strike or tures, seminars and other types of cul- other labor dispute involving a work tural programs) by a qualified em- stoppages of workers will not con- ployer which has employees, and does stitute a ground for deportation, an not include the mere presence of an alien who violates his or her status or agent or office of the qualifying em- who remains in the United States after ployer.

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Duration of program means the time present outside the United States for in which a qualified employer is con- the immediate prior year. Brief trips to ducting an approved cultural exchange the United States for pleasure or busi- program in the manner as established ness during the immediate prior year by the employer’s petition for program do not break the continuity of the one- approval, provided that the period of year foreign residency. time does not exceed 15 months. (3) International cultural exchange pro- International cultural exchange visitor gram—(i) General. A United States em- or cultural visitor means an alien who ployer shall petition the Attorney Gen- has a residence in a foreign country eral on Form I–129, Petition for a Non- which he or she has no intention of immigrant Worker, for approval of an abandoning, and who is coming tempo- international cultural exchange pro- rarily to the United States to take part gram which is designed to provide an in an international cultural exchange opportunity for the American public to program approved by the Attorney learn about foreign cultures. The Unit- General. ed States employer must simulta- Petitioner means the employer or its neously petition on the same Form I– designated agent who has been em- 129 for the authorization for one or ployed by the qualified employer on a more individually identified non- permanent basis in an executive or immigrant aliens to be admitted in Q managerial capacity. The designated status. These aliens are to be admitted agent must be a United States citizen, to engage in employment or training of an alien lawfully admitted for perma- which the essential element is the nent residence, or an alien provided sharing with the American public, or a temporary residence status under sec- segment of the public sharing a com- tions 210 or 245A of the Act. mon cultural interest, of the culture of Qualified employer means a United the alien’s country of nationality. The States or foreign firm, corporation, cultural visitor’s eligibility for admis- non-profit organization, or other legal sion will be considered only if the entity (including its U.S. branches, international cultural exchange pro- subsidiaries, affiliates, and franchises) gram is approved. which administers an international cultural exchange program designated (ii) Program validity. Each petition for by the Attorney General in accordance an international cultural exchange pro- with the provisions of section gram will be approved for the duration 101(a)(15)(Q) of the Act. of the program, which may not exceed (2) Admission of cultural visitor—(i) 15 months, plus 30 days to allow time General. A nonimmigrant alien may be for the participants to make travel ar- authorized to enter the United States rangements. Subsequent to the ap- as a participant in an international proval of the initial petition, a new pe- cultural exchange program approved by tition must be filed each time the the Attorney General for the purpose qualified employer wishes to bring in of providing practical training, em- additional cultural visitors. A qualified ployment, and the sharing of the his- employer may replace or substitute a tory, culture, and traditions of the participant named on a previously ap- country of the alien’s nationality. The proved petition for the remainder of period of admission is the duration of the program in accordance with para- the approved international cultural ex- graph (q)(6) of this section. The re- change program or fifteen (15) months, placement or substituting alien may be whichever is shorter. A nonimmigrant admitted in Q status until the expira- alien admitted under this provision is tion date of the approved petition. classifiable as a cultural visitor in Q (iii) Requirements for program ap- status. proval. An international cultural ex- (ii) Limitation on admission. Any alien change program must meet all of the who has been admitted into the United following requirements: States as a cultural visitor under sec- (A) Accessibility to the public. The tion 101(a)(15)(Q) of the Act shall not be international cultural exchange pro- readmittted in Q status unless the gram must take place in a school, mu- alien has resided and been physically seum, business or other establishment

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where the American public, or a seg- pleted Form I–129 appropriate evidence ment of the public sharing a common that the employer: cultural interest, is exposed to aspects (A) Maintains an established inter- of a foreign culture as part of a struc- national cultural exchange program in tured program. Activities that take accordance with the requirements set place in a private home or an isolated forth in paragraph (q)(3) of this section; business setting to which the American (B) Has designated a qualified em- public, or a segment of the public shar- ployee as a representative who will be ing a common cultural interest, does responsible for administering the inter- not have direct access do not qualify. national cultural exchange program (B) Cultural component. The inter- and who will serve as liaison with the national cultural exchange program Immigration and Naturalization Serv- must have a cultural component which ice; is an essential and integral part of the (C) Is actively doing business in the cultural visitor’s employment or train- United States; ing. The cultural component must be (D) Will offer the alien(s) wages and designed, on the whole, to exhibit or working conditions comparable to explain the attitude, customs, history, those accorded local domestic workers heritage, philosophy, or traditions of similarly employed; and the cultural visitor’s country of nationality. A cultural component may (E) Has the financial ability to remu- include structured instructional activi- nerate the participant(s). ties such as seminars, courses, lecture (ii) Certification by petitioner. (A) The series, or language camps. petitioner must give the date of birth, (C) Work component. The cultural country of nationality, level of edu- visitor’s employment or training in the cation, position title, and a brief job United States may not be independent description for each cultural visitor in- of the cultural component of the inter- cluded in the petition. The petitioner national cultural exchange program. must verify and certify that the pro- The work component must serve as the spective participants are qualified to vehicle to achieve the objectives of the perform the service or labor, or receive cultural component. The sharing of the the type of training, described in the culture of the cultural visitor’s coun- petition. try of nationality must result from his (B) The petitioner must report the or her employment or training with cultural visitors’ wages and certify the qualified employer in the United that such cultural exchange visitors States. are offered wages and working condi- (iv) Requirements for cultural visitors. tions comparable to those accorded to To be eligible for cultural visitor sta- local domestic workers similarly em- tus, an alien must be a bona fide non- ployed. immigrant who: (iii) Supporting documentation as (A) Is at least 18 years of age at the prescribed in paragraphs (q)(4)(i) and time the petition is filed; (q)(4)(ii) of this section must accom- (B) Is qualified to perform the service pany a petition filed on Form I–129 in or labor or receive the type of training all cases except where the employer stated in the petition; files multiple petitions in the same cal- (C) Has the ability to communicate endar year. When petitioning to repeat effectively about the cultural at- a previously approved cultural ex- tributes of his or her country of na- change program, a copy of the initial tionality to the American public; and program approval notice may be sub- (D) Has resided and been physically mitted in lieu of the documentation represent outside of the United States for quired under paragraph (q)(4)(i) of this the immediate prior year, if he or she section. The Service will request addi- was previously admitted as a cultural tional documentation only when clari- visitor. fication is needed. (4) Supporting documentation—(i) Doc- (5) Filing of petitions—(i) General. A umentation by the employer. To establish United States employer seeking to eligibility as a qualified employer, the bring in cultural visitors must file a petitioner must submit with the competition on Form I-129, Petition for a

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Nonimmigrant Worker, with the appli- (v) Change of employers. If a cultural cable fee, along with appropriate docu- visitor is in the United States under mentation. The petition and accom- section 101(a)(15)(Q) of the Act and de- panying documentation should be filed cides to change employers, the new em- with either the service center having ployer must file a petition. However, jurisdiction over the employer’s head- the total period of time the cultural quarters or the service center having visitor may stay in the United States jurisdiction over the area where the remains limited to fifteen (15) months. cultural visitors will perform services (6) Substitution or replacement of par- or labor or will receive training. A new ticipants. The petitioner may substitute petition on Form I–129, with the appli- for or replace a person named on a pre- cable fee, must be filed with the appro- viously approved petition for the re- priate service center each time a quali- mainder of the program without filing fied employer wants to bring in addi- a new Form I–129. The substituting cul- tional cultural visitors. Each person tural visitor must meet the qualifica- named on an approved petition will be tion requirements prescribed in para- admitted only for the duration of the graph (q)(3)(iv) of this section. To re- approved program. Replacement or quest substitution or replacement, the substitution may be made for any per- petitioner shall, by letter, notify the son named on an approved petition as consular office at which the alien will provided in paragraph (q)(6) of this sec- apply for a visa or, in the case of visa- tion, but only for the remainder of the exempt aliens, the Service office at the approved program. port of entry where the alien will apply (ii) Petition for multiple participants. for admission. A copy of the petition’s The petitioner may include more than approval notice must be included with one participant on the petition. The pe- the letter. The petitioner must state titioner shall include the name, date of the date of birth, country of national- birth, nationality, and other identify- ity, level of education, and position ing information required on the peti- title of each prospective cultural visi- tion for each participant. The peti- tor and must certify that each is quali- tioner must also indicate the United fied to perform the service or labor or States consulate at which each partici- receive the type of training described pant will apply for a Q visa. For par- in the approved petition. The peti- ticipants who are visa-exempt under 8 tioner must also indicate each cultural CFR 212.1(a), the petitioner must indi- visitor’s wages and certify that the cul- cate the port of entry at which each tural visitor is offered wages and work- participant will apply for admission to ing conditions comparable to those ac- the United States. corded to local domestic workers in ac- (iii) Service, labor, or training in more cordance with paragraph (q)(11)(ii) of than one location. A petition which re- this section. quires the cultural visitor to engage in (7) Approval of petition—(i) The direc- employment or training (with the same tor shall consider all the evidence sub- employer) in more than one location mitted and request other evidence as must include an itinerary with the he or she may deem necessary. dates and locations of the services, (ii) The director shall notify the peti- labor, or training. tioner and the appropriate United (iv) Services, labor, or training for more States consulate(s) of the approval of a than one employer. If the cultural visi- petition. For participants who are visa- tor will perform services or labor for, exempt under 8 CFR 212.1(a), the direc- or receive training from, more than tor shall give notice of the approval to one employer, each employer must file the director of the port of entry at a separate petition with the service which each such participant will apply center having jurisdiction over the for admission to the United States. The area where the alien will perform serv- notice of approval shall include the ices or labor, or receive training. The name of the cultural visitors, their cultural visitor may work part-time classification, and the petition’s period for multiple employers provided that of validity. each employer has an approved peti- (iii) An approved petition for an alien tion for the alien. classified under section 101(a)(15)(Q) of

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the Act is valid for the length of the notice. The director shall consider all approved program or fifteen (15) relevant evidence presented in deciding months, whichever is shorter. whether to revoke the petition in (iv) A petition shall not be approved whole or in part. If the petition is re- for an alien who has an aggregate of voked in part, the remainder of the pe- fifteen (15) months in the United States tition shall remain approved and a re- under section 101(a)(15)(Q) of the Act, vised approval notice shall be sent to unless the alien has resided and been the petitioner with the revocation no- physically present outside the United tice. States for the immediate prior year. (v) Appeal of a revocation of a petition. (8) Denial of the petition—(i) Notice of Revocation with notice of a petition in denial. The petitioner shall be notified whole or in part may be appealed to of the denial of a petition, the reasons the Associate Commissioner for Exami- for the denial, and the right to appeal nations under part 103 of this chapter. the denial under part 103 of this chap- Automatic revocation may not be ap- ter. pealed. (ii) Multiple participants. A petition (10) Extension of stay. An alien’s total for multiple cultural visitors may be period of stay in the United States denied in whole or in part. under section 101(a)(15)(Q) of the Act (9) Revocation of approval of petition— cannot exceed fifteen (15) months. The (i) General. The petitioner shall imme- authorized stay of a cultural visitor diately notify the appropriate Service may be extended within the 15-month center of any changes in the employ- limit if he or she is the beneficiary of ment of a participant which would af- a new petition filed in accordance with fect eligibility under paragraph (q) of paragraph (q)(3) of this section. The this section. new petition, if filed by the same em- (ii) Automatic revocation. The ap- ployer, should include a copy of the proval of any petition is automatically previous petition’s approval notice and revoked if the qualifying employer a letter from the petitioner indicating goes out of business, files a written any terms and conditions of the pre- withdrawal of the petition, or termi- vious petition that have changed. nates the approved international cul- (11) Employment provisions—(i) Gen- tural exchange program prior to its ex- eral. An alien classified under section piration date. 101(a)(15)(Q) of the Act may be em- (iii) Revocation on notice. The director ployed only by the qualified employer shall send the petitioner a notice of in- through which the alien attained Q tent to revoke the petition in whole or nonimmigrant status. An alien in this in part if he or she finds that: class is not required to apply for an (A) The cultural visitor is no longer employment authorization document. employed by the petitioner in the ca- Employment outside the specific pro- pacity specified in the petition, or if gram violates the terms of the alien’s the cultural visitor is no longer receiv- Q nonimmigrant status within the ing training as specified in the peti- meaning of section 241(a)(1)(C)(i) of the tion; Act. (B) The statement of facts contained (ii) Wages and working conditions. The in the petition was not true and cor- wages and working conditions of a cul- rect; tural visitor must be comparable to (C) The petitioner violated the terms those accorded to domestic workers and conditions of the approved peti- similarly employed in the geographical tion; or area of the alien’s employment. The (D) The Service approved the petition employer must certify on the petition in error. that such conditions are met as in ac- (iv) Notice and decision. The notice of cordance with paragraph (q)(4)(iii)(B) intent to revoke shall contain a de- of this section. tailed statement of the grounds for the (r) Religious workers—(1) General. revocation and the period of time al- Under section 101(a)(15)(R) of the Act, lowed for the petitioner’s rebuttal. The an alien who, for at least the two (2) petitioner may submit evidence in re- years immediately preceding the time buttal within 30 days of receipt of the of application for admission, has been a

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member of a religious denomination ernment, a creed or statement of faith, having a bona fide nonprofit religious some form of worship, a formal or in- organization in the United States, may formal code of doctrine and discipline, be admitted temporarily to the United religious services and ceremonies, es- States to carry on the activities of a tablished places of religious worship, religious worker for a period not to ex- and religious congregations, or com- ceed five (5) years. The alien must be parable indicia of a bona fide religious coming to the United States for one of denomination. For the purposes of this the following purposes: solely to carry definition, an interdenominational re- on the vocation of a minister of the religious organization which is exempt ligious denomination; to work for the from taxation pursuant to section religious organization at the request of 501(c)(3) of the Internal Revenue Code the organization in a professional ca- of 1986 will be treated as a religious de- pacity; or to work for the organization, nomination. or a bona fide organization which is af- Religious occupation means an activ- filiated with the religious denomina- ity which relates to a traditional reli- tion, at the request of the organization gious function. Examples of persons in in a religious vocation or occupation. religious occupations include, but are (2) Definitions. As used in this sec- not limited to, liturgical workers, reli- tion: gious instructors, religious conselors, Bona fide nonprofit religious organiza- cantors, catechists, workers in reli- tion in the United States means an orga- gious hospitals or religious health care nization exempt from taxation as de- facilities, missionaries, religious trans- scribed in section 501(c)(3) of the Inter- lators, or religious broadcasters. This nal Revenue Code of 1986 as it relates group does not include janitors, main- to religious organizations, or one that tenance workers, clerks, fund raisers, has never sought such exemption but or persons involved solely in the solici- establishes to the satisfaction of the tation of donations. Service that it would be eligible there- Religious vocation means a calling to for if it had applied for tax exempt sta- religious life evidenced by the dem- tus. onstration of commitment practiced in Bona fide organization which is affili- the religious denomination, such as the ated with the religious denomination taking of vows. Examples of persons means an organization which is both with a religious vocation include, but closely associated with the religious are not limited to, nuns, monks, and denomination and exempt from tax- religious brothers and sisters. ation as described in section 501(c)(3) of (3) Initial evidence. An alien seeking the Internal Revenue Code of 1986 as it classification as a nonimmigrant reli- relates to religious organizations. gious worker shall present to a United Minister means an individual duly au- States consular officer, or, if visa ex- thorized by a recognized religious de- empt, to an immigration officer at a nomination to conduct religious wor- United States port of entry, docu- ship and to perform other duties usu- mentation which establishes to the sat- ally performed by authorized members isfaction of the consular or immigra- of the clergy of that religion. In all tion officer that the alien will be pro- cases, there must be a reasonable con- viding services to a bona fide nonprofit nection between the activities per- religious organization in the United formed and the religious calling of the States or to an affiliated religious or- minister. The term does not include a ganization as defined in paragraph lay preacher not authorized to perform (r)(2) of this section, and that the alien such duties. meets the criteria to perform such Professional capacity means an activ- services. If the alien is in the United ity in a religious vocation or occupa- States in another valid nonimmigrant tion for which the minimum of a Unit- classification and desires to change ed States baccalaureate degree or a nonimmigrant status to classification foreign equivalent degree is required. as a nonimmigrant religious worker, Religious denomination means a reli- this documentation should be pre- gious group or community of believers sented with an application for change having some form of ecclesiastical gov- of status (Form I–129, Petition for a

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Nonimmigrant Worker). The docu- its foreign equivalent and that at least mentation shall consist of: such a degree is required for entry into (i) Evidence that the organization the religious profession; or qualifies as a non-profit organization, (3) That, if the alien is to work in an- in the form of either: other religious vocation or occupation, (A) Documentation showing that it is he or she is qualified in the religious exempt from taxation in accordance vocation or occupation. Evidence of with section 501(c)(3) of the Internal such qualifications may include, but Revenue Code of 1986 as it relates to re- need not be limited to, evidence estab- ligious organizations (in appropriate lishing that the alien is a monk, nun, cases, evidence of the organization’s or religious brother or that the type of assets and methods of operation and work to be done relates to a traditional the organization’s papers of incorpora- religious function; tion under applicable State law may be (D) The arrangements made, if any, requested); or for remuneration for services to be ren- (B) Such documentation as is re- dered by the alien, including the quired by the Internal Revenue Service amount and source of any salary, a de- to establish eligibility for exemption scription of any other types of remu- under section 501(c)(3) of the Internal neration to be received (including Revenue Code of 1986 as it relates to re- housing, food, clothing, and any other ligious organizations; and benefits to which a monetary value (ii) A letter from an authorized offi- may be affixed), and a statement cial of the specific organizational unit whether such remuneration shall be in of the religious organization which will exchange for services rendered; be employing the alien or engaging the (E) The name and location of the spe- alien’s services in the United States. If cific organizational unit of the reli- the alien is to be employed, this letter gious organization for which the alien should come from the organizational will be providing services within the unit that will maintain the alien’s United States; and Form I–9, Employment Eligibility Ver- (F) If the alien is to work in a non- ification, that is, the organizational ministerial and nonprofessional capac- unit that is either paying the alien a ity for a bona fide organization which salary or otherwise remunerating the is affiliated with a religious denomina- alien in exchange for services rendered. tion, the existence of the affiliation; This letter must establish: and (A) That, if the alien’s religious (iii) Any appropriate additional evi- membership was maintained, in whole dence which the examining officer may or in part, outside the United States, request relating to the religious orga- the foreign and United States religious nization, the alien, or the affiliated or- organizations belong to the same reli- ganization. Such additional docu- gious denomination; mentation may include, but need not (B) That, immediately prior to the be limited to, diplomas, degrees, finan- application for the nonimmigrant visa cial statements, or certificates of ordi- or application for admission to the nation. No prior petition, labor certifi- United States, the alien has the re- cation, or prior approval shall be required two (2) years of membership in quired. the religious denomination; (4) Initial admission. The initial ad- (C) As appropriate: mission of a religious worker, spouse, (1) That, if the alien is a minister, he and unmarried children under twenty- or she is authorized to conduct reli- one years of age shall not exceed three gious worship for that denomination (3) years. A Form I–94, Arrival-Depar- and to perform other duties usually ture Record, shall be provided to every performed by authorized members of alien who qualifies for admission as an the clergy of that denomination, in- R nonimmigrant. The Form I–94 for the cluding a detailed description of those religious worker shall be endorsed with duties; the name and location of the specific (2) That, if the alien is a religious organizational unit of the religious or- professional, he or she has at least a ganization for which the alien will be United States baccalaureate degree or providing services within the United

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States. The admission symbol for the dren under twenty-one years of age are religious worker shall be R–1; the ad- entitled to the same nonimmigrant mission symbol for the worker’s spouse classification and length of stay as the and childen shall be R–2. religious worker, if the religious work- (5) Extension of stay. The organiza- er will be employed and residing pri- tional unit of the religious organiza- marily in the United States, and if the tion employing the nonimmigrant reli- spouse and unmarried minor children gious worker admitted under this sec- are accompanying or following to join tion shall use Form I–129, Petition for the religious worker in the United a Nonimmigrant Worker, along with States. Neither the spouse nor any the appropriate fee, to extend the stay child may accept employment while in of the worker. The petition shall be the United States in R–2 nonimmigrant filed at the Service Center having ju- status. risdiction over the place of employment. An extension may be authorized (s) NATO aliens—(1) General. Aliens for a period of up to two (2) years. The classified as NATO–1 through NATO–4 worker’s total period of stay may not are members of the armed forces of a exceed five (5) years. The petition must country signatory to Article III of the be accompanied by a letter from an au- Status of Forces Agreement (NATO). thorized official of the organizational They are normally exempt from inspec- unit confirming the worker’s continu- tion under 8 CFR 235.1(c). Aliens classi- ing eligibility for classification as an fied as NATO–5 or –6 are civilian em- R–1 nonimmigrant. ployees of the armed forces of a NATO (6) Change of employers. A different or member and may be authorized admis- additional organizational unit of the sion for the duration of employment religious denomination seeking to em- and assignment with the NATO mem- ploy or engage the services of a reli- ber in the United States. Aliens classi- gious worker admitted under this sec- fied as NATO–7 who are employed by tion shall file Form I–129 with the ap- NATO–1 through NATO–4 aliens may be propriate fee. The petition shall be admitted for duration of status; if em- filed with the Service Center having ju- ployed by NATO–5 or –6 aliens, admis- risdiction over the place of employ- sion may be authorized for not more ment. The petition must be accom- than two years. panied by evidence establishing that (2) Extensions of Stay. Any alien clas- the alien will continue to qualify as a sified as a NATO–7 as the employee of religious worker under this section. a NATO–5 or –6 may be granted exten- Any unauthorized change to a new reli- sions of stay in increments of not more gious organizational unit will con- than one year. stitute a failure to maintain status (3) Employment. The dependents of an within the meaning of section alien classified NATO–1 through 241(a)(1)(C)(i) of the Act. NATO–7 may request authorization for (7) Limitation on stay. An alien who employment if the state of their na- has spent five (5) years in the United tionality has a reciprocal employment States under section 101(a)(15)(R) of the agreement with the Department of Act may not be readmitted to the Unit- State. The names of the foreign states ed States under the R visa classifica- which have reciprocal employment tion unless the alien has resided and agreements are available from the De- been physically present outside the partment of State, Office of Consular United States for the immediate prior Affairs, and the District Offices of the year, except for brief visits for business Service. or pleasure. Such visits do not end the (t) Alien witnesses and informants—(1) period during which an alien is consid- Alien witness or informant in criminal ered to have resided and been phys- matter. An alien may be classified as an ically present outside the United S–5 alien witness or informant under States, but time spent during such vis- the provisions of section 101(a)(15)(S)(i) its does not count toward the require- of the Act if, in the exercise of discre- ment of this paragraph. tion pursuant to an application on (8) Spouse and children. The religious Form I–854 by an interested federal or worker’s spouse and unmarried chil- state law enforcement authority

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(‘‘LEA’’), it is determined by the Com- Form I–854 in order to qualify for S missioner that the alien: nonimmigrant classification. Family (i) Possesses critical reliable infor- members not identified on the Form I– mation concerning a criminal organi- 854 application will not be eligible for S zation or enterprise; nonimmigrant classification. (ii) Is willing to supply, or has sup- (4) Request for S nonimmigrant classi- plied, such information to federal or fication. An application on Form I–854, state LEA; and requesting S nonimmigrant classifica- (iii) Is essential to the success of an tion for a witness or informant, may authorized criminal investigation or only be filed by a federal or state LEA the successful prosecution of an indi- (which shall include a federal or state vidual involved in the criminal organi- court or a United States Attorney’s Of- zation or enterprise. fice) directly in need of the informa- (2) Alien witness or informant in tion to be provided by the alien witness counterterrorism matter. An alien may be or informant. The completed applica- classified as an S–6 alien tion is filed with the Assistant Attor- counterterrorism witness or informant ney General, Criminal Division, De- under the provisions of section partment of Justice, who will forward 101(a)(15)(S)(ii) of the Act if it is deter- only properly certified applications mined by the Secretary of State and that fall within the numerical limita- the Commissioner acting jointly, in the tion to the Commissioner, Immigration exercise of their discretion, pursuant and Naturalization Service, for ap- to an application on Form I–854 by an proval, pursuant to the following proc- interested federal LEA, that the alien: ess. (i) Possesses critical reliable information concerning a terrorist organi- (i) Filing request. For an alien to qual- zation, enterprise, or operation; ify for status as an S nonimmigrant, S (ii) Is willing to supply or has sup- nonimmigrant classification must be plied such information to a federal requested by an LEA. The LEA shall LEA; recommend an alien for S non- (iii) Is in danger or has been placed in immigrant classification by: Complet- danger as a result of providing such in- ing Form I–854, with all necessary en- formation; and dorsements and attachments, in ac- (iv) Is eligible to receive a reward cordance with the instructions on, or under section 36(a) of the State Depart- attached to, that form, and agreeing, ment Basic Authorities Act of 1956, 22 as a condition of status, that no prom- U.S.C. 2708(a). ises may be, have been, or will be made (3) Spouse, married and unmarried sons by the LEA that the alien will or may and daughters, and parents of alien wit- remain in the United States in S or ness or informant in criminal or any other nonimmigrant classification counterterrorism matter. An alien spouse, or parole, adjust status to that of law- married or unmarried son or daughter, ful permanent resident, or otherwise or parent of an alien witness or inform- attempt to remain beyond a 3-year pe- ant may be granted derivative S classi- riod other than by the means author- fication (S–7) when accompanying, or ized by section 101(a)(15)(S) of the Act. following to join, the alien witness or The alien, including any derivative informant if, in the exercise of discre- beneficiary who is 18 years or older, tion by, with respect to paragraph shall sign a statement, that is part of (t)(1) of this section, the Commis- or affixed to Form I–854, acknowledg- sioner, or, with respect to paragraph ing awareness that he or she is re- (t)(2) of this section, the Secretary of stricted by the terms of S non- State and the Commissioner acting immigrant classification to the specific jointly, consider it to be appropriate. A terms of section 101(a)(15)(S) of the Act nonimmigrant in such derivative S–7 as the exclusive means by which he or classification shall be subject to the she may remain permanently in the same period of admission, limitations, United States. and restrictions as the alien witness or (A) District director referral. Any dis- informant and must be identified by trict director or Service officer who re- the requesting LEA on the application ceives a request by an alien, an eligible

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LEA, or other entity seeking S non- fication on Form I–854, with all re- immigrant classification shall advise quired attachments, the Assistant At- the requestor of the process and the re- torney General, Criminal Division, quirements for applying for S non- shall ensure that all information relat- immigrant classification. Eligible ing to the basis of the application, the LEAs seeking S nonimmigrant classi- need for the witness or informant, and fication shall be referred to the Com- grounds of excludability under section missioner. 212 of the Act has been provided to the (B) United States Attorney certification. Service on Form I–854, and shall con- The United States Attorney with juris- sider the negative and favorable factors diction over a prosecution or investiga- warranting an exercise of discretion on tion that forms the basis for a request the alien’s behalf. No application may for S nonimmigrant classification be acted on by the Assistant Attorney must certify and endorse the applica- General unless the eligible LEA mak- tion on Form I–854 and agree that no ing the request has proceeded in ac- promises may be, have been, or will be cordance with the instructions on, or made that the alien will or may remain attached to, Form I–854 and agreed to in the United States in S or any other all provisions therein. nonimmigrant classification or parole, (B) Advisory panel. Where necessary adjust status to lawful permanent resi- according to procedures established by dent, or attempt to remain beyond the the Assistant Attorney General, Crimi- authorized period of admission. nal Division, an advisory panel, com- (C) LEA certification. LEA certifi- posed of representatives of the Service, cations on Form I–854 must be made at Marshals Service, Federal Bureau of the seat-of-government level, if federal, Investigation, Drug Enforcement Ad- or the highest level of the state LEA ministration, Criminal Division, and involved in the matter. With respect to the Department of State, and those the alien for whom S nonimmigrant representatives of other LEAs, includ- classification is sought, the LEA shall ing state and federal courts designated provide evidence in the form of attach- by the Attorney General, will review ments establishing the nature of the the completed application and submit alien’s cooperation with the govern- a recommendation to the Assistant At- ment, the need for the alien’s presence torney General, Criminal Division, rein the United States, all conduct or garding requests for S nonimmigrant conditions which may constitute a classification. The function of this ad- ground or grounds of excludability, and visory panel is to prioritize cases in all factors and considerations warrant- light of the numerical limitation in ing a favorable exercise of discre- order to determine which cases will be tionary waiver authority by the Attor- forwarded to the Commissioner. ney General on the alien’s behalf. The attachments submitted with a request (C) Assistant Attorney General certifi- for S nonimmigrant classification may cation. The certification of the Assist- be in the form of affidavits, state- ant Attorney General, Criminal Divi- ments, memoranda, or similar docu- sion, to the Commissioner recommend- mentation. The LEA shall review Form ing approval of the application for S I–854 for accuracy and ensure the alien nonimmigrant classification shall con- understands the certifications made on tain the following: Form I–854. (1) All information and attachments (D) Filing procedure. Upon completion that may constitute, or relate to, a of Form I–854, the LEA shall forward ground or grounds of excludability the form and all required attachments under section 212(a) of the Act; to the Assistant Attorney General, (2) Each section of law under which Criminal Division, United States De- the alien appears to be inadmissible; partment of Justice, at the address (3) The reasons that waiver(s) of in- listed on the form. admissibility are considered to be jus- (ii) Assistant Attorney General, Crimi- tifiable and in the national interest; nal Division review—(A) Review of infor- (4) A detailed statement that the mation. Upon receipt of a complete ap- alien is eligible for S nonimmigrant plication for S nonimmigrant classi- classification, explaining the nature of

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the alien’s cooperation with the gov- deny an application for S non- ernment and the government’s need for immigrant classification on Form I– the alien’s presence in the United 854, the Assistant Attorney General, States; Criminal Division, and the relevant (5) The intended date of arrival; LEA shall be notified in writing to that (6) The length of the proposed stay in effect. The Assistant Attorney General, the United States; Criminal Division, shall concur in or (7) The purpose of the proposed stay; object to that decision. Unless the As- and sistant Attorney General, Criminal Di- (8) A statement that the application vision, objects within 7 days, he or she falls within the statutorily specified shall be deemed to have concurred in numerical limitation. the decision. In the event of an objec- (D) Submission of certified requests for tion by the Assistant Attorney Gen- S nonimmigrant classification to Service. eral, Criminal Division, the matter will (1) The Assistant Attorney General, be expeditiously referred to the Deputy Criminal Division, shall forward to the Attorney General for a final resolution. Commissioner only qualified applica- In no circumstances shall the alien or tions for S–5 nonimmigrant classifica- the relevant LEA have a right of ap- tion that have been certified in accord- peal from any decision to deny. ance with the provisions of this para- (6) Submission of requests for S non- graph and that fall within the annual immigrant visa classification to Secretary numerical limitation. of State. No request for S non- (2) The Assistant Attorney General immigrant visa classification may be Criminal Division, shall forward to the presented to the Secretary of State un- Commissioner applications for S–6 non- less it is approved and forwarded by the immigrant classification that have Commissioner. been certified in accordance with the (7) Conditions of status. An alien wit- provisions of this paragraph, certified ness or informant is responsible for by the Secretary of State or eligibility certifying and fulfilling the terms and for S–6 classification, and that fall conditions specified on Form I–854 as a within the annual numerical limita- condition of status. The LEA that as- tion. sumes responsibility for the S non- (5) Decision on application. (i) The At- immigrant must: torney General’s authority to waive grounds of excludability pursuant to (i) Ensure that the alien: section 212 of the Act is delegated to (A) Reports quarterly to the LEA on the Commissioner and shall be exer- his or her whereabouts and activities, cised with regard to S nonimmigrant and as otherwise specified on Form I– classification only upon the certifi- 854 or pursuant to the terms of his or cation of the Assistant Attorney Gen- her S nonimmigrant classification; eral, Criminal Division. Such certifi- (B) Notifies the LEA of any change of cation is nonreviewable as to the mat- home or work address and phone num- ter’s significance, importance, and/or bers or any travel plans; worthwhileness to law enforcement. (C) Abides by the law and all speci- The Commissioner shall make the final fied terms, limitations, or restrictions decision to approve or deny a request on the visa, Form I–854, or any waivers for S nonimmigrant classification cer- pursuant to classification; and tified by the Assistant Attorney Gen- (D) Cooperates with the responsible eral, Criminal Division. LEA in accordance with the terms of (ii) Decision to approve application. his or her classification and any re- Upon approval of the application on strictions on Form I–854; Form I–854, the Commissioner shall no- (ii) Provide the Assistant Attorney tify the Assistant Attorney General, General, Criminal Division, with the Criminal Division, the Secretary of name of the control agent on an ongo- State, and Service officers as appro- ing basis and provide a quarterly re- priate. Admission shall be authorized port indicating the whereabouts, ac- for a period not to exceed 3 years. tivities, and any other control informa- (iii) Decision to deny application. In tion required on Form I–854 or by the the event the Commissioner decides to Assistant Attorney General;

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(iii) Report immediately to the Serv- criminal offense punishable by a term ice any failure on the alien’s part to: of imprisonment of 1 year or more, is (A) Report quarterly; otherwise rendered deportable, or it is (B) Cooperate with the LEA; otherwise appropriate or in the public (C) Comply with the terms and condi- interest to do so, the Commissioner tions of the specific S nonimmigrant shall proceed to deport an alien pursu- classification; or ant to the terms of 8 CFR 242.26. In the (D) Refrain from criminal activity event the Commissioner decides to de- that may render the alien deportable, port an alien witness or informant in S which information shall also be for- nonimmigrant classification, the As- warded to the Assistant Attorney Gen- sistant Attorney General, Criminal Di- eral, Criminal Division; and vision, and the relevant LEA shall be (iv) Report annually to the Assistant notified in writing to that effect. The Attorney General, Criminal Division, Assistant Attorney General, Criminal on whether the alien’s S nonimmigrant Division, shall concur in or object to classification and cooperation resulted that decision. Unless the Assistant At- in either: torney General, Criminal Division, ob- (A) A successful criminal prosecution jects within 7 days, he or she shall be or investigation or the failure to deemed to have concurred in the deci- produce a successful resolution of the sion. In the event of an objection by matter; or the Assistant Attorney General, Crimi- (B) The prevention or frustration of nal Division, the matter will be expedi- terrorist acts or the failure to prevent tiously referred to the Deputy Attor- such acts. ney General for a final resolution. In (v) Assist the alien in his or her ap- no circumstances shall the alien or the plication to the Service for employ- relevant LEA have a right of appeal ment authorization. from any decision to deport. (8) Annual report. The Assistant At- (12) Change of classification. (i) An torney General, Criminal Division, in alien in S nonimmigrant classification consultation with the Commissioner, is prohibited from changing to any shall compile the statutorily mandated other nonimmigrant classification. annual report to the Committee on the (ii) An LEA may request that any Judiciary of the House of Representa- alien lawfully admitted to the United tives and the Committee on the Judici- States and maintaining status in ac- ary of the Senate. cordance with the provisions of § 248.1 (9) Admission. The responsible LEA of this chapter, except for those aliens will coordinate the admission of an enumerated in 8 CFR 248.2, have his or alien in S nonimmigrant classification her nonimmigrant classification with the Commissioner as to the date, changed to that of an alien classified time, place, and manner of the alien’s pursuant to section 101(a)(15)(S) of the arrival. Act as set forth in 8 CFR 248.3(h). (10) Employment. An alien classified (Title VI of the Health Professions Edu- under section 101(a)(15)(S) of the Act cational Assistance Act of 1976 (Pub. L. 94– may apply for employment authoriza- 484; 90 Stat. 2303); secs. 103 and 214, Immigra- tion by filing Form I–765, Application tion and Nationality Act (8 U.S.C. 1103 and for Employment Authorization, with 1184)) fee, in accordance with the instruc- [38 FR 35425, Dec. 28, 1973] tions on, or attached to, that form pur- EDITORIAL NOTE: For FEDERAL REGISTER ci- suant to § 274a.12(c)(21) of this chapter. tations affecting § 214.2, see the List of CFR (11) Failure to maintain status. An Sections Affected in the Finding Aids sec- alien classified under section tion in this volume. 101(a)(15)(S) of the Act shall abide by all the terms and conditions of his or § 214.3 Petitions for approval of her S nonimmigrant classification im- schools. posed by the Attorney General. If the (a) Filing petition—(1) General. A terms and conditions of S non- school or school system seeking ap- immigrant classification will not be or proval for attendance by nonimmigrant have not been met, or have been vio- students under sections 101(a)(15)(F)(i) lated, the alien is convicted of any or 101 (a)(15)(M)(i) of the Act, or both,

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shall file a petition on Form I–17 with instruction in the liberal arts, fine the district director having jurisdic- arts, language, religion, or the profes- tion over the place in which the school sions and vocational or technical train- or school system is located. Separate ing. In that case, a student whose pri- petitions are required for different mary intent is to pursue studies in lib- schools in the same school system lo- eral arts, fine arts, language, religion, cated within the jurisdiction of dif- or the professions at the school is clas- ferent district directors. A petition by sified as a nonimmigrant under section a school system must specifically iden- 101(a)(15)(F)(i) of the Act. A student tify by name and address those schools whose primary intent is to pursue vo- included in the petition. The petition cational or technical training at the must also state whether the school or school is classified as a nonimmigrant school system is seeking approval for under section 101(a)(15)(M)(i) of the attendance of nonimmigrant students Act. under section 101(a)(15)(F)(i) or (iv) English language training for a vo- 101(a)(15)(M)(i) of the Act or both. cational student. A student whose pri- (2) Approval for F–1 or M–1 classifica- mary intent is to pursue vocational or tion, or both—(i) F–1 classification. The technical training who takes English following schools may be approved for language training at the same school attendance by nonimmigrant students solely for the purpose of being able to under section 101(a)(15)(F)(i) of the Act: understand the vocational or technical (A) A college or university, i.e., an course of study is classified as a non- institution of higher learning which immigrant under section awards recognized bachelor’s, master’s 101(a)(15)(M)(i) of the Act. doctor’s or professional degrees. (b) Supporting documents. Pursuant to (B) A community college or junior sections 101(a)(15) (F) and (M) of the college which provides instruction in Immigration and Nationality Act, the the liberal arts or in the professions Service has consulted with the Depart- and which awards recognized associate ment of Education and determined that degrees. petitioning institutions must submit (C) A seminary. certain supporting documents as fol- (D) A conservatory. lows. A petitioning school or school (E) An academic high school. system owned and operated as a public (F) An elementary school. educational institution or system by (G) An institution which provides the United States or a State or a polit- language training, instruction in the ical subdivision thereof shall submit a liberal arts or fine arts, instruction in certification to that effect signed by the professions, or instruction or train- the appropriate public official who ing in more than one of these dis- shall certify that he or she is author- ciplines. ized to do so. A petitioning private or (ii) M–1 classification. The following parochial elementary or secondary schools are considered to be vocational school system shall submit a certifi- or nonacademic institutions and may cation signed by the appropriate public be approved for attendance by non- official who shall certify that he or she immigrant students under section is authorized to do so to the effect that 101(a)(15)(M)(i) of the Act: it meets the requirements of the State (A) A community college or junior or local public educational system. college which provides vocational or Any other petitioning school shall sub- technical training and which awards mit a certification by the appropriate recognized associate degrees. licensing, approving, or accrediting of- (B) A vocational high school. ficial who shall certify that he or she is (C) A school which provides voca- authorized to do so to the effect that it tional or nonacademic training other is licensed, approved, or accredited. In than language training. lieu of such certification a school (iii) Both F–1 and M–1 classification. A which offers courses recognized by a school may be approved for attendance State-approving agency as appropriate by nonimmigrant students under both for study for veterans under the provi- sections 101(a)(15)(F)(i) and sions of 38 U.S.C. 3675 and 3676 may sub- 101(a)(15)(M)(i) of the Act if it has both mit a statement of recognition signed

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by the appropriate official of the State conditionally by at least three such in- approving agency who shall certify stitutions of higher learning. If the pe- that he or she is authorized to do so. A titioner is an elementary or secondary charter shall not be considered a li- school and is not within the category cense, approval, or accreditation. A described in paragraph (b) (1) or (3) of school catalogue, if one is issued, shall this section, it must submit evidence also be submitted with each petition. If that attendance at the petitioning in- not included in the catalogue, or if a stitution satisfies the compulsory at- catalogue is not issued, the school tendance requirements of the State in shall furnish a written statement con- which it is located and that the peti- taining information concerning the tioning school qualifies graduates for size of its physical plant, nature of its acceptance by schools of a higher edu- facilities for study and training, educational level within the category de- cational, vocational or professional scribed in paragraph (b) (1), (2), or (3) of qualifications of the teaching staff, sal- this section. aries of the teachers, attendance and (d) An author- scholastic grading policy, amount and Interview of petitioner. character of supervisory and consult- ized representative of the petitioner ative services available to students and shall appear in person before an immi- trainees, and finances (including a cer- gration officer prior to the adjudica- tified copy of the accountant’s last tion of the petition to be interviewed statement of school’s net worth, in- under oath concerning the eligibility of come, and expenses). Neither a cata- the school for approval. An interview logue nor such a written statement may be waived at the discretion of the need be included with a petition sub- district director. mitted by: (e) Approval of petition—(1) Eligibility. (1) A school or school system owned To be eligible for approval, the peti- and operated as a public educational tioner must establish that— institution or system by the United (i) It is a bona fide school; States or a State or a political subdivi- (ii) It is an established institution of sion thereof; learning or other recognized place of (2) A school accredited by a nation- study; ally recognized accrediting body; or (iii) It possesses the necessary facili- (3) A secondary school operated by or ties, personnel, and finances to conduct as part of a school so accredited. instruction in recognized courses; and (c) Other evidence. The Service has (iv) It is, in fact, engaged in in- also consulted with the Department of struction in those courses. Education regarding the following (2) General. Upon approval of a peti- types of institutions and determined tion, the district director shall notify that they must submit additional evi- the petitioner. An approved school is dence. If the petitioner is a vocational, required to report immediately to the business, or language school, or Amer- ican institution of research recognized district director having jurisdication as such by the Attorney General, it over the school any material modifica- must submit evidence that its courses tion to its name, address or curriculum of study are accepted as fulfilling the for a determination of continued eligi- requirements for the attainment of an bility for approval. The approval of a educational, professional, or vocational school is valid as long as the school op- objective, and are not avocational or erates in the manner represented in the recreational in character. If the peti- petition. The approval is valid only for tioner is an institution of higher edu- the type of program and student speci- cation and is not within the category fied in the approval notice. The ap- described in paragraph (b) (1) or (2) of proval may be withdrawn in accord- this section, it must submit evidence ance with the provisions of § 214.4. that it confers upon its graduates rec- (f) Denial of petition. If the petition is ognized bachelor, master, doctor, pro- denied, the petitioner shall be notified fessional, or divinity degrees, or if it of the reasons therefor and of his right does not confer such degrees that its to appeal in accordance with the provi- credits have been and are accepted un- sions of part 103 of this chapter.

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(g) Recordkeeping and reporting re- days to respond to any request for in- quirements—(1) Recordkeeping require- formation concerning a class of stu- ments. An approved school must keep dents. If the Service requests informa- records containing certain specific in- tion on a student who is being held in formation and documents relating to custody, the school will respond orally each F–1 or M–1 student to whom it has on the same day the request for infor- issued a Form I–20A or I–20M while the mation is made, and the Service will student is attenidng the school and provide a written notification that the until the school notifies the Service, in request was made after the fact, if the accordance with the requirements of school so desires. The Service will first paragraph (g)(2) of this section, that attempt to gain information concern- the student is not pursuing a full ing a class of students from the Serv- course of study. The school must keep ice’s record system. a record of having complied with the (2) Reporting requirements. At inter- reporting requirements for at least one vals specified by the Service but not year. If a student who is out of status more frequently than once a term or is restored to status, the school the session, the Service’s processing center student is attending is responsible for shall send each school (to the address maintaining these records following re- given on Form I–17 as that to which the ceipt of notification from the Service list should be sent) a list of all F–1 and that the student has been restored to M–1 students who, according to Service status. The designated school official records, are attending that school. A must make the information and docu- designated school official at the school ments required by this paragraph must note on the list whether or not available to and furnish them to any each student on the list is pursuing a Service officer upon request. The infor- full course of study and give, in addi- mation and documents which the tion to the above information, the school must keep on each student are names and current addresses of all F–1 as follows: or M–1 students, or both, not listed, at- (i) Name. tending the school and other informa- (ii) Date and place of birth. tion specified by the Service as nec- (iii) Country of citizenship. essary to identify the students and to (iv) Address. determine their immigration status. (v) Status, i.e., full-time or part- The designated school official must time. comply with the request, sign the list, (vi) Date of commencement of stud- state his or her title, and return the ies. list to the Service’s processing center (vii) Degree program and field of within sixty days of the date of the re- study. quest. (viii) Whether the student has been (h) Review of school approvals. The certified for practical training, and the district director may periodically re- beginning and end dates of certifi- view the approval of a school in his or cation. her jurisdiction for compliance with (ix) Termination date and reason, if the reporting requirements of para- known. graph (g)(2) of this section and for con- (x) The documents referred to in tinued eligibility for approval pursuant paragraph (k) of this section. to paragraph (e) of this section. The (xi) The number of credits completed district director shall also, upon re- each semester. ceipt of notification, evaluate any (xii) A photocopy of the student’s I– changes made to the name, address, or 20 ID Copy. curriculum of an approved school to de- A Service officer may request any or termine if the changes have affected all of the above data on any individual the school’s eligibility for approval. student or class of students upon no- The district director may require the tice. This notice will be in writing if school under review to furnish a cur- requested by the school. The school rently executed Form I–17 without fee, will have three work days to respond to along with supporting documents, as a any request for information concerning petition for continuation of school ap- an individual student, and ten work proval when there is a question about

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whether the school still meets the eli- (4) The official responsible for admis- gibility requirements. If upon comple- sion at the school has accepted the pro- tion of the review, the district director spective student for enrollment in a finds that the approval should not be full course of study. continued, he or she shall institute (l) Designated official—(1) Meaning of withdrawal proceedings in accordance term ‘‘designated official’’. As used in with § 214.4(b). §§ 214.1(b), 214.2(f), 214.2(m), 214.4 and (i) Administration of student regula- this section, a ‘‘designated official’’ or tions by the Immigration and Naturaliza- ‘‘designated school official’’ means a tion Service. District directors in the regularly employed member of the field shall be responsible for conduct- school administration whose office is ing periodic reviews on the campuses located at the school and whose com- under the jurisdiction of their offices pensation does not come from commis- to determine whether students are sions for recruitment of foreign stu- complying with Service regulations in- dents. An individual whose principal cluding keeping their passports valid obligation to the school is to recruit for a period of six months at all times foreign students for compensation does when required. Service officers shall not qualify as a designated official. take appropriate action regarding vio- The president, owner, or head of a lations of the regulations. school or school system must designate (j) Advertising. In any advertisement, a designated official. The designated catalogue, brochure, pamphlet, lit- official may not delegate this designa- erature, or other material hereafter tion to any other person. Each school printed or reprinted by or for an ap- or institution may have up to five des- proved school, any statement which ignated officials at any one time. In a may appear in such material concern- multi-campus institution, each campus ing approval for attendance by non- may have up to five designated offi- immigrant students shall be limited cials at any one time. In an elementary solely to the following: This school is or secondary school system, however, authorized under Federal law to enroll the entire school system is limited to nonimmigrant alien students. five designated officials at any one (k) Issuance of Certificate of Eligibility. time. A designated official of a school that (2) Name, title, and sample signature. has been approved for attendance by Petitions for school approval must in- nonimmigrant students must certify clude the names, titles, and sample sig- Form I–20A or I–20M, but only after natures of designated officials. An ap- page 1 has been completed in full. A proved school must report to the Serv- Form I–20A–B or I–20M–N issued by an ice office having jurisdiction over it approved school system must state any changes in designated officials and which school within the system the furnish the name, title, and sample sig- student will attend. The form must be nature of the new designated official issued in the United States. Only a des- within thirty days of each change. ignated official shall issue a Certificate (3) Statement of designated official. A of Eligibility, Form I–20A–B or I–20M– petition for school approval must in- N, to a prospective student and only clude a statement by each designated after the following conditions are met: official certifying that the official has (1) The prospective student has made read the Service regulations relating to a written application to the school. nonimmigrant students, namely (2) The written application, the stu- §§ 214.1(b), 214.2(f), and 214.2(m); the dent’s transcripts or other records of Service regulations relating to change courses taken, proof of financial re- of nonimmigrant classification for stu- sponsibility for the student, and other dents, namely §§ 248.1(c), 248.1(d), supporting documents have been re- 248.3(b), and 248.3(d); the Service regu- ceived, reviewed, and evaluated at the lations relating to school approval, school’s location in the United States. namely this section and the regula- (3) The appropriate school authority tions relating to withdrawal of school has determined that the prospective approval namely, § 214.4; and affirming student’s qualifications meet all stand- the official’s intent to comply with ards for admission. these regulations. An approved school

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must also submit to the Service office that the students have met scholastic, having jurisdiction over it such a language or financial requirements. statement from any new designated of- (x) Issuance of Forms I–20A or I–20M ficial within thirty days of each change to aliens who will not be enrolled in or in designated official. carry full courses of study as defined in [30 FR 919, Jan. 29, 1965] §§ 214.2(f)(6) or 214.2(m)(9). (xi) Failure to operate as a bona fide EDITORIAL NOTE: For Federal Register cita- institution of learning. tions affecting § 214.3, see the List of CFR Sections Affected in the Finding Aids sec- (xii) Failure to employ qualified pro- tion of this volume. fessional personnel. (xiii) Failure to limit its advertising § 214.4 Withdrawal of school approval. in the manner prescribed in § 214.3(j). (a) General—(1) Withdrawal on notice. (xiv) Failure to maintain proper fa- If a school’s approval is withdrawn on cilities for instruction. notice as provided in paragraphs (b), (xv) Failure to maintain accredita- (c), (d), (e), (f), (g), (h), (i) (j), and (k) of tion or licensing necessary to qualify this section, the school is not eligible graduates as represented in the peti- to file another petition for school ap- tion. proval until at least one year after the (xvi) Failure to maintain the phys- effective date of the withdrawal. The ical plant, curriculum, and teaching approval by the Service, pursuant to staff in the manner represented in the sections 101(a)(15)(F)(i) or petition for school approval. 101(a)(15)(M)(i) or both, of the Act, of a (xvii) Failure to comply with the pro- petition by a school or school system cedures for issuance of Forms 1–20A or for the attendance of nonimmigrant 1–20M as set forth in § 214.3(k). students will be withdrawn on notice if (xviii) Failure of a designated school the school or school system is no official to notify the Service of mate- longer entitled to the approval for any rial changes to the school’s name, ad- valid and substantive reason including, dress, or curriculum as required by but not limited to, the following: § 214.3(e)(2). (i) Failure to comply with § 214.3(g)(1) without a subpoena. (2) Automatic withdrawal. If an ap- (ii) Failure to comply with proved school terminates its oper- § 214.3(g)(2). ations, approval will be automatically (iii) Failure of a designated school of- withdrawn as of the date of termi- ficial to notify the Service of the at- nation of the operations. If an approved tendance of an F–1 transfer student as school changes ownership, approval required by § 214.2(f)(8)(ii). will be automatically withdrawn sixty (iv) Willful issuance by a designated days after the change of ownership unofficial of a false statement or certifi- less the school files a new petition for cation in connection with a school school approval within sixty days of transfer or an application for employ- that change of ownership. The district ment or practical training. director must review the petition to (v) Any conduct on the part of a des- determine whether the school still ignated official which does not comply meets the eligibility requirements of with the regulations. § 214.3(e). If, upon completion of the re- (vi) The designation as a designated view, the district director finds that official of an individual who does not the approval should not be continued, meet the requirements of § 214.3(l)(1). the district director shall institute (vii) Failure to provide the Service withdrawal proceedings in accordance with the names, titles, and sample sig- with paragraph (b) of this section. natures of designated officials as re- Automatic withdrawal of a school’s ap- quired by § 214.3(l)(2). proval is without prejudice to consider- (viii) Failure to submit statements of ation of a new petition for school ap- designated officials as required by proval. § 214.3(l)(3). (b) Notice. Whenever a district direc- (ix) Issuance of Forms I–20A or I–20M tor has reason to believe that an ap- to students without receipt of proof proved school or school system in his/

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her district is no longer entitled to ap- cretion of the district director, the proval, a proceeding shall be com- interview may be recorded. menced by service upon its designated (g) Decision. The decision of the dis- official a notice of intention to with- trict director shall be in writing and draw the approval. The notice shall in- shall include a discussion of the evi- form the designated official of the dence and findings as to withdrawal. school or school system of the grounds The decision shall contain an order ei- upon which it is intended to withdraw ther withdrawing approval or granting its approval. The notice shall also in- continued approval. The written deci- form the school or school system that sion shall be served upon the school or it may, within 30 days of the date of school system, together with the no- service of the notice, submit written tice of the right to appeal pursuant to representations under oath supported part 103 of this chapter. by documentary evidence setting forth (h) Appeal. Any appeal shall be taken reasons why the approval should not be within 15 days after the service of the withdrawn and that the school or written decision. The reasons for the school system may, at the time of fil- appeal shall be stated in the notice of ing the answer, request in writing an appeal, Form I–290B, and supported by interview before the district director in a statement or brief specifically set- support of the written answer. ting forth the grounds for contesting (c) Assistance of counsel. The school or the withdrawal of the approval. school system shall also be informed in the notice of intent to withdraw ap- [37 FR 17463, Aug. 29, 1972, as amended at 48 FR 14592, Apr. 5, 1983; 48 FR 19867, May 3, proval that it may be assisted or rep- 1983; 48 FR 22131, May 17, 1983; 49 FR 41015, resented by counsel of its choice quali- Oct. 19, 1984; 50 FR 9991, Mar. 13, 1985; 54 FR fied under part 292 of this chapter, at 19544, May 8, 1989; 55 FR 41988, Oct. 17, 1990] no expense to the Government, in preparation of its answer or in connection § 214.5 Libyan and third country na- with the interview. tionals acting on behalf of Libyan (d) Allegations admitted or no answer entities. filed. If the school or school system ad- (a) Notwithstanding any other provi- mits all of the allegations in the notice sion of this title, the nonimmigrant of intent to withdraw approval, or if status of any Libyan national, or of the school or school system fails to file any other foreign national acting on an answer within the 30-day period, the behalf of a Libyan entity, who is en- district director shall withdraw the ap- gaging in aviation maintenance, flight proval previously granted and he/she operations, or nuclear-related studies shall notify the designated school offi- or training is terminated. cial of the decision. No appeal shall lie (b) Notwithstanding any other provi- from the district director’s decision if sion of this chapter, the following ben- all allegations are admitted or no an- efits will not be available to any Liby- swer is filed within the 30-day period. an national or any other foreign na- (e) Allegations denied. If the school or tional acting on behalf of a Libyan en- school system denies the allegations in tity where the purpose is to engage in, the notice of intent to withdraw ap- or seek to obtain aviation mainte- proval, then the school or school sys- nance, flight operations or nuclear-re- tem shall, in its answer, provide all in- lated studies or training: formation or evidence on which the an- (1) Application for school transfer. swer is based. (2) Application for extension of stay. (f) Interview requested. (1) If in its an- (3) Employment authorization or swer to the notice of intent to with- practical training. draw approval the school or school sys- (4) Request for reinstatement of stu- tem requests an interview, the school dent status. or school system shall be given notice (5) Application for change of non- of the date set for the interview. immigrant status. (2) A summary of the information provided by the school or school sys- (Secs. 103, 212, 214, 248; 8 U.S.C. 1103, 1182, tem at the interview shall be prepared 1184, 1258) and included in the record. In the dis- [48 FR 10297, Mar. 3, 1983]

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§ 214.6 Canadian and Mexican citizens —Architect—Baccalaureate or Licenciatura seeking temporary entry to engage Degree; or state/provincial license.2 in business activities at a profes- —Computer Systems Analyst—Bacca- sional level. laureate or Licenciatura Degree; or Post- Secondary Diploma 3 or Post Secondary (a) General. Under section 214(e) of Certificate 4 and three years’ experience. the Act, a citizen of Canada or Mexico —Disaster relief insurance claims adjuster who seeks temporary entry as a busi- (claims adjuster employed by an insur- ness person to engage in business ac- ance company located in the territory of a Party, or an independent claims ad- tivities at a professional level may be juster)—Baccalaureate or Licenciatura admitted to the United States in ac- Degree and successful completion of cordance with the North American training in the appropriate areas of in- Free Trade Agreement (NAFTA). surance adjustment pertaining to disas- (b) Definitions. As used in this section ter relief claims; or three years experience in claims adjustment and successful the terms: completion of training in the appropriate Business activities at a professional areas of insurance adjustment pertaining level means those undertakings which to disaster relief claims. require that, for successful completion, —Economist—Baccalaureate or Licenciatura the individual has at least a bacca- Degree. laureate degree or appropriate creden- —Engineer—Baccalaureate or Licenciatura Degree; or state/provincial license. tials demonstrating status as a profes- —Forester—Baccalaureate or Licenciatura sional. Degree; or state/provincial license. Business person, as defined in the —Graphic Designer—Baccalaureate or NAFTA, means a citizen of Canada or Licenciatura Degree; or Post-Secondary Mexico who is engaged in the trade of Diploma or Post-Secondary Certificate goods, the provision of services, or the and three years experience. —Hotel Manager—Baccalaureate or conduct of investment activities. Licenciatura Degree in hotel/restaurant Engage in business activities at a pro- management; or Post-Secondary Di- fessional level means the performance of ploma or Post Secondary Certificate in prearranged business activities for a hotel/restaurant management and three United States entity, including an indi- years experience in hotel/restaurant management. vidual. It does not authorize the estab- —Industrial Designer—Baccalaureate or lishment of a business or practice in Licenciatura Degree; or Post-Secondary the United States in which the profes- Diploma or Post Secondary Certificate, sional will be self-employed. and three years experience. Temporary entry, as defined in the —Interior Designer—Baccalaureate or NAFTA, means entry without the in- Licenciatura Degree or Post-Secondary Diploma or Post-Secondary Certificate, tent to establish permanent residence. and three years experience. (c) Appendix 1603.D.1 to Annex 1603 of the NAFTA. Pursuant to the NAFTA, 2 The terms ‘‘state/provincial license’’ and an applicant seeking admission under ‘‘state/provincial/federal license’’ mean any this section shall demonstrate business document issued by a state, provincial, or activity at a professional level in one federal government, as the case may be, or of the professions set forth in Appendix under its authority, but not by a local gov- 1603.D.1 to Annex 1603. The professions ernment, that permits a person to engage in in Appendix 1603.D.1 and the minimum a regulated activity or profession. requirements for qualification for each 3 ‘‘Post Secondary Diploma’’ means a cre- are as follows: 1 dential issued, on completion of two or more years of post secondary education, by an ac- APPENDIX 1603.D.1 (ANNOTATED) credited academic institution in Canada or the United States. —Accountant—Baccalaureate or 4 ‘‘Post Secondary Certificate’’ means a Licenciatura Degree; or C.P.A., C.A., certificate issued, on completion of two or C.G.A., or C.M.A. more years of post secondary education at an academic institution, by the federal govern- 1 A business person seeking temporary em- ment of Mexico or a state government in ployment under this Appendix may also per- Mexico, an academic institution recognized form training functions relating to the pro- by the federal government or a state govern- fession, including conducting seminars. ment, or an academic institution created by federal or state law. 313

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—Land Surveyor—Baccalaureate or —Medical Laboratory Technologist (Can- Licenciatura Degree or state/provincial/ ada)/Medical Technologist (Mexico and federal license. the United States) 6—Baccalaureate or —Landscape Architect—Baccalaureate or Licenciatura Degree; or Post-Secondary Licenciatura Degree. Diploma or Post-Secondary Certificate, —Lawyer (including Notary in the province and three years experience. of Quebec)—L.L.B., J.D., L.L.L., B.C.L., —Nutritionist—Baccalaureate or or Licenciatura degree (five years); or Licenciatura Degree. membership in a state/provincial bar. —Occupational Therapist—Baccalaureate —Librarian—M.L.S., or B.L.S. (for which an- or Licenciatura Degree; or state/provin- other Baccalaureate or Licenciatura De- cial license. gree was a prerequisite). —Pharmacist—Baccalaureate or —Management Consultant—Baccalaureate Licenciatura Degree; or state/provincial or Licenciatura Degree; or equivalent license. professional experience as established by —Physician (teaching or research only)— statement or professional credential at- M.D. Doctor en Medicina; or state/pro- testing to five years experience as a man- vincial license. agement consultant, or five years experi- —Physiotherapist/Physical Therapist— ence in a field of specialty related to the Baccalaureate or Licenciatura Degree; or consulting agreement. state/provincial license. —Mathematician (including Statistician)— —Psychologist—state/provincial license; or Baccalaureate or Licenciatura Degree. Licenciatura Degree. —Range Manager/Range Conservationist— —Recreational Therapist-Baccalaureate or Baccalaureate or Licenciatura Degree. Licenciatura Degree. —Research Assistant (working in a post-secondary educational institution)—Bacca- —Registered nurse—state/provincial li- laureate or Licenciatura Degree. cense or Licenciatura Degree. —Scientific Technician/Technologist 5—Pos- —Veterinarian—D.V.M., D.M.V., or Doctor session of (a) theoretical knowledge of en Veterinaria; or state/provincial li- any of the following disciplines: agricul- cense. tural sciences, astronomy, biology, —SCIENTIST chemistry, engineering, forestry, geol- —Agriculturist (including Agronomist)— ogy, geophysics, meteorology, or physics; Baccalaureate or Licenciatura Degree. and (b) the ability to solve practical —Animal Breeder—Baccalaureate or problems in any of those disciplines, or Licenciatura Degree. the ability to apply principles of any of —Animal Scientist—Baccalaureate or those disciplines to basic or applied re- Licenciatura Degree. search. —Apiculturist—Baccalaureate or —Social Worker—Baccalaureate or Licenciatura Degree. Licenciatura Degree. —Astronomer—Baccalaureate or —Sylviculturist (including Forestry Special- Licenciatura Degree. ist)—Baccalaureate or Licenciatura De- —Biochemist—Baccalaureate or gree. Licenciatura Degree. —Technical Publications Writer—Bacca- —Biologist—Baccalaureate or Licenciatura laureate or Licenciatura Degree, or Post- Degree. Secondary Diploma or Post-Secondary —Chemist—Baccalaureate or Licenciatura Certificate, and three years experience. Degree. —Urban Planner (including Geographer)— —Dairy Scientist—Baccalaureate or Baccalaureate or Licenciatura Degree. Licenciatura Degree. —Vocational Counselor—Baccalaureate or —Entomologist—Baccalaureate or Licenciatura Degree. Licenciatura Degree. —Epidemiologist—Baccalaureate or Medical/Allied Professionals Licenciatura Degree. —Dentist—D.D.S., D.M.D., Doctor en —Geneticist—Baccalaureate or Odontologia or Doctor en Cirugia Dental Licenciatura Degree. or state/provincial license. —Geochemist—Baccalaureate or —Dietitian—Baccalaureate or Licenciatura Degree. Licenciatura Degree; or state/provincial —Geologist—Baccalaureate or license. Licenciatura Degree.

5 A business person in this category must 6 A business person in this category must be seeking temporary entry for work in di- be seeking temporary entry to perform in a rect support of professionals in agricultural laboratory chemical, biological, sciences, astronomy, biology, chemistry, en- hematological, immunologic, microscopic or gineering, forestry, geology, geophysics, me- bacteriological tests and analyses for diag- teorology or physics. nosis, treatment, or prevention of diseases. 314

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—Geophysicist (including Oceanographer stitution not located within Mexico, in Mexico and the United States)—Bacca- Canada, or the United States must be laureate or Licenciatura Degree. accompanied by an evaluation by a re- —Horticulturist—Baccalaureate or Licenciatura Degree. liable credentials evaluation service —Meteorologist—Baccalaureate or which specializes in evaluating foreign Licenciatura Degree. educational credentials. Evidence of —Pharmacologist—Baccalaureate or experience should consist of letters Licenciatura Degree. from former employers or, if formerly —Physicist (including Oceanographer in self-employed, business records attest- Canada—Baccalaureate or Licenciatura ing to such self-employment; and Degree. —Plant Breeder—Baccalaureate or (iii) A statement from the prospec- Licenciatura Degree. tive employer in the United States spe- —Poultry Scientist—Baccalaureate or cifically stating the Appendix 1603.D.1 Licenciatura Degree. profession in which the beneficiary will —Soil Scientist—Baccalaureate or be engaging and a full description of Licenciatura Degree. the nature of the duties which the ben- —Zoologist—Baccalaureate or eficiary will be performing. The state- Licenciatura Degree. —TEACHER ment must set forth licensure require- —College—Baccalaureate or Licenciatura ments for the state or locality of in- Degree. tended employment or, if no license is —Seminary—Baccalaureate or required, the non-existence of such re- Licenciatura Degree. quirements for the professional activ- —University—Baccalaureate or ity to be engaged in. Licenciatura Degree. (iv) Licensure for TN classification—(A) (d) Classification of citizens of Mexico General. If the profession requires a as TN professionals under the NAFTA— state or local license for an individual (1) General. A United States employer to fully perform the duties of that pro- seeking to classify a citizen of Mexico fession, the beneficiary for whom TN as a TN professional temporary em- classification is sought must have that ployee shall file a petition on Form I– license prior to approval of the petition 129, Petition for Nonimmigrant Work- and evidence of such licensing must ac- er, with the Northern Service Center, company the petition. even in emergent circumstances. The (B) Temporary licensure. If a tem- petitioner may submit a legible photo- porary license is available and the ben- copy of a document in support of the eficiary would be allowed to perform visa petition in lieu of the original doc- the duties of the profession without a ument. The original document shall be permanent license, the director shall submitted if requested by the Service. examine the nature of the duties, the (2) Supporting documents. A petition level at which the duties are per- in behalf of a citizen of Mexico seeking formed, the degree of supervision re- classification as a TN professional ceived, and any limitations which shall be accompanied by: would be placed upon the beneficiary. (i) A certification from the Secretary If an analysis of the facts demonstrates of Labor that the petitioner has filed that the beneficiary, although under the appropriate documentation with supervision, would be fully authorized the Secretary in accordance with sec- to perform the duties of the profession, tion (D)(5)(b) of Annex 1603 of the TN classification may be granted. NAFTA. (C) Duties without licensure. In certain (ii) Evidence that the beneficiary professions which generally require li- meets the minimum education require- censure, a state may allow an individ- ments or alternative credentials re- ual to fully practice a profession under quirements of Appendix 1603.D.1 of the supervision of licensed senior or su- Annex 1603 of the NAFTA as set forth pervisory personnel in that profession. in § 214.6(c). This documentation may In such cases, the director shall exam- consist of licenses, degrees, diplomas, ine the nature of the duties and the certificates, or evidence of membership level at which they are to be per- in professional organizations. Degrees, formed. If the facts demonstrate that diplomas, or certificates received by the beneficiary, although under super- the beneficiary from an educational in- vision, would fully perform the duties

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of the profession, TN classification evidence and will be granted a period of may be granted. thirty days in which to do so. All rel- (D) Registered nurses. The prospective evant rebuttal material will be consid- employer must submit evidence that ered in making a final decision. the beneficiary has been granted a per- (ii) Notice of denial. The petitioner manent state license, a temporary shall be notified of the decision, the state license or other temporary au- reasons for the denial, and the right to thorization issued by a State Board of appeal the denial under part 103 of this Nursing authorizing the beneficiary to chapter. work as a registered or graduate nurse (5) Revocation of approval of petition— in the state of intended employment in (i) General. (A) The petitioner shall im- the United States. mediately notify the Service of any (3) Approval and validity of petition— changes in the terms and conditions of (i) Approval. The director shall notify employment of a beneficiary which the petitioner of the approval of the pe- may effect eligibility under section tition on Form I–797, Notice of Action. 214(e) of the Act or § 214.6. An amended The approval notice shall include the petition should be filed when the peti- beneficiary’s name, classification, Ap- tioner continues to employ the bene- pendix 1603.D.1 profession, and the peti- ficiary. If the petitioner no longer em- tion’s period of validity. ploys the beneficiary, the petitioner (ii) Recording the validity of petitions. shall send a letter explaining the Procedures for recording the validity change(s) to the director who approved period of petitions are: the petition. (A) If the petition is approved before (B) The director may revoke a peti- the date the petitioner indicates that tion at any time, even after the valid- employment will begin, the approved ity of the petition has expired. petition and approval notice shall show (ii) Automatic revocation. The ap- the actual dates requested by the peti- proval of an unexpired petition is auto- tioner as the validity period, not to ex- matically revoked if the petitioner ceed the limits specified by paragraph goes out of business, files a written (d)(3)(iii) of this section. withdrawal of the petition, or notifies (B) If the petition is approved after the Service that the beneficiary is no the date the petitioner indicates em- longer employed by the petitioner. ployment will begin, the approved peti- (iii) Revocation on notice—(A) Grounds tion and approval notice shall show a for revocation. The director shall send validity period commencing with the to the petitioner a notice of intent to date of approval and ending with the revoke the petition in relevant part if date requested by the petitioner, as he or she finds that: long as that date does not exceed the (1) The beneficiary is no longer em- limits specified by paragraph (d)(3)(iii) ployed by the petitioner in the capac- of this section. ity specified in the petition; (C) If the period of employment re- (2) The statement of facts contained quested by the petitioner exceeds the in the petition were not true and cor- limit specified in paragraph (d)(3)(iii) rect; of this section, the petition shall be ap- (3) The petitioner violated the terms proved only up to the limit specified in or conditions of the approved petition; that paragraph. (4) The petitioner violated require- (iii) Validity. An approved petition ments of section 214(e) of the Act or classifying a citizen of Mexico as a TN § 214.6; or nonimmigrant shall be valid for a pe- (5) The approval of the petition vio- riod of up to one year. lated § 214.6 or involved gross error. (4) Denial of petition—(i) Notice of in- (B) Notice and decision. The notice of tent to deny. When an adverse decision intent to revoke shall contain a de- is proposed on the basis of derogatory tailed statement of the grounds for the information of which the petitioner is revocation and the time period allowed unaware, the director shall notify the for the petitioner’s rebuttal. The peti- petitioner of the intent to deny the pe- tioner may submit evidence in rebuttal tition and the basis for the denial. The within thirty days of the date of the petitioner may inspect and rebut the notice. The director shall consider all

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relevant evidence presented in deciding (e) Classification of citizens of Canada whether to revoke the petition. as TN professionals under the NAFTA— (6) Appeal of a denial or revocation of a (1) General. Under section 214(e) of the petition—(i) Denial. A denied petition Act, a citizen of Canada who seeks may be appealed under part 103 of this temporary entry as a business person chapter. to engage in business activities at a (ii) Revocation. A petition that has professional level may be admitted to been revoked on notice may be ap- the United States in accordance with pealed under part 103 of this chapter. the NAFTA. Automatic revocations may not be ap- (2) Application for admission. A citizen pealed. of Canada seeking admission under this (7) Numerical limit—(i) Limit on number section shall make application for ad- of petitions to be approved in behalf of mission with an immigration officer at citizens of Mexico. Beginning on the a United States Class A port of entry, date of entry into force of the NAFTA, at a United States airport handling not more than 5,500 citizens of Mexico international traffic, or at a United can be classified as TN nonimmigrants States pre-clearance/pre-flight station. annually. No prior petition, labor certification, or prior approval shall be required. (ii) Procedures. (A) Each citizen of (3) Evidence. A visa shall not be re- Mexico issued a visa or otherwise pro- quired of a Canadian citizen seeking vided TN nonimmigrant status under admission as a TN nonimmigrant under section 214(e) of the Act shall be count- section 214(e) of the Act. Upon applica- ed for purposes of the numerical limit. tion for admission at a United States Requests for petition extension or export of entry, an applicant under this tension of the alien’s stay and submis- section shall present the following: sions of amended petitions shall not be (i) Proof of Canadian citizenship. Un- counted for purposes of the numerical less travelling from outside the West- limit. The spouse and children of prin- ern hemisphere, no passport shall be cipal aliens classified as TD non- required; however, an applicant for ad- immigrants shall not be counted mission must establish Canadian citi- against the numerical limit. zenship. (B) Numbers will be assigned tempo- (ii) Documentation demonstrating rarily to each Mexican citizen in whose engagement in business activities at a behalf a petition for TN classification professional level and demonstrating has been filed. If a petition is denied, professional qualifications. The appli- the number originally assigned to the cant must present documentation suffi- petition shall be returned to the sys- cient to satisfy the immigration officer tem which maintains and assigns num- at the time of application for admis- bers. sion, that the applicant is seeking (C) When an approved petition is not entry to the United States to engage in used because the beneficiary does not business activities for a United States apply for admission to the United employer(s) or entity(ies) at a profes- States, the petitioner shall notify the sional level, and that the applicant service center director who approved meets the criteria to perform at such a the petition that the number has not professional level. This documentation been used. The petition shall be re- may be in the form of a letter from the voked pursuant to paragraph (d)(5)(ii) prospective employer(s) in the United of this section and the unused number States or from the foreign employer, in shall be returned to the system which the case of a Canadian citizen seeking maintains and assigns numbers. entry to provide prearranged services (D) If the total annual limit has been to a United States entity, and may be reached prior to the end of the year, required to be supported by licenses, new petitions and the accompanying diplomas, degrees, certificates, or fee shall be rejected and returned with membership in a professional organiza- a notice stating that numbers are un- tion. Degrees, diplomas, or certificates available for Mexican citizen TN non- received by the applicant from an edu- immigrants and the date when num- cational institution not located within bers will again become available. Canada, Mexico, or the United States

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must be accompanied by an evaluation entation of the letter or supporting by a reliable credentials evaluation documentation described in paragraph service which specializes in evaluating (e)(3) of this section, and without re- foreign educational credentials. The mittance of the prescribed fee, pro- documentation shall fully affirm: vided that the original intended profes- (A) The Appendix 1603.D.1 profession sional activities and employer(s) have of the applicant; not changed. If the Canadian citizen (B) A description of the professional seeking readmission to the United activities, including a brief summary States is no longer in possession of a of daily job duties, if appropriate, valid, unexpired Form I–94, and the pe- which the applicant will engage in for riod of initial admission has not lapsed, the United States employer/entity; he or she shall present alternate evi- (C) The anticipated length of stay; dence in order to be readmitted in TN (D) The educational qualifications or status. This alternate evidence may in- appropriate credentials which dem- clude, but is not limited to, a Service onstrate that the Canadian citizen has fee receipt for admission as a TN or a professional level status; previously issued admission stamp as (E) The arrangements for remunera- TN in a passport, and a confirming let- tion for services to be rendered; and ter from the United States employer(s). (F) If required by state or local law, A new Form I–94 shall be issued at the that the Canadian citizen complies time of readmission bearing the legend with all applicable laws and/or licens- ‘‘multiple entry’’. ing requirements for the professional (2) Mexican citizens. A Mexican citizen activity in which they will be engaged. in this classification may be readmit- (f) Procedures for admission—(1) Cana- ted for the remainder of the period of dian citizens. A Canadian citizen who time authorized on Form I–94 provided qualifies for admission under this sec- that the original intended professional tion shall be provided confirming docu- activities and employer(s) have not mentation (Service Form I–94) and changed. If the Mexican citizen seeking shall be admitted under the classifica- readmission to the United States is no tion symbol TN for a period not to ex- longer in possession of a valid, ceed one year. Form I–94 shall bear the unexpired Form I–94, he or she may be legend ‘‘multiple entry’’. The fee pre- readmitted upon presentation of a scribed under § 103.7(b) of this chapter valid TN visa and evidence of a pre- shall be remitted upon admission to vious admission. A new Form I–94 shall the United States pursuant to the be issued at the time of readmission terms and conditions of the NAFTA. bearing the legend ‘‘multiple entry’’. Upon remittance of the prescribed fee, (h) Extension of stay—(1) Mexican citi- the Canadian citizen applicant shall be zen. The United States employer shall provided a Service receipt (Form G–211, apply for extension of the Mexican citi- Form G–711, or Form I–797). zen’s stay in the United States by fil- (2) Mexican citizens. The Mexican citi- ing Form I–129 with the Northern Serv- zen beneficiary of an approved Form I– ice Center. The applicant must also re- 129 granting classification as a TN pro- quest a petition extension. The request fessional shall be admitted to the Unit- for extension must be accompanied by ed States for the validity period of the either a new or a photocopy of the approved petition upon presentation of prior certification on Form ETA 9029, a valid TN visa issued by a United in the case of a registered nurse, or States consular officer and a copy of Form ETA 9035, in all other cases, that the United States employer’s state- the petitioner continues to have on file ment as described in paragraph with the Department of Labor for the (d)(2)(iii) of this section. The Mexican period of time requested. The dates of citizen shall be provided Form I–94 extension shall be the same for the pe- bearing the legend ‘‘multiple entry’’. tition and the beneficiary’s extension (g) Readmission—(1) Canadian citizens. of stay. The beneficiary must be phys- A Canadian citizen in this classifica- ically present in the United States at tion may be readmitted to the United the time of the filing of the extension States for the remainder of the period of stay. Even though the requests to authorized on Form I–94, without pres- extend the petition and the alien’s stay

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are combined on the petition, the di- States pursuant to the terms and con- rector shall make a separate deter- ditions of the NAFTA. mination on each. If the citizen of Mex- (i) Request for change or addition of ico is required to leave the United United States employer(s)—(1) Mexican States for business or personal reasons citizen. A citizen of Mexico admitted during the pendency of the extension under this paragraph who seeks to request, the petitioner may request the change or add a United States em- director to cable notification of the ap- ployer must have the new employer file proval of the petition to the consular a Form I–129 petition with appropriate office abroad where the beneficiary will supporting documentation, including a apply for a visa. An extension of stay letter from the new employer describ- may be authorized for up to one year. ing the services to be performed, the There is no specific limit on the total time needed to render such services, period of time a citizen of Mexico may and the terms for remuneration for remain in TN status. services and evidence of required filing (2) Canadian citizen—(i) Filing at the with the Secretary of Labor. Employ- service center. The United States employer of a Canadian citizen in TN sta- ment with a different or with an addi- tus or United States entity, in the case tional employer is not authorized prior of a Canadian citizen in TN status who to Service approval of the petition. has a foreign employer, may request an (2) Canadian citizen—(i) Filing at the extension of stay by filing Form I–129 service center. A citizen of Canada ad- with the prescribed fee, with the mitted under this paragraph who seeks Northern Service Center. The bene- to change or add a United States em- ficiary must be physically present in ployer during this period of admission the United States at the time of the fil- must have the new employer file a ing of the extension of stay. If the alien Form I–129 petition with appropriate is required to leave the United States supporting documentation, including a for business or personal reasons while letter from the new employer describ- the extension request is pending, the ing the services to be performed, the petitioner may request the director to time needed to render such services, cable notification of approval of the and the terms for remuneration for application to the port of entry where services. Employment with a different the Canadian citizen will apply for ad- or with an additional employer is not mission to the United States. An ex- authorized prior to Service approval of tension of stay may be authorized for the petition. up to one year. There is no specific (ii) Readmission at the border. Nothing limit on the total period of time a citi- in paragraph (i)(2)(i) of this section zen of Canada may remain in TN sta- precludes a citizen of Canada from ap- tus. plying for readmission to the United (ii) Readmission at the border. Nothing States for the purpose of presenting in paragraph (h)(2)(i) of this section documentation from a different or ad- shall preclude a citizen of Canada who ditional United States or foreign em- has previously been in the United States in TN status from applying for ployer. Such documentation shall meet admission for a period of time which the requirements prescribed in para- extends beyond the date of his or her graph (e)(3)(ii) of this section. The fee original term of admission at any Unit- prescribed under § 103.7(b) of this chap- ed States port of entry. The applica- ter shall be remitted upon admission to tion for admission shall be supported the United States pursuant to the by a new letter from the United States terms and conditions of the NAFTA. employer or the foreign employer, in (3) No action shall be required on the the case of a Canadian citizen who is part of a Canadian or Mexican citizen providing prearranged services to a who is transferred to another location United States entity, which meets the by the United States employer to per- requirements of paragraph (e)(3)(ii) of form the same services. Such an ac- this section. The fee prescribed under ceptable transfer would be to a branch § 103.7(b) of this chapter shall be remit- or office of the employer. In the case of ted upon admission to the United a transfer to a separately incorporated

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subsidiary or affiliate, the require- ticipation in a strike or other labor ments of paragraphs (i) (1) and (2) of dispute involving a work stoppage of this section would apply. workers, but is subject to the following (j) Spouse and unmarried minor chil- terms and conditions: dren accompanying or following to join. (i) The alien shall remain subject to (1) The spouse of unmarried minor all applicable provisions of the Immi- child of a citizen of Canada or Mexico gration and Nationality Act and regu- admitted in TN nonimmigrant status lations promulgated in the same man- shall be required to present a valid, ner as all other TN nonimmigrants; unexpired nonimmigrant TD visa un- (ii) The status and authorized period less otherwise exempt under § 212.1 of of stay of such an alien is not modified this chapter. or extended in any way by virtue of his (2) The spouse and dependent minor or her participation in a strike or other children shall be issued confirming labor dispute involving a work stop- documentation (Form I–94) bearing the page of workers; and legend ‘‘multiple entry’’. There shall be (iii) Although participation by a TN no fee required for admission of the nonimmigrant alien in a strike or spouse and dependent minor children. other labor dispute involving a work (3) The spouse and dependent minor stoppage of workers will not constitute children shall not accept employment a ground for deportation, any alien in the United States unless otherwise who violates his or her status or who authorized under the Act. remains in the United States after his (k) Effect of a strike. If the Secretary or her authorized period of stay has ex- of Labor certifies to or otherwise in- pired will be subject to deportation. forms the Commissioner that a strike (4) If there is a strike or other labor or other labor dispute involving a work dispute involving a work stoppage of stoppage of workers is in progress, and workers in progress, but such strike or the temporary entry of a citizen of other labor dispute is not certified Mexico or Canada in TN nonimmigrant under paragraph (k)(1) of this section, status may affect adversely the settle- or the Service has not otherwise been ment of any labor dispute or the em- informed by the Secretary that such a ployment of any person who is involved strike or labor dispute is in progress, in such dispute: the Commissioner shall not deny a pe- (1) The United States may refuse to tition, suspend an approved petition, or issue an immigration document au- deny entry to an applicant for TN sta- thorizing entry or employment to such tus. alien. (l) Transition for Canadian Citizen Pro- (2) A Form I–129 seeking to classify a fessionals in TC classification and their citizen of Mexico as a TN non- B–2 spouses and/or unmarried minor chil- immigrant may be denied. If a petition dren—(1) Canadian citizen professionals has already been approved, but the in TC Classification—(i) General. Cana- alien has not yet entered the United dian citizen professionals in TC classi- States, or has entered the United fication as of the effective date of the States but not yet commenced employ- NAFTA Implementation Act (January ment, the approval of the petition may 1, 1994) will automatically be deemed be suspended. to be in valid TN classification. Such (3) If the alien has already com- persons may be readmitted to the Unit- menced employment in the United ed States in TN classification for the States and is participating in a strike remainder of the period authorized on or other labor dispute involving a work their Form I–94, without presentation stoppage of workers, whether or not of the letter or supporting documenta- such strike or other labor dispute has tion described in paragraph (e)(3) of been certified by the Department of this section, and without remittance of Labor, or whether the Service has been the prescribed fee, provided that the otherwise informed that such a strike original intended professional activi- or labor dispute is in progress, the ties and employer(s) have not changed. alien shall not be deemed to be failing Properly filed applications for exten- to maintain his or her status solely on sion of stay in TC classification which account of past, present, or future par- are pending on January 1, 1994 will be

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deemed to be, and adjudicated as if citizen professional whose TC status they were applications for extension to has been automatically converted to stay in TN classification. TN, or the spouse and/or unmarried (ii) Procedure for Canadian citizens ad- minor child of such professional whose mitted in TC classification in possession of status has been changed to TN pursu- Form I–94 indicating admission in TC ant to paragraph (1) of this section, classification. At the time of readmis- who is seeking admission or readmission, such professionals shall be re- sion to this country, may be readmit- quired to surrender their old Form I–94 ted in TD classification for the remain- indicating admission in TC classifica- der of the period authorized on their tion. Upon surrender of the old Form I– Form I–94, without presentation of the 94, such professional will be issued a letter or supporting documentation de- new Form I–94 bearing the legend scribed in paragraph (e)(3) of this sec- ‘‘multiple entry’’ and indicating that tion, and without remittance of the he or she has been readmitted in TN prescribed fee, provided that the origi- classification. nal intended professional activities and (iii) Procedure for Canadian citizen ad- employer(s) of the Canadian citizen mitted in TC classification who are no professional have not changed. Prop- longer in possession of Form I–94 indicat- erly filed applications for extension of ing admission in TC classification. If the stay in B–2 classification as the spouse Canadian citizen seeking readmission and/or unmarried minor children of a to the United States is no longer in Canadian citizen professional in TC possession of an unexpired Form I–94, classification which are pending on and the period of initial admission has January 1, 1994 will be deemed to be, not lapsed, he or she shall present al- and adjudicated as if they were appli- ternate evidence described in para- cations for extension of stay in TD graph (g)(1) of this section in order to classification. be readmitted in TN status. A Cana- (ii) Procedure for spouses and/or un- dian professional seeking to extend his married minor children of Canadian citi- or her stay beyond the period indicated zens admitted in TC classification who are on the new Form I–94 shall be required in possession of Form I–94 indicating ad- to comply with the requirements of mission in B–2 classification. Upon sur- paragraph (h)(2) of this section, includ- render of the Form I–94 indicating that ing remittance of the fee prescribed the alien has been admitted as the B–2 under § 103.7 of this chapter. spouse or unmarried minor child of a (iv) Nonapplicability of this section to TC alien valid for ‘‘multiple entry,’’ self-employed professionals in TC non- such alien shall be issued a new Form immigrant classification. The provisions I–94 indicating that the alien has been in paragraphs (l)(1) (i), (ii), and (iii) of readmitted in TD classification. The this section shall not apply to profes- new Form I–94 shall bear the legend sionals in TC nonimmigrant classifica- ‘‘multiple entry.’’ tion who are self-employed in this (iii) Procedure for spouses and/or un- country on January 1, 1994. Effective married minor children of Canadian citi- January 1, 1994, such professionals are zens admitted in TC classification who are not authorized to engage in self-em- no longer in possession of Form I–94 indi- ployment in this country, and may not cating admission in B–2 classification. If be admitted in TN or readmitted in TC the Canadian citizen seeking readmis- classification. sion to the United States is no longer (2) Spouses and/or unmarried minor in possession of an unexpired Form I– children of Canadian citizen professionals 94, and the period of initial admission in TC classification—(i) General. Effec- has not lapsed, he or she shall present tive January 1, 1994, the nonimmigrant alternate evidence described in para- classification of a spouse and/or unmar- graph (g)(1) of this section in order to ried minor child of a Canadian citizen be admitted in TN status. Spouses and/ professional in TC classification will or children of Canadian citizen profes- automatically be converted from B–2 to sionals seeking to extend their stay be- TD nonimmigrant classification. Effec- yond the period indicated on the new tive January 1, 1994, the spouse and/or Form I–94 shall be required to comply unmarried minor child of a Canadian with the requirements of paragraph

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(h)(2) of this section, including remit- been designated to act as a regional tance of the fee prescribed under § 103.7 commissioner. of this chapter. (d) The term district director means an (iv) Nonapplicability of this section to officer of the Immigration and Natu- spouses and/or unmarried minor children ralization Service duly appointed or of self-employed professionals admitted in designated as a district director, or an TC nonimmigrant classification. Para- officer who has been designated to act graphs (l)(2) (i), (ii), and (iii) of this as a district director. section shall not apply to the spouses (e) The term United States means the and/or unmarried minor children of Ca- several States, the District of Colum- nadian citizen professionals in TC non- bia, the Canal Zone, Puerto Rico, the immigrant classification who are self- Virgin Islands, Guam, American employed in this country on January 1, Samoa, Swains Island, the Trust Terri- 1994. Effective January 1, 1994, such tory of the Pacific Islands, and all persons are not eligible for TD classi- other territory and waters, continental fication. and insular, subject to the jurisdiction [58 FR 69212, Dec. 30, 1993] of the United States. (f) The term continental United States PART 215—CONTROLS OF ALIENS means the District of Columbia and the DEPARTING FROM THE UNITED several States, except Alaska and Ha- STATES waii. (g) The term geographical part of the Sec. United States means: (1) The continen- 215.1 Definitions. tal United States, (2) Alaska, (3) Ha- 215.2 Authority of departure-control officer waii, (4) Puerto Rico, (5) the Virgin Is- to prevent alien’s departure from the lands, (6) Guam, (7) the Canal Zone, (8) United States. American Samoa, (9) Swains Island, or 215.3 Alien whose departure is deemed prej- (10) the Trust Teritory of the Pacific udicial to the interests of the United States. Islands. 215.4 Procedure in case of alien prevented (h) The term depart from the United from departing from the United States. States means depart by land, water, or 215.5 Hearing procedure before special in- air: (1) From the United States for any quiry officer. foreign place, or (2) from one geo- 215.6 Departure from the Canal Zone, the graphical part of the United States for Trust Territory of the Pacific Islands, or outlying possessions of the United a separate geographical part of the States. United States: Provided, That a trip or 215.7 Instructions from the Administrator journey upon a public ferry, passenger required in certain cases. vessel sailing coastwise on a fixed AUTHORITY: Sec. 104, 66 Stat. 174, Proc. schedule, excursion vessel, or aircraft, 3004, 18 FR 489; 8 U.S.C. 1104, 3 CFR, 1953 having both termini in the continental Supp. Interpret or apply sec. 215, 66 Stat. 190; United States or in any one of the (8 U.S.C. 1185). other geographical parts of the United SOURCE: 45 FR 65516, Oct. 3, 1980, unless States and not touching any territory otherwise noted. or waters under the jurisdiction or control of a foreign power, shall not be § 215.1 Definitions. deemed a departure from the United For the purpose of this part: States. (a) The term alien means any person (i) The term departure-control officer who is not a citizen or national of the means any immigration officer as de- United States. fined in the regulations of the Immi- (b) The term Commissioner means the gration and Naturalization Service who Commissioner of Immigration and Nat- is designated to supervise the depar- uralization. ture of aliens, or any officer or em- (c) The term regional commissioner ployee of the United States designated means an officer of the Immigration by the Governor of the Canal Zone, the and Naturalization Service duly ap- High Commissioner of the Trust Terri- pointed or designated as a regional tory of the Pacific Islands, or the gov- commissioner, or an officer who has ernor of an outlying possession of the

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United States, to supervise the depar- quired, in the discretion of the departure of aliens. ture-control officer, to be examined (j) The term port of departure means a under oath and to submit for official port in the continental United States, inspection all documents, articles, and Alaska, Guam, Hawaii, Puerto Rico or other property in his possession which the Virgin Islands, designated as a port are being removed from the United of entry by the Attorney General or by States upon, or in connection with, the the Commissioner, or in exceptional alien’s departure. The departure-con- circumstances such other place as the trol officer may permit certain other departure-control officer may, in his persons, including officials of the De- discretion, designate in an individual partment of State and interpreters, to case, or a port in American Samoa, participate in such examination or in- Swains Island, the Canal Zone, or the spection and may exclude from pres- Trust Territory of the Pacific Islands, ence at such examination or inspection designated as a port of entry by the any person whose presence would not chief executive officer thereof. further the objectives of such examina- (k) The term special inquiry officer tion or inspection. The departure-con- shall have the meaning ascribed there- trol officer shall temporarily prevent to in section 101(b)(4) of the Immigra- the departure of any alien who refuses tion and Nationality Act. to submit to such examination or inspection, and may, if necessary to the § 215.2 Authority of departure-control enforcement of this requirement, take officer to prevent alien’s departure possession of the alien’s passport or from the United States. other travel document. (a) No alien shall depart, or attempt to depart, from the United States if his § 215.3 Alien whose departure is departure would be prejudicial to the deemed prejudicial to the interests interests of the United States under of the United States. the provisions of § 215.3. Any departure- The departure from the United control officer who knows or has rea- States of any alien within one or more son to believe that the case of an alien of the following categories shall be in the United States comes within the deemed prejudicial to the interests of provisions of § 215.3 shall temporarily the United States. prevent the departure of such alien (a) Any alien who is in possession of, from the United States and shall serve and who is believed likely to disclose him with a written temporary order di- to unauthorized persons, information recting him not to depart, or attempt concerning the plans, preparation, to depart, from the United States until equipment, or establishments for the notified of the revocation of the order. national defense and security of the (b) The written order temporarily United States. preventing an alien, other than an (b) Any alien who seeks to depart enemy alien, from departing from the from the United States to engage in, or United States shall become final 15 who is likely to engage in, activities of days after the date of service thereof any kind designed to obstruct, impede, upon the alien, unless prior thereto the retard, delay or counteract the effec- alien requests a hearing as hereinafter tiveness of the national defense of the provided. At such time as the alien is United States or the measures adopted served with an order temporarily pre- by the United States or the United Na- venting his departure from the United tions for the defense of any other coun- States, he shall be notified in writing try. concerning the provisions of this para- (c) Any alien who seeks to depart graph, and shall be advised of his right from the United States to engage in, or to request a hearing if entitled thereto who is likely to engage in, activities under § 215.4. In the case of an enemy which would obstruct, impede, retard, alien, the written order preventing de- delay, or counteract the effectiveness parture shall become final on the date of any plans made or action taken by of its service upon the alien. any country cooperating with the Unit- (c) Any alien who seeks to depart ed States in measures adopted to pro- from the United States may be remote the peace, defense, or safety of

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the United States or such other coun- United States in the interests of collec- try. tive security. (d) Any alien who seeks to depart (j) Any alien, where doubt exists from the United States for the purpose whether such alien is departing or of organizing, directing, or participat- seeking to depart from the United ing in any rebellion, insurrection, or States voluntarily except an alien who violent uprising in or against the Unit- is departing or seeking to depart sub- ed States or a country allied with the ject to an order issued in extradition, United States, or of waging war exclusion, or deportation proceedings. against the United States or its allies, (k) Any alien whose case does not fall or of destroying, or depriving the Unit- within any of the categories described ed States of sources of supplies or main paragraphs (a) to (j), inclusive, of terials vital to the national defense of this section, but which involves cir- the United States, or to the effective- cumstances of a similar character ren- ness of the measures adopted by the dering the alien’s departure prejudicial United States for its defense, or for the to the interests of the United States. defense of any other country allied with the United States. § 215.4 Procedure in case of alien pre- (e) Any alien who is subject to reg- vented from departing from the istration for training and service in the United States. Armed Forces of the United States and (a) Any alien, other than an enemy who fails to present a Registration Cer- alien, whose departure has been tempo- tificate (SSS Form No. 2) showing that rarily prevented under the provisions he has complied with his obligation to of § 215.2, may, within 15 days of the register under the Universal Military service upon him of the written order Training and Service Act, as amended. temporarily preventing his departure, (f) Any alien who is a fugitive from request a hearing before a special in- justice on account of an offense punish- quiry officer. The alien’s request for a able in the United States. hearing shall be made in writing and (g) Any alien who is needed in the shall be addressed to the district direc- United States as a witness in, or as a tor having administrative jurisdiction party to, any criminal case under in- over the alien’s place of residence. If vestigation or pending in a court in the the alien’s request for a hearing is United States: Provided, That any alien timely made, the district director shall who is a witness in, or a party to, any schedule a hearing before a special in- criminal case pending in any criminal quiry officer, and notice of such hear- court proceeding may be permitted to ing shall be given to the alien. The no- depart from the United States with the tice of hearing shall, as specifically as consent of the appropriate prosecuting security considerations permit, inform authority, unless such alien is other- the alien of the nature of the case wise prohibited from departing under against him, shall fix the time and the provisions of this part. place of the hearing, and shall inform (h) Any alien who is needed in the the alien of his right to be represented, United States in connection with any at no expense to the Government, by investigation or proceeding being, or counsel of his own choosing. soon to be, conducted by any official (b) Every alien for whom a hearing executive, legislative, or judicial agen- has been scheduled under paragraph (a) cy in the United States or by any gov- of this section shall be entitled: (1) To ernmental committee, board, bureau, appear in person before the special in- commission, or body in the United quiry officer, (2) to be represented by States, whether national, state, or counsel of his own choice, (3) to have local. the opportunity to be heard and to (i) Any alien whose technical or sci- present evidence, (4) to cross-examine entific training and knowledge might the witnesses who appear at the hear- be utilized by an enemy or a potential ing, except that if, in the course of the enemy of the United States to under- examination, it appears that further mine and defeat the military and de- examination may divulge information fensive operations of the United States of a confidential or security nature, or of any nation cooperating with the the special inquiry officer may, in his

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discretion, preclude further examina- certificates or statements are received tion of the witness with respect to such in evidence, the alien may request and, matters, (5) to examine any evidence in in the discretion of the special inquiry possession of the Government which is officer, be given an opportunity to in- to be considered in the disposition of terrogate such officials or persons, by the case, provided that such evidence is deposition or otherwise, at a time and not of a confidential or security nature place and in a manner fixed by the spe- the disclosure of which would be preju- cial inquiry officer: Provided, That dicial to the interests of the United when in the judgment of the special in- States, (6) to have the time and oppor- quiry officer any evidence relative to tunity to produce evidence and wit- the disposition of the case is of a con- nesses on his own behalf, and (7) to rea- fidential or security nature the disclo- sonable continuances, upon request, for sure of which would be prejudicial to good cause shown. the interests of the United States, such (c) Any special inquiry officer who is evidence shall not be presented at the assigned to conduct the hearing pro- hearing but shall be taken into consid- vided for in this section shall have the eration in arriving at a decision in the authority to: (1) Administer oaths and case. affirmations, (2) present and receive (5) The alien may present such addi- evidence, (3) interrogate, examine, and tional evidence, including the testi- cross examine under oath or affirma- mony of witnesses, as is pertinent and tion both the alien and witnesses, (4) available. rule upon all objections to the intro- (b) A complete verbatim transcript of duction of evidence or motions made the hearing, except statements made during the course of the hearing, (5) off the record shall be recorded. The take or cause depositions to be taken, alien shall be entitled, upon request, to (6) issue subpoenas, and (7) take any the loan of a copy of the transcript, further action consistent with applica- without cost, subject to reasonable ble provisions of law, Executive orders, conditions governing its use. proclamations, and regulations. (c) Following the completion of the hearing, the special inquiry officer § 215.5 Hearing procedure before spe- shall make and render a recommended cial inquiry officer. decision in the case, which shall be (a) The hearing before the special in- governed by and based upon the evi- quiry officer shall be conducted in ac- dence presented at the hearing and any cordance with the following procedure: evidence of a confidential or security (1) The special inquiry officer shall nature which the Government may advise the alien of the rights and privi- have in its possession. The decision of leges accorded him under the provi- the special inquiry officer shall rec- sions of § 215.4. ommend: (1) That the temporary order (2) The special inquiry officer shall preventing the departure of the alien enter of record: (i) A copy of the order from the United States be made final, served upon the alien temporarily pre- or (2) that the temporary order preventing his departure from the United venting the departure of the alien from States, and (ii) a copy of the notice of the United States be revoked. This rec- hearing furnished the alien. ommended decision of the special in- (3) The alien shall be interrogated by quiry officer shall be made in writing the special inquiry officer as to the and shall set forth the officer’s reasons matters considered pertinent to the for such decision. The alien concerned proceeding, with opportunity reserved shall at his request be furnished a copy to the alien to testify thereafter in his of the recommended decision of the own behalf, if he so chooses. special inquiry officer, and shall be al- (4) The special inquiry officer shall lowed a reasonable time, not to exceed present on behalf of the Government 10 days, in which to submit representa- such evidence, including the testimony tions with respect thereto in writing. of witnesses and the certificates or (d) As soon as practicable after the written statements of Government offi- completion of the hearing and the ren- cials or other persons, as may be nec- dering of a decision by the special in- essary and available. In the event such quiry officer, the district director shall

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forward the entire record of the case, aliens from the United States, any including the recommended decision of alien who seeks to depart from the the special inquiry officer and any Canal Zone, the Trust Territory of the written representations submitted by Pacific Islands, or an outlying posses- the alien, to the regional commissioner sion of the United States shall comply having jurisdiction over his district. with such other restrictions and prohi- After reviewing the record, the re- bitions as may be imposed by regula- gional commissioner shall render a de- tions prescribed, with the concurrence cision in the case, which shall be based of the Administrator of the Bureau of upon the evidence in the record and on Security and Consular Affairs and the any evidence or information of a con- Commissioner, by the Governor of the fidential or security nature which he Canal Zone, the High Commissioner of deems pertinent. Whenever any deci- the Trust Territory of the Pacific Is- sion is based in whole or in part on lands, or by the governor of an outly- confidential or security information ing possession of the United States, re- not included in the record, the decision spectively. No alien shall be prevented shall state that such information was from departing from such zone, terri- considered. A copy of the regional com- tory, or possession without first being missioner’s decision shall be furnished accorded a hearing as provided in the alien, or his attorney or represent- §§ 215.4 and 215.5. ative. No administrative appeal shall (b) The Governor of the Canal Zone, lie from the regional commissioner’s the High Commissioner of the Trust decision. Territory of the Pacific Islands, or the (e) Notwithstanding any other provi- governor of any outlying possession of sion of this part, the Administrator of the United States shall have the au- the Bureau of Security and Consular thority to designate any employee or Affairs referred to in section 104(b) of class of employees of the United States the Immigration and Nationality Act, as hearing officers for the purpose of or such other officers of the Depart- conducting the hearing referred to in ment of State as he may designate, paragraph (a) of this section. The hear- after consultation with the Commis- ing officer so designated shall exercise sioner, or such other officers of the Im- the same powers, duties, and functions migration and Naturalization Service as are conferred upon special inquiry as he may designate, may at any time officers under the provisions of this permit the departure of an individual part. The chief executive officer of alien or of a group of aliens from the United States if he determines that such zone, territory, or possession such action would be in the national shall, in lieu of the regional commis- interest. If the Administrator specifi- sioner, review the recommended deci- cally requests the Commissioner to sion of the hearing officer, and shall prevent the departure of a particular render a decision in any case referred alien or of a group of aliens, the Com- to him, basing it on evidence in the missioner shall not permit the depar- record and on any evidence or informa- ture of such alien or aliens until he has tion of a confidential or a security na- consulted with the Administrator. ture which he deems pertinent. (f) In any case arising under §§ 215.1 § 215.7 Instructions from the Adminis- to 215.7, the Administrator shall, at his trator required in certain cases. request, be kept advised, in as much detail as he may indicate is necessary, In the absence of appropriate instruc- of the facts and of any action taken or tions from the Administrator of the proposed. Bureau of Security and Consular Af- fairs, departure-control officers shall § 215.6 Departure from the Canal Zone, not exercise the authority conferred by the Trust Territory of the Pacific Is- § 215.2 in the case of any alien who lands, or outlying possessions of the seeks to depart from the United States United States. in the status of a nonimmigrant under (a) In addition to the restrictions and section 101(a)(15) (A) or (G) of the Im- prohibitions imposed by the provisions migration and Nationality Act, or in of this part upon the departure of the status of a nonimmigrant under

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section 11(3), 11(4), or 11(5) of the Agree- apply for naturalization (if otherwise ment between the United Nations and eligible), the right to file petitions on the United States of America regarding behalf of qualifying relatives, the privi- the Headquarters of the United Nations lege of residing permanently in the (61 Stat. 756): Provided, That in cases of United States as an immigrant in ac- extreme urgency, where the national cordance with the immigration laws, security so requires, a departure-con- such status not having changed; the trol officer may preliminarily exercise duty to register with the Selective the authority conferred by § 215.2 pend- Service System, when required; and the ing the outcome of consultation with responsibility for complying with all the Administrator, which shall be un- laws and regulations of the United dertaken immediately. In all cases States. All references within this chap- arising under this section, the decision ter to lawful permanent residents of the Administrator shall be control- apply equally to conditional perma- ling: Provided, That any decision to nent residents, unless otherwise speci- prevent the departure of an alien shall fied. The conditions of section 216 of be based upon a hearing and record as the Act shall not apply to lawful per- prescribed in this part. manent resident status based on a self- petitioning relationship under section PART 216—CONDITIONAL BASIS OF 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the LAWFUL PERMANENT RESIDENCE Act or based on eligibility as the deriv- STATUS ative child of a self-petitioning spouse under section 204(a)(1)(A)(iii) or Sec. 204(a)(1)(B)(ii) of the Act, regardless of 216.1 Definition of conditional permanent resident. the date on which the marriage to the 216.2 Notification requirements. abusive citizen or lawful permanent 216.3 Termination of conditional resident resident occurred. status. [53 FR 30018, Aug. 10, 1988, as amended at 59 216.4 Joint petition to remove conditional FR 26590, May 23, 1994; 61 FR 13079, Mar. 26, basis of lawful permanent resident status 1996] for alien spouse. 216.5 Waiver of requirement to file joint petition to remove conditions by alien § 216.2 Notification requirements. spouse. (a) When alien acquires status of condi- 216.6 Petition by entrepreneur to remove tional permanent resident. At the time conditional basis of lawful permanent an alien acquires conditional perma- resident status. nent residence through admission to AUTHORITY: 8 U.S.C. 1101, 1103, 1154, 1184, the United States with an immigrant 1186a, 1186b, and 8 CFR part 2. visa or adjustment of status under sec- SOURCE: 53 FR 30018, Aug. 10, 1988, unless tion 245 of the Act, the Service shall otherwise noted. notify the alien of the conditional basis of the alien’s status, of the require- § 216.1 Definition of conditional per- ment that the alien apply for removal manent resident. of the conditions within the ninety A conditional permanent resident is an days immediately preceding the second alien who has been lawfully admitted anniversary of the alien’s having been for permanent residence within the granted such status, and that failure to meaning of section 101(a)(20) of the Act, apply for removal of the conditions except that a conditional permanent will result in automatic termination of resident is also subject to the condi- the alien’s lawful status in the United tions and responsibilities set forth in States. section 216 or 216A of the Act, which- (b) When alien is required to apply for ever is applicable, and part 216 of this removal of the conditional basis of lawful chapter. Unless otherwise specified, the permanent resident status. Approxi- rights, privileges, responsibilities and mately 90 days before the second anni- duties which apply to all other lawful versary of the date on which the alien permanent residents apply equally to obtained conditional permanent resi- conditional permanent residents, in- dence, the Service should notify the cluding but not limited to the right to alien a second time of the requirement

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that the alien and the petitioning ment in this country), shall take effect spouse or alien entrepreneur must file as of the date of such determination by a petition to remove the conditional the director, although the alien may basis of the alien’s lawful permanent request a review of such determination residence. Such notification shall be in deportation proceedings. In addition mailed to the alien’s last known ad- to the notice of termination, the direc- dress. tor shall issue an order to show cause (c) Effect of failure to provide notifica- why the alien should not be deported tion. Failure of the Service to provide from the United States, in accordance notification as required by either para- with part 242 of this chapter. During graph (a) or (b) of this section does not the ensuing deportation proceedings, relieve the alien and the petitioning the alien may submit evidence to rebut spouse, or alien entrepreneur of the re- the determination of the director. The quirement to file a petition to remove burden of proof shall be on the Service conditions within the 90 days imme- to establish, by a preponderance of the diately preceding the second anniver- evidence, that one or more of the con- sary of the date on which the alien ob- ditions in section 216(b)(1) or 216A(b)(1) tained permanent residence. of the Act, whichever is applicable, are true, or that an alien entrepreneur who [53 FR 30018, Aug. 10, 1988, as amended at 59 FR 26590, May 23, 1994] was admitted pursuant to section 203(b)(5) of the Act obtained his or her § 216.3 Termination of conditional investment capital through other than resident status. legal means (such as through the sale (a) During the two-year conditional pe- of illegal drugs). riod. The director shall send a formal (b) Determination of fraud after two written notice to the conditional per- years. If, subsequent to the removal of manent resident of the termination of the conditional basis of an alien’s per- the alien’s conditional permanent resi- manent resident status, the director dent status if the director determines determines that an alien spouse ob- that any of the conditions set forth in tained permanent resident status section 216(b)(1) or 216A(b)(1) of the through a marriage which was entered Act, whichever is applicable, are true, into for the purpose of evading the im- or it becomes known to the govern- migration laws or an alien entre- ment that an alien entrepreneur who preneur obtained permanent resident was admitted pursuant to section status through a commercial enter- 203(b)(5) of the Act obtained his or her prise which was improper under section investment capital through other than 216A(b)(1) of the Act, the director may legal means (such as through the sale institute rescission proceedings pursu- of illegal drugs). If the Service issues a ant to section 246 of the Act (if other- Notice of Intent to Terminate an wise appropriate) or deportation pro- alien’s conditional resident status, the ceedings under section 242 of the Act. director shall not adjudicate Form I– [59 FR 26590, May 23, 1994] 751 or Form I–829 until it has been determined that the alien’s status shall § 216.4 Joint petition to remove condi- not be terminated. During this time, tional basis of lawful permanent the alien shall continue to be a lawful resident status for alien spouse. conditional permanent resident with (a) Filing the petition—(1) General pro- all the rights, privileges, and respon- cedures. Within the 90-day period imme- sibilities provided to persons possess- diately preceding the second anniver- ing such status. Prior to issuing the sary of the date on which the alien ob- Notice of Termination, the director tained permanent residence, the alien shall provide the alien with an oppor- and the alien’s spouse who filed the tunity to review and rebut the evidence original immigrant visa petition or fi- upon which the decision is to be based, ance/fiancee petition through which in accordance with § 103.2(b)(2) of this the alien obtained permanent residence chapter. The termination of status, and must file a Petition to Remove the all of the rights and privileges con- Conditions on Residence (Form I–751) comitant thereto (including authoriza- with the Service. The petition shall be tion to accept or continue in employ- filed within this time period regardless

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of the amount of physical presence ments contained in the Act. Further- which the alien has accumulated in the more, if the documentation submitted United States. Before Form I–751 may in support of the petition includes affi- be considered as properly filed, it must davits of third parties having knowl- be accompanied by the fee required edge of the bona fides of the marital re- under § 103.7(b) of this chapter and by lationship, the petitioner must arrange documentation as described in para- for the affiants to be present at the graph (a)(5) of this section, and it must interview, at no expense to the govern- be properly signed by the alien and the ment. Once the petition has been prop- alien’s spouse. If the joint petition can- erly filed, the alien may travel outside not be filed due to the termination of the United States and return if in pos- the marriage through annulment, di- session of documentation as set forth vorce, or the death of the petitioning in § 211.1(b)(1) of this chapter, provided spouse, or if the petitioning spouse re- the alien and the petitioning spouse fuses to join in the filing of the peti- comply with the interview require- tion, the conditional permanent resi- ments described in § 216.4(b). An alien dent may apply for a waiver of the re- who is not physically present in the quirement to file the joint petition in United States during the filing period accordance with the provisions of but subsequently applies for admission § 216.5 of this part. Upon receipt of a to the United States shall be processed properly filed Form I–751, the alien’s in accordance with § 235.11 of this chap- conditional permanent resident status ter. shall be extended automatically, if nec- (5) Documentation. Form I–751 shall be essary, until such time as the director accompanied by evidence that the mar- has adjudicated the petition. riage was not entered into for the pur- (2) Dependent children. Dependent pose of evading the immigration laws children of a conditional permanent of the United States. Such evidence resident who acquired conditional per- may include: manent resident status concurrently (i) Documentation showing joint with the parent may be included in the ownership of property; joint petition filed by the parent and (ii) Lease showing joint tenancy of a the parent’s petitioning spouse. A child common residence; shall be deemed to have acquired con- (iii) Documentation showing com- ditional residence status concurrently mingling of financial resources; with the parent if the child’s residence (iv) Birth certificates of children was acquired on the same date or with- born to the marriage; in 90 days thereafter. Children who (v) Affidavits of third parties having cannot be included in a joint petition knowledge of the bona fides of the mar- filed by the parent and parent’s peti- ital relationship, or tioning spouse due to the child’s not (vi) Other documentation establish- having acquired conditional resident ing that the marriage was not entered status concurrently with the parent, into in order to evade the immigration the death of the parent, or other rea- laws of the United States. sons may file a separate Petition to (6) Termination of status for failure to Remove the Conditions on Residence file petition. Failure to properly file (Form I–751). Form I–751 within the 90-day period im- (3) Jurisdiction. Form I–751 shall be mediately preceding the second anni- filed with the director of the regional versary of the date on which the alien service center having jurisdiction over obtained lawful permanent residence the alien’s place of residence. on a conditional basis shall result in (4) Physical presence at time of filing. A the automatic termination of the petition may be filed regardless of alien’s permanent residence status and whether the alien is physically present the initiation of proceedings to remove in the United States. However, if the the alien from the United States. In alien is outside the United States at such proceedings the burden shall be on the time of filing, he or she must re- the alien to establish that he or she turn to the United States, with his or complied with the requirement to file her spouse and dependent children, to the joint petition within the des- comply with the interview require- ignated period. Form I–751 may be filed

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after the expiration of the 90-day pe- will be automatically terminated as of riod only if the alien establishes to the the second anniversary of the date on satisfaction of the director, in writing, which the alien obtained permanent that there was good cause for the fail- residence. The alien shall be provided ure to file Form I–751 within the re- with written notification of the termi- quired time period. If the joint petition nation and the reasons therefor, and an is filed prior to the jurisdiction vesting order to show cause shall be issued with the immigration judge in deporta- placing the alien under deportation tion proceedings and the director ex- proceedings. The alien may seek review cuses the late filing and approves the of the decision to terminate his or her petition, he or she shall restore the status in such proceedings, but the bur- alien’s permanent residence status, re- den shall be on the alien to establish move the conditional basis of such sta- compliance with the interview require- tus and cancel any outstanding order ments. If the alien submits a written to show cause in accordance with § 242.7 request that the interview be resched- of this chapter. If the joint petition is uled or that the interview be waived, not filed until after jurisdiction vests and the director determines that there with the immigration judge, the immi- is good cause for granting the request, gration judge may terminate the mat- the interview may be rescheduled or ter upon joint motion by the alien and waived, as appropriate. If the interview the Service. is rescheduled at the request of the pe- (b) Interview—(1) Authority to waive titioners, the Service shall not be re- interview. The director of the regional quired to conduct the interview within service center shall review the Form I– the 90-day period following the filing of 751 filed by the alien and the alien’s the petition. spouse to determine whether to waive (c) Adjudication of petition. The direc- the interview required by the Act. If tor shall adjudicate the petition within satisfied that the marriage was not for 90 days of the date of the interview, un- the purpose of evading the immigration less the interview is waived in accord- laws, the regional service center direc- ance with paragraph (b)(1) of this sector may waive the interview and ap- tion. In adjudicating the petition the prove the petition. If not so satisfied, director shall determine whether— then the regional service center direc- (1) The qualifying marriage was en- tor shall forward the petition to the tered into in accordance with the laws district director having jurisdiction of the place where the marriage took over the place of the alien’s residence place; so that an interview of both the alien (2) The qualifying marriage has been and the alien’s spouse may be con- judicially annulled or terminated, ducted. The director must either waive other than through the death of a the requirement for an interview and spouse; adjudicate the petition or arrange for (3) The qualifying marriage was en- an interview within 90 days of the date tered into for the purpose of procuring on which the petition was properly permanent residence status for the filed. alien; or (2) Location of interview. Unless (4) A fee or other consideration was waived, an interview on the Form I–751 given (other than a fee or other consid- shall be conducted by an immigration eration to an attorney for assistance in examiner or other officer so designated preparation of a lawful petition) in by the district director at the district connection with the filing of the peti- office, files control office or suboffice tion through which the alien obtained having jurisdiction over the residence conditional permanent residence. of the joint petitioners. If derogatory information is deter- (3) Termination of status for failure to mined regarding any of these issues, appear for interview. If the conditional the director shall offer the petitioners resident alien and/or the petitioning the opportunity to rebut such informa- spouse fail to appear for an interview tion. If the petitioners fail to overcome in connection with the joint petition such derogatory information the direc- required by section 216(c) of the Act, tor may deny the joint petition, termi- the alien’s permanent residence status nate the alien’s permanent residence

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and issue an order to show cause to ini- conditional basis of his or her perma- tiate deportation proceedings. If derog- nent resident status may file a Peti- atory information not relating to any tion to Remove the Conditions on Resi- of these issues is determined during the dence (Form I–751), if the alien requests course of the interview, such informa- a waiver, was not at fault in failing to tion shall be forwarded to the inves- meet the filing requirement, and the tigations unit for appropriate action. If conditional resident alien is able to es- no unresolved derogatory information tablish that: is determined relating to these issues, (1) Deportation from the United the petition shall be aproved and the States would result in extreme hard- conditional basis of the alien’s perma- ship; nent residence status removed, regard- (2) The marriage upon which his or less of any action taken or con- her status was based was entered into templated regarding other possible in good faith by the conditional resi- grounds for deportation. dent alien, but the marriage was termi- (d) Decision—(1) Approval. If the direc- nated other than by death, and the con- tor approves the joint petition he or ditional resident was not at fault in she shall provide written notice of the failing to file a timely petition; or decision to the alien and shall require (3) The qualifying marriage was en- the alien to report to the appropriate tered into in good faith by the condi- office of the Service for processing for tional resident but during the marriage a new Alien Registration Receipt Card the alien spouse or child was battered (if necessary), at which time the alien by or subjected to extreme cruelty shall surrender any Alien Registration committed by the citizen or permanent Receipt Card previously issued. resident spouse or parent. (2) Denial. If the director denies the (b) Fee. Form I–751 shall be accom- joint petition, he or she shall provide panied by the appropriate fee required written notice to the alien of the deci- under § 103.7(b) of this Chapter. sion and the reason(s) therefor and (c) Jurisdiction. Form I–751 shall be shall issue an order to show cause why filed with the regional service center the alien should not be deported from director having jurisdiction over the the United States. The alien’s lawful alien’s place of residence. permanent resident status shall be ter- (d) Interview. The regional service minated as of the date of the director’s center director may refer the applica- written decision. The alien shall also tion to the appropriate district, files be instructed to surrender any Alien control office or suboffice and require Registration Receipt Card previously that the alien appear for an interview issued by the Service. No appeal shall in connection with the application for lie from the decision of the director; a waiver. The director shall deny the however, the alien may seek review of application and initiate deportation the decision in deportation proceed- proceedings if the alien fails to appear ings. In such proceedings the burden of for the interview as required, unless proof shall be on the Service to estab- the alien establishes good cause for lish, by a preponderance of the evi- such failure and the interview is re- dence, that the facts and information scheduled. set forth by the petitioners are not (e) Adjudication of waiver application— true and that the petition was properly (1) Application based on claim of hard- denied. ship. In considering an application for a [53 FR 30018, Aug. 10, 1988, as amended at 54 waiver based upon an alien’s claim that FR 30369, July 20, 1989; 59 FR 26590, May 23, extreme hardship would result from 1994] the alien’s deportation from the United States, the director shall take into ac- § 216.5 Waiver of requirement to file count only those factors which arose joint petition to remove conditions subsequent to the alien’s entry as a by alien spouse. conditional permanent resident. The (a) General. A conditional resident director shall bear in mind that any de- alien who is unable to meet the re- portation from the United States is quirements under section 216 of the Act likely to result in a certain degree of for a joint petition for removal of the hardship, and that only in those cases

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where the hardship is extreme should parted the United States after termi- the application for a waiver be granted. nation of resident status or under an The burden of establishing that ex- order of deportation may apply for the treme hardship exists rests solely with waiver. The conditional resident may the applicant. apply for the waiver regardless of his (2) Application for waiver based upon or her present marital status. The con- the alien’s claim that the marriage was ditional resident may still be residing entered into in good faith. In considering with the citizen or permanent resident whether an alien entered into a quali- spouse, or may be divorced or sepa- fying marriage in good faith, the direc- rated. tor shall consider evidence relating to (iii) Evidence of physical abuse may the amount of commitment by both include, but is not limited to, expert parties to the marital relationship. testimony in the form of reports and Such evidence may include— affidavits from police, judges, medical (i) Documentation relating to the de- personnel, school officials and social gree to which the financial assets and service agency personnel. The Service liabilities of the parties were com- must be satisfied with the credibility bined; of the sources of documentation sub- (ii) Documentation concerning the mitted in support of the application. length of time during which the parties (iv) The Service is not in a position cohabited after the marriage and after to evaluate testimony regarding a the alien obtained permanent resi- claim of extreme mental cruelty pro- dence; vided by unlicensed or untrained indi- (iii) Birth certificates of children viduals. Therefore, all waiver applica- born to the marriage; and tions based upon claims of extreme (iv) Other evidence deemed pertinent mental cruelty must be supported by by the director. the evaluation of a professional recog- (3) Application for waiver based on nized by the Service as an expert in the alien’s claim of having been battered or field. An evaluation which was ob- subjected to extreme mental cruelty. A tained in the course of the divorce pro- conditional resident who entered into ceedings may be submitted if it was the qualifying marriage in good faith, provided by a professional recognized and who was battered or was the sub- by the Service as an expert in the field. ject of extreme cruelty or whose child (v) The evaluation must contain the was battered by or was the subject of professional’s full name, professional extreme cruelty perpetrated by the address and license number. It must United States citizen or permanent also identify the licensing, certifying, resident spouse during the marriage, or registering authority. The Service may request a waiver of the joint filing retains the right to verify the profes- requirement. The conditional resident sional’s license. parent of a battered or abused child (vi) The Service’s decision on ex- may apply for the waiver regardless of treme mental cruelty waivers will be the child’s citizenship or immigration based upon the evaluation of the recog- status. nized professional. The Service re- (i) For the purpose of this chapter serves the right to request additional the phrase ‘‘was battered by or was the evaluations from expert witnesses cho- subject of extreme cruelty’’ includes, sen by the Service. Requests for addi- but is not limited to, being the victim tional evaluations must be authorized of any act or threatened act of vio- by the Assistant Regional Commis- lence, including any forceful detention, sioner for Adjudications. which results or threatens to result in (vii) Licensed clinical social workers, physical or mental injury. Psycho- psychologists, and psychiatrists are logical or sexual abuse or exploitation, professionals recognized by the Service including rape, molestation, incest (if for the purpose of this section. A clini- the victim is a minor) or forced pros- cal social worker who is not licensed titution shall be considered acts of vio- only because the state in which he or lence. she practices does not provide for li- (ii) A conditional resident or former censing will be considered a licensed conditional resident who has not de- professional recognized by the Service

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if he or she is included in the Register manent resident. Before Form I–829 of Clinical Social Workers published by may be considered as properly filed, it the National Association of Social must be accompanied by the fee re- Workers or is certified by the Amer- quired under § 103.7(b)(1) of this chap- ican Board of Examiners in Clinical So- ter, and by documentation as described cial Work. in paragraph (a)(4) of this section, and (viii) As directed by the statute, the it must be properly signed by the alien. information contained in the applica- Upon receipt of a properly filed Form tion and supporting documents shall I–829, the alien’s conditional perma- not be released without a court order nent resident status shall be extended or the written consent of the applicant; automatically, if necessary, until such or, in the case of a child, the written time as the director has adjudicated consent of the parent or legal guardian the petition. The entrepreneur’s spouse who filed the waiver application on the and children should be included in the child’s behalf. Information may be re- petition to remove conditions. Children leased only to the applicant, his or her who have reached the age of twenty- authorized representative, an officer of one or who have married during the pe- the Department of Justice, or any fed- riod of conditional permanent resi- eral or State law enforcement agency. dence and the former spouse of an en- Any information provided under this trepreneur, who was divorced from the part may be used for the purposes of entrepreneur during the period of con- enforcement of the Act or in any crimi- ditional permanent residence, may be nal proceeding. included in the alien entrepreneur’s pe- (f) Decision. The director shall pro- tition or may file a separate petition. vide the alien with written notice of (2) Jurisdiction. Form I–829 must be the decision on the application for filed with the regional service center waiver. If the decision is adverse, the having jurisdiction over the location of director shall advise the alien of the the alien entrepreneur’s commercial reasons therefor, notify the alien of the enterprise in the United States. termination of his or her permanent (3) Physical presence at time of filing. A residence status, instruct the alien to petition may be filed regardless of surrender any Alien Registration Re- whether the alien is physically present ceipt Card issued by the Service and in the United States. However, if the issue an order to show cause placing alien is outside the United States at the alien under deportation proceed- the time of filing, he or she must re- ings. No appeal shall lie from the deci- turn to the United States, with his or sion of the director; however, the alien her spouse and children, if necessary, may seek review of such decision in de- to comply with the interview require- portation proceedings. ments contained in the Act. Once the [53 FR 30018, Aug. 10, 1988, as amended at 56 petition has been properly filed, the FR 22637, May 16, 1991; 59 FR 26591, May 23, alien may travel outside the United 1994] States and return if in possession of documentation as set forth in § 216.6 Petition by entrepreneur to re- § 211.1(b)(1) of this chapter, provided the move conditional basis of lawful alien complies with the interview re- permanent resident status. quirements described in paragraph (b) (a) Filing the petition—(1) General proof this section. An alien who is not cedures. A petition to remove the con- physically present in the United States ditional basis of the permanent resi- during the filing period but subse- dent status of an alien accorded condi- quently applies for admission to the tional permanent residence pursuant to United States shall be processed in ac- section 203(b)(5) of the Act must be cordance with § 235.11 of this chapter. filed by the alien entrepreneur on (4) Documentation. The petition for Form I–829, Petition by Entrepreneur removal of conditions must be accom- to Remove Conditions. The alien entre- panied by the following evidence: preneur must file Form I–829 within (i) Evidence that a commercial enter- the 90-day period preceding the second prise was established by the alien. anniversary of his or her admission to Such evidence may include, but is not the United States as a conditional per- limited to, Federal income tax returns;

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(ii) Evidence that the alien invested the burden of proof shall rest with the or was actively in the process of invest- alien to show by a preponderance of the ing the requisite capital. Such evidence evidence that he or she complied with may include, but is not limited to, an the requirement to file the petition audited financial statement or other within the designated period. The di- probative evidence; and rector may deem the petition to have (iii) Evidence that the alien sus- been filed prior to the second anniver- tained the actions described in para- sary of the alien’s obtaining condi- graph (a)(4)(i) and (a)(4)(ii) of this sec- tional permanent resident status and tion throughout the period of the accept and consider a late petition if alien’s residence in the United States. the alien demonstrates to the direc- The alien will be considered to have tor’s satisfaction that failure to file a sustained the actions required for re- timely petition was for good cause and moval of conditions if he or she has, in due to extenuating circumstances. If good faith, substantially met the cap- the late petition is filed prior to juris- ital investment requirement of the diction vesting with the immigration statute and continuously maintained judge in deportation proceedings and his or her capital investment over the the director excuses the late filing and two years of conditional residence. approves the petition, he or she shall Such evidence may include, but is not restore the alien’s permanent resident limited to, bank statements, invoices, status, remove the conditional basis of receipts, contracts, business licenses, such status, and cancel any outstand- Federal or State income tax returns, ing order to show cause in accordance and Federal or State quarterly tax with § 242.7 of this chapter. If the peti- statements. tion is not filed until after jurisdiction (iv) Evidence that the alien created vests with the immigration judge, the or can be expected to create within a immigration judge may terminate the reasonable time ten full-time jobs for matter upon joint motion by the alien qualifying employees. In the case of a and the Service. ‘‘troubled business’’ as defined in 8 CFR 204.6(j)(4)(ii), the alien entre- (6) Death of entrepreneur and effect on preneur must submit evidence that the spouse and children. If an entrepreneur commercial enterprise maintained the dies during the prescribed two-year pe- number of existing employees at no riod of conditional permanent resi- less than the pre-investment level for dence, the spouse and children of the the period following his or her admis- entrepreneur will be eligible for re- sion as a conditional permanent resi- moval of conditions if it can be dem- dent. Such evidence may include pay- onstrated that the conditions set forth roll records, relevant tax documents, in paragraph (a)(4) of this section have and Forms I–9. been met. (5) Termination of status for failure to (b) Petition review—(1) Authority to file petition. Failure to properly file waive interview. The director of the Form I–829 within the 90-day period im- service center shall review the Form I– mediately preceding the second anni- 829 and the supporting documents to versary of the date on which the alien determine whether to waive the inter- obtained lawful permanent residence view required by the Act. If satisfied on a conditional basis shall result in that the requirements set forth in the automatic termination of the paragraph (c)(1) of this section have alien’s permanent resident status and been met, the service center director the initiation of deportation proceed- may waive the interview and approve ings. The director shall send a written the petition. If not so satisfied, then notice of termination and an order to the service center director shall for- show cause to an alien entrepreneur ward the petition to the district direc- who fails to timely file a petition for tor having jurisdiction over the loca- removal of conditions. No appeal shall tion of the alien entrepreneur’s com- lie from this decision; however, the mercial enterprise in the United States alien may request a review of the de- so that an interview of the alien entre- termination during deportation pro- preneur may be conducted. The direc- ceedings. In deportation proceedings, tor must either waive the requirement

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for an interview and adjudicate the pe- If the interview is rescheduled at the tition or arrange for an interview with- request of the alien, the Service shall in 90 days of the date on which the pe- not be required to conduct the inter- tition was properly filed. view within the 90-day period following (2) Location of interview. Unless the filing of the petition. waived, an interview relating to the (c) Adjudication of petition. (1) The de- Form I–829 shall be conducted by an cision on the petition shall be made immigration examiner or other officer within 90 days of the date of filing or so designated by the district director within 90 days of the interview, which- at the district office that has jurisdic- ever is later. In adjudicating the petition over the location of the alien en- tion, the director shall determine trepreneur’s commercial enterprise in whether: the United States. (3) Termination of status for failure to (i) A commercial enterprise was es- appear for interview. If the alien fails to tablished by the alien; appear for an interview in connection (ii) The alien invested or was ac- with the petition when requested by tively in the process of investing the the Service, the alien’s permanent resi- requisite capital; and dent status will be automatically ter- (iii) The alien sustained the actions minated as of the second anniversary described in paragraphs (c)(1)(i) and of the date on which the alien obtained (c)(1)(ii) of this section throughout the permanent residence. The alien will be period of the alien’s residence in the provided with written notification of United States. The alien will be consid- the termination and the reasons there- ered to have sustained the actions re- fore, and an order to show cause shall quired for removal of conditions if he be issued placing the alien under depor- or she has, in good faith, substantially tation proceedings. The alien may seek met the capital investment require- review of the decision to terminate his ment of the statute and continuously or her status in such proceedings, but maintained his or her capital invest- the burden shall be on the alien to es- ment over the two years of conditional tablish by a preponderance of the evi- residence. dence that he or she complied with the (iv) The alien created or can be ex- interview requirements. If the alien has failed to appear for a scheduled pected to create within a reasonable interview, he or she may submit a writ- period of time ten full-time jobs to ten request to the district director ask- qualifying employees. In the case of a ing that the interview be rescheduled ‘‘troubled business’’ as defined in 8 or that the interview be waived. That CFR 204.6(j)(4)(ii), the alien maintained request should explain his or her fail- the number of existing employees at no ure to appear for the scheduled inter- less than the pre-investment level for view, and if a request for waiver of the the previous two years. interview, the reasons such waiver (2) If derogatory information is deter- should be granted. If the district direc- mined regarding any of these issues or tor determines that there is good cause it becomes known to the government for granting the request, the interview that the entrepreneur obtained his or may be rescheduled or waived, as ap- her investment funds through other propriate. If the district director than legal means (such as through the waives the interview, he or she shall sale of illegal drugs), the director shall restore the alien’s conditional perma- offer the alien entrepreneur the oppor- nent resident status, cancel any out- tunity to rebut such information. If standing order to show cause in accord- the alien entrepreneur fails to over- ance with § 242.7 of this chapter, and come such derogatory information or proceed to adjudicate the alien’s peti- evidence the investment funds were ob- tion. If the district director resched- tained through other than legal means, ules that alien’s interview, he or she shall restore the alien’s conditional the director may deny the petition, permanent resident status, and cancel terminate the alien’s permanent resi- any outstanding order to show cause in dent status, and issue an order to show accordance with § 242.7 of this chapter. cause. If derogatory information not

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relating to any of these issues is deter- PART 217—VISA WAIVER PILOT mined during the course of the inter- PROGRAM view, such information shall be forwarded to the investigations unit for Sec. appropriate action. If no unresolved de- 217.1 Scope. rogatory information is determined re- 217.2 Eligibility. lating to these issues, the petition 217.3 Maintenance of status. 217.4 Excludability and deportability. shall be approved and the conditional 217.5 Designated countries. basis of the alien’s permanent resident 217.6 Carrier agreements. status removed, regardless of any ac- AUTHORITY: 8 U.S.C. 1103, 1187; 8 CFR part tion taken or contemplated regarding 2. other possible grounds for deportation. SOURCE: 53 FR 24901, June 30, 1988, unless (d) Decision—(1) Approval. If, after ini- otherwise noted. tial review or after the interview, the director approves the petition, he or § 217.1 Scope. she will remove the conditional basis The Visa Waiver Pilot Program is es- of the alien’s permanent resident sta- tablished solely pursuant to the provi- tus as of the second anniversary of the sions of section 217 of the Act and sub- alien’s entry as a conditional perma- ject to all conditions and restrictions nent resident. He or she shall provide stipulated in that section, including written notice of the decision to the those relating to the length of the pro- alien and shall require the alien to re- gram and the number of countries port to the appropriate district office which may be designated as Visa Waiv- for processing for a new Alien Registra- er Pilot Program countries. tion Receipt Card, Form I–551, at which time the alien shall surrender any § 217.2 Eligibility. Alien Registration Receipt Card pre- (a) General. Notwithstanding the pro- viously issued. visions of section 212(a)(7)(B)(i)(II) of (2) Denial. If, after initial review or the Act, a nonimmigrant visa may be after the interview, the director denies waived for an alien who is a national of the petition, he or she shall provide a country enumerated in § 217.5 of this written notice to the alien of the deci- part regardless of place of residence or point of embarkation who: sion and the reason(s) therefor, and (1) Is classifiable as a visitor as de- shall issue an order to show cause why fined in section 101(a)(15)(B) of the Act; the alien should not be deported from (2) Seeks admission to the United the United States. The alien’s lawful States for a period not to exceed ninety permanent resident status and that of days; his or her spouse and any children shall (3) Is in possession of a valid passport be terminated as of the date of the di- issued by a designated country; rector’s written decision. The alien (4) Is in possession of a completed shall also be instructed to surrender and signed Form I–94W, Nonimmigrant any Alien Registration Receipt Card Visa Waiver Arrival/Departure Form; previously issued by the Service. No (5) Waives any right otherwise pro- appeal shall lie from this decision; vided in the Act to administrative or however, the alien may seek review of judicial review or appeal of an immi- the decision in deportation proceed- gration officer’s determination as to ings. In deportation proceedings, the his or her admissibility other than on burden shall rest with the Service to the basis of an application for asylum establish by a preponderance of the evi- in the United States as provided in sec- dence that the facts and information in tion 208 of the Act; and the alien’s petition for removal of con- (6) Waives any right to contest any ditions are not true and that the peti- action for deportation, other than on the basis of an application for asylum tion was properly denied. in the United States as provided in sec- [59 FR 26591, May 23, 1994] tion 208 of the Act.

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(b) Applicants arriving by air or sea. (1) Act and must not engage in activities Applicants must be in possession of a in the United States which are incon- return trip ticket which will transport sistent with that status. An alien ad- the traveler out of the United States to mitted under this part is not eligible any other foreign port or place as long for extension of his or her authorized as the trip does not terminate in con- period of temporary stay in the United tiguous territory or an adjacent island; States; is not eligible for adjustment of or will transport the traveler to contig- his or her status to that of an alien uous territory or an adjacent island, if lawfully admitted for permanent resi- the traveler is a resident of the coun- dence pursuant to section 245 of the try of destination. A return trip ticket Act, other than as an immediate rel- includes any of the following: ative as defined in section 201(b) of the (i) A round trip, non-transferable Act or under the provisions of section transportation ticket which is valid for 245(i) of the Act; and is not eligible for a period of not less than one year; change of nonimmigrant status pursu- (ii) Airline employee passes indicat- ant to section 248 of the Act. ing return passage; (b) Satisfactory departure. If an emer- (iii) Individual vouchers; gency prevents an alien admitted under (iv) Group vouchers for charter this part from departing from the Unit- flights only; or ed States within his or her period of (v) Military travel orders which in- authorized stay, the district director clude military dependents for return to having jurisdiction over the place of duty stations outside the United States the alien’s temporary stay may, in his on United States military flights. or her discretion, grant a period of sat- (2) Applicants must arrive in the isfactory departure not to exceed thir- United States on a carrier which has ty days. If departure is accomplished entered into an agreement as provided during this period, the alien is to be rein § 217.6 of this part. garded as having satisfactorily accom- (c) Applicants arriving at land border plished the visit without overstaying Ports-of-Entry. Any applicant arriving the allotted time. at a land border Port-of-Entry must (c) Readmission after departure to con- provide evidence to the immigration tiguous territory or adjacent island. An officer of financial solvency and a alien admitted to the United States domicile abroad to which the applicant under this part may be readmitted to intends to return. An applicant arriv- the United States in the status of a ing at a land border Port-of-Entry will Visa Waiver Pilot Program visitor be charged a fee as prescribed in after a departure to foreign contiguous § 103.7(b)(1) of this chapter for issuance territory or adjacent island provided of Form I–94W, nonimmigrant Visa that: Waiver Arrival/Departure Form. (1) His or her authorized period of (d) Aliens in transit. An alien who is in temporary stay has not expired, transit through the United States is el- (2) He or she intends to depart the igible to apply for admission under the United States prior to the expiration of Visa Waiver Pilot Program, provided his or her authorized period of tem- the applicant meets the eligibility cri- porary stay, teria set forth in this section. (3) He or she presents a valid, [53 FR 24901, June 30, 1988, as amended at 53 unexpired passport which reflects ad- FR 50160, Dec. 13, 1988; 56 FR 32953, July 18, mission to the United States as a Visa 1991; 60 FR 40068, Aug. 7, 1995] Waiver Pilot Program visitor, and (4) He or she continues to meet all § 217.3 Maintenance of status. criteria set forth in § 217.2(a) of this (a) Eligibility for immigration benefits. part with the exception of arrival on a An alien admitted to the United States signatory carrier. under this part may be admitted as a (d) Adjacent islands. The term adja- visitor for business or pleasure for a pe- cent islands means Anguilla, Antigua, riod not to exceed ninety days. An Aruba, Bahamas, Barbados, Barbuda, alien admitted under this part must Bermuda, Bonaire, British Virgin Is- maintain his or her status as a visitor lands, Cayman Islands, Cuba, Curacao, as defined in section 101(a)(15)(B) of the Dominica, the Dominican Republic,

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Grenada, Guadeloupe, Haiti, Jamaica, grounds of excludability listed in sec- Marie-Galante, Martinique, Miquelon, tion 212 of the Act (other than for lack Montserrat, Saba, Saint-Barthelemy, of a visa), or who is in possession of Saint Christopher, Saint Eustatius, and presents fraudulent or counterfeit Saint Kitts-Nevis, Saint Lucia, Saint travel documents, will be refused ad- Maarten, Saint Martin, Saint Pierre, mission into the United States and re- Saint Vincent and Grenadines, Trini- moved. Such refusal and removal shall dad and Tobago, Turks and Caicos Is- be made at the level of the port direc- lands, and other British, French and tor or officer-in-charge, or an officer Netherlands territory or possession acting in that capacity, and shall be ef- bordering on the Caribbean Sea. fected without referral of the alien to An alien who applies for admission an immigration judge for further in- under the provisions of this section quiry, examination, or hearing, except may be admitted to the United States that an alien who presents himself or only for the remainder of the author- herself as an applicant for admission ized period of temporary stay which he under section 217 of the Act, who ap- or she was granted upon arrival in the plies for asylum in the United States United States in accordance with the must be referred to an immigration provisions of § 217.2(a) of this part. A judge for further inquiry. Visa Waiver Pilot Program visitor who (2) The removal of an alien under this applies for admission under the provi- section may be deferred if the alien is sions of this section is subject to exclu- paroled into the custody of a Federal, sion from the United States pursuant State, or local law enforcement agency to section 212 of the Act and this part. for criminal prosecution or punish- Departure from and readmission to the ment. This section in no way dimin- United States of an alien under this ishes the discretionary authority of the subsection does not relieve any obliga- Attorney General enumerated in sections and responsibilities of the carrier tion 212(d) of the Act. which initially transported such alien (c) Determination of deportability. An to the United States for admission alien who has been admitted to the under the provisions of this part. United States under the provisions of [53 FR 24901, June 30, 1988, as amended at 53 section 217 of the Act and of this part FR 50160, Dec. 13, 1988; 59 FR 51095, Oct. 7, who is determined by an immigration 1994] officer to be deportable from the Unit- ed States under one or more of the de- § 217.4 Excludability and deportabil- portation grounds listed in section 241 ity. of the Act shall be removed from the (a) Consent to apply for admission. United States to his or her country of Aliens who have been deported from nationality or last residence. Such re- the United States require the consent moval for deportation shall be deter- of the Attorney General to apply for mined by the district director who has admission to the United States pursu- jurisdiction over the place where the ant to section 212(a)(17) of the Act and alien is found, and shall be effected may not be admitted to the United without referral of the alien to an im- States under the provisions of this part migration judge for a determination of notwithstanding the fact that the re- deportability, except that an alien ad- quired consent of the Attorney General mitted as a Visa Waiver Pilot Program may have been secured. Such aliens visitor who applies for asylum in the must secure a visa in order to be ad- United States must be referred to an mitted to the United States as non- immigration judge for a determination immigrants. of deportability. (b) Determinations of excludability and (d)(1) Removal of excludable and de- inadmissibility. (1) An alien who applies portable aliens who arrived by air or sea. for admission under the provisions of The carrier which transported to the section 217 of the Act, who is deter- United States an alien who is to be re- mined by an immigration officer not to moved pursuant to this section will be be eligible for admission under that notified immediately of the determina- section or to be excludable from the tion to remove such alien by means of United States under one or more of the Form I–259, Notice to Detain, Deport,

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Remove, or Present Aliens. Removal in the United Kingdom (England, Scot- from the United States under this sec- land, Wales, Northern Ireland, Channel tion may be effected using the return Islands, and the Isle of Man); it does portion of the round trip passage pre- not refer to British overseas citizens, sented by the alien at the time of entry British dependent territories citizens, to the United States as required in or citizens of British Commonwealth § 217.2(b)(1) of this part. Such removal countries. shall be on the first available means of [53 FR 24901, June 30, 1988, as amended at 56 transportation to the alien’s point of FR 46716, Sept. 13, 1991; 58 FR 40581, July 29, embarkation to the United States. 1993; 60 FR 15856, Mar. 28, 1995; 61 FR 35600, Nothing in this part absolves the car- July 8, 1996; 61 FR 39273, July 29, 1996; 61 FR rier of the responsibility to remove any 41684, Aug. 9, 1996] excludable or deportable alien at car- § 217.6 Carrier agreements. rier expense, as provided in § 217.6 (b) of this part. (a) General. The carrier agreements (2) Removal of excludable and deport- referred to in section 217(e) of the Act able aliens who arrived at land border shall be made by the Commissioner on ports of entry. Removal under this sec- behalf of the Attorney General and tion will be by the first available shall be on Form I–775, Visa Waiver means of transportation deemed appro- Pilot Program Agreement. The term priate by the district director. ‘‘carrier’’ as used in this part refers to the owner, charterer, lessee or author- [53 FR 24901, June 30, 1988, as amended at 56 ized agent of any commercial vessel or FR 32953, July 18, 1991] commercial aircraft engaged in transporting passengers to the United § 217.5 Designated countries. States from a foreign place. (a)(1) Visa Waiver Pilot Program coun- (b) Agreement provisions. (1) To be au- tries. United Kingdom (effective July 1, thorized to transport an alien to the 1988); Japan (effective December 15, United States pursuant to section 217 1988); France and Switzerland (effective of the Act and this part, a carrier must July 1, 1989); Germany and Sweden (ef- enter into an agreement on Form I–775 fective July 15, 1989); Italy and the to transport as an applicant for admis- Netherlands (effective July 29, 1989); sion under section 217 of the Act and Andorra, Austria, Belgium, Denmark, this part, only an alien who: Finland, Iceland, Liechtenstein, Lux- (i) Is a national of and in possession embourg, Monaco, New Zealand, Nor- of a valid passport issued by a country way, San Marino, and Spain (effective listed in § 217.5 of this part; October 1, 1991); Brunei (effective July 29, 1993); Argentina (effective July 8, (ii) Is in possession of a completed 1996); and Australia (effective July 29, and signed Form I–94W, Nonimmigrant 1996) have been designated as Visa Visa Waiver Arrival/Departure Form, Waiver Pilot Program countries based prior to inspection; on the criteria set forth at sections (iii) Seeks admission into the United 217(a)(2)(A) and 217(c) of the Act. States for 90 days or less; (2) Visa Waiver Pilot Program countries (iv) Is in possession of round trip, with Probationary Status. Effective non-transferable passage that is valid April 1, 1995, until September 30, 1998 or for one year, issued by a carrier signa- the expiration of the Visa Waiver Pilot tory on Form I–775, or by authorized Program, whichever comes first, Ire- agents who are subcontractors to such land has been designated as a Visa a carrier, and guaranteeing transpor- Waiver Pilot Program country with tation from the United States; Probationary Status in accordance (v) Agrees that the return portion of with section 217(g) of the Act. such passage may be used to effect re- (b) Definitions. For the purposes of moval from the United States based on this part the term national of a Visa a finding of excludability or deportabil- Waiver Pilot Program country as used in ity under § 217.4 of this part; section 217(a)(2) of the Act when ap- (vi) Appears otherwise admissible. plied to the United Kingdom refers (2) The carrier further agrees to: only to British citizens who have the (i) Submit to the Immigration and unrestricted right of permanent abode Naturalization Service the Form I–94W

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as required by § 231 of this chapter and five days notice to a carrier for the car- section 217(e)(1)(B) of the Act; rier’s failure to meet the terms of such (ii) Remove from the United States agreement. As a matter of discretion, any alien transported by the carrier to the Commissioner may notify a carrier the United States for admission under of the existence of a basis for termi- the Visa Waiver Pilot Program, in the nation of a carrier agreement under event that the alien is determined by this part and allow the carrier a period an immigration officer at the port of not to exceed fifteen days within which entry to be inadmissible or is deter- the carrier may bring itself into com- mined to have remained unlawfully be- pliance with the terms of the carrier yond the 90-day period of admission agreement. The agreement shall be under the program; subject to cancellation by either party (iii) Reimburse within 30 days of no- for any reason upon fifteen days’ writ- tice (not pay as a penalty) the Immi- gration and Naturalization Service of ten notice to the other party. any and all expenses incurred in the [53 FR 24901, June 30, 1988, as amended at 56 transportation (from the point of arriv- FR 32954, July 18, 1991] al in the United States) of any alien found inadmissible or deportable under PART 221—ADMISSION OF this program; (iv) Retain the responsibilities and VISITORS OR STUDENTS obligations enumerated in this part should the alien under the Visa Waiver AUTHORITY: Secs. 101, 103, 221, 66 Stat. 166, Pilot Program depart temporarily for a 173, 191; 8 U.S.C. 1101, 1103, 1201. visit to foreign contiguous territory § 221.1 Admission under bond. during the period of authorized stay in the United States; The district director having jurisdic- (v) Transport an alien found inadmis- tion over the intended place of resi- sible to the United States or deportable dence of an alien may accept a bond on from the United States after admission behalf of an alien defined in section under the Visa Waiver Pilot Program, 101(a)(15)(B) or (F) of the Act prior to by accepting as full payment for return the issuance of a visa to the alien or passage the return portion of the trans- upon receipt of a request directly from portation ticket as required in a U.S. consular officer or upon presen- § 217.6(b)(1)(v) from the original port of tation by an interested person of a no- arrival in the United States to point of tification from the consular officer re- embarkation. quiring such a bond; such a bond also (vi) Ensure that the form I–94W is may be accepted by the district direc- completed and signed by the alien prior tor with jurisdiction over the port of to inspection. entry or preinspection station where (3) For the purposes of this part, a pe- inspection of the alien takes place. riod of validity of one year need not be Upon acceptance of such a bond, the reflected on the ticket itself, provided district director shall notify the United that the carrier agrees that it will honor the return portion of the ticket States consular officer who requested at any time, as provided in the bond, giving the date and place of § 217.6(b)(2)(v) of this part. In addition, acceptance and amount of the bond. All for the purposes of this part, a bonds given as a condition of admission roundtrip ticket in possession of an ap- of an alien under section 221(g) of the plicant for admission under the Visa Act shall be executed on Form I–352. Waiver Pilot Program will be consid- For procedures relating to bond riders, ered qualifying in every respect, as acceptable sureties, cancellation, or long as the arrival in the United States breaching of bonds, see part 103 of this under the pilot program is on a partici- chapter. pating carrier. [32 FR 9626, July 4, 1967, as amended at 34 FR (c) Termination of agreements. The 1008, Jan. 23, 1969] Commissioner, in behalf of the Attor- ney General, may terminate any carrier agreement under this part with

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PART 223—REENTRY PERMITS, REFU- under section 208 of the Act, or is a per- GEE TRAVEL DOCUMENTS, AND manent resident and received such sta- ADVANCE PAROLE DOCUMENTS tus as a direct result of his or her asylee or refugee status. Sec. (c) Ineligibility—(1) Prior document still 223.1 Purpose of documents. valid. An application for a reentry per- 223.2 Processing. mit or refugee travel document shall 223.3 Validity and effect on admissibility. be denied if the applicant was pre- AUTHORITY: 8 U.S.C. 1103, 1181, 1182, 1186a, viously issued a reentry permit or refu- 1203, 1225, 1226, 1227, 1251; Protocol Relating gee travel document which is still to the Status of Refugees, November 1, 1968, valid, unless it was returned to the 19 U.S.T. 6223 (TIAS 6577). Service or it is demonstrated that it SOURCE: 59 FR 1464, Jan. 11, 1994, unless was lost. otherwise noted. (2) Extended absences. A reentry permit issued to a person who, since be- § 223.1 Purpose of documents. coming a permanent resident, or dur- (a) Reentry permit. A reentry permit ing the last 5 years, whichever is less, allows a permanent resident to apply has been outside the United States for for admission to the United States more than 4 years in the aggregate, upon return from abroad during the pe- shall be limited to a validity of one riod of the permit’s validity without year, except that a permit with a valid- the necessity of obtaining a returning ity of two years may be issued to: resident visa. (i) A permanent resident as defined in (b) Refugee travel document. A refugee 8 CFR 211.1(b)(1)(ii) or 211.1(b)(4); travel document is issued pursuant to (ii) A permanent resident employed this part and article 28 of the United by a public international organization Nations Convention of July 28, 1951, for of which the United States is a member the purpose of travel. A person who by treaty or statute, and his or her per- holds refugee status pursuant to sec- manent resident spouse and children; tion 207 of the Act, or asylee status or pursuant to section 208 of the Act, (iii) A permanent resident who is a must have a refugee travel document professional athlete who regularly to return to the United States after competes in the United States and temporary travel abroad unless he or worldwide. she is in possession of a valid advance (3) Permanent resident entitled to non- parole document. immigrant diplomatic or treaty status. A permanent resident entitled to non- § 223.2 Processing. immigrant status under section (a) General. An application for a re- 101(a)(15) (A), (E), or (G) of the Act be- entry permit, refugee travel document, cause of occupational status may only or advance parole document must be be issued a reentry permit if the appli- filed on Form I–131, with the fee re- cant executes and submits with the ap- quired in § 103.7 of this chapter and plication, or has previously executed with the initial evidence required on and submitted, a written waiver on the application form. Form I–508 required by section 247(b) of (b) Eligibility. (1) Reentry permit. Ex- the Act and part 247 of this chapter cept as otherwise provided in this sec- and, if applicable, Form I–508F (election, an application may be approved if tion as to tax exemption under the filed by a person who is in the United Convention between the United States States at the time of application and is and the French Republic) required by a lawful permanent resident or condi- part 247 of this chapter. tional permanent resident. (d) Effect of travel before a decision is (2) Refugee travel document. Except as made. Departure from the United otherwise provided in this section, an States before a decision is made on an application may be approved if filed by application for a reentry permit or ref- a person who is in the United States at ugee travel document shall not affect the time of application, and either the application. holds valid refugee status under sec- (e) Processing. Approval of an application 207 of the Act, valid asylee status tion is solely at the discretion of the

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Service. If the application is approved, ed States who presents a valid the requested document shall be issued unexpired refugee travel document as provided in this part. shall be permitted to come physically (f) Issuance. A reentry permit or refu- within the territory of the United gee travel document may be sent in States to receive consideration of his care of a United States Consulate or an or her application for admission in con- overseas office of the Service if the ap- formity with paragraphs (d)(2)(ii) and plicant so requests at the time of fil- (d)(2)(iii) of this section. ing. Issuance of a reentry permit or ref- (ii) Inspection and immigration status. ugee travel document to a person in ex- Upon arrival, an alien who presents a clusion or deportation proceedings valid unexpired refugee travel docu- shall not affect those proceedings. ment shall be examined as to his or her (g) Appeal. Denial of an application admissibility under the Act. An alien for a reentry permit or refugee travel shall be accorded the immigration sta- document may be appealed to the Serv- tus endorsed in his or her refugee trav- ice’s Administrative Appeals Unit. el document unless he or she is no longer eligible therefor, or he or she § 223.3 Validity and effect on admissi- applies for and is found eligible for bility. some other immigration status. (a) Validity—(1) Reentry permit. Ex- (iii) Exclusion. If an alien who pre- cept as provided in § 223.2(c)(2), a re- sents a valid unexpired refugee travel entry permit issued to a permanent document appears to the examining resident shall be valid for 2 years from immigration officer to be excludable as the date of issuance. A reentry permit provided in § 236.5(c) of this chapter, he issued to a conditional permanent resi- or she shall be referred for proceedings dent shall be valid for 2 years from the under section 236 and 237 of the Act. date of issuance, or to the date the con- Section 235(c) of the Act shall not be ditional permanent resident must applicable. apply for removal of the conditions on his or her status, whichever comes PART 231—ARRIVAL-DEPARTURE first. MANIFESTS AND LISTS; SUPPORT- (2) Refugee travel document. A refugee ING DOCUMENTS travel document shall be valid for 1 year, or to the date the refugee or Sec. asylee status expires, whichever comes 231.1 Arrival manifest for passengers. first. 231.2 Departure manifest for passengers. (b) Invalidation. A document issued 231.3 Exemptions for private vessels and air- under this part is invalid if obtained craft. through material false representation AUTHORITY: Secs. 101, 103, 212, 231, 238, 239, or concealment, or if the person is or- 66 Stat. 166, 173, 182, 195, 202, 203; 8 U.S.C. dered excluded or deported. A refugee 1101, 1103, 1182, 1221, 1228, 1229. travel document is also invalid if the United Nations Convention of July 28, § 231.1 Arrival manifest for pas- 1951, ceases to apply or does not apply sengers. to the person as provided in Article 1C, (a) Requirement for manifest. The mas- D, E, or F of the convention. ter, captain, or agent of every vessel or (c) Extension. A reentry permit or ref- aircraft arriving in the United States ugee travel document may not be ex- from a foreign place or outlying posses- tended. sion of the United States shall present (d) Effect on admissibility—(1) Reentry an arrival manifest to the immigration permit. A permanent resident or condi- officer at the port of entry. The mani- tional permanent resident in posses- fest must be in the form of a separate sion of a valid reentry permit who is Arrival/Departure Record, Form I–94, otherwise admissible shall not be prepared on board for each passenger deemed to have abandoned status based except: United States citizens, lawful solely on the duration of an absence or permanent resident aliens of the Unit- absences while the permit is valid. ed States, and immigrants to the Unit- (2) Refugee travel document—(i) Gen- ed States. In addition, a properly com- eral. Every alien returning to the Unit- pleted Aircraft/Vessel Report, Form I–

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92, must be submitted for each arriving the port of entry for each arriving pas- aircraft or vessel which is transporting senger except those passengers who do passengers. Manifests are not required not require a Form I–94 under para- by vessels or aircraft arriving directly graph (a) of this section. The following from Canada on a trip originating in classes of aliens are not required to that country or arriving in the Virgin complete the departure portion of the Islands of the United States directly Form I–94 if they are entering the U.S. from a trip originating in the British for business or pleasure under section Virgin Islands. 101(a)(15)(B) of the Act, and intend to (b) In-Transit Passengers. An Arrival/ remain in the United States for less Departure Record, Form I–94, is not re- than six months; quired for an arriving, through-flight (1) Citizens of Canada or British de- passenger at a United States port pro- pendent territories citizens, Bermuda, vided: and (1) The passenger will depart directly (2) Residents of Canada or Bermuda to a foreign place or outlying posses- having common nationality with Cana- sion of the United States on the same dian nationals or British dependent flight; territories citizens, Bermuda. (2) The number of through-flight pas- [48 FR 21548, May 13, 1983, as amended at 48 sengers is noted on the Aircraft/Vessel FR 36093, Aug. 9, 1983; 48 FR 40209, Sept. 6, Report, Form I–92, for the flight; 1983] (3) The flight is inspected at a port of entry designated in paragraph 214.2(c) § 231.2 Departure manifest for pas- of this chapter; sengers. (4) The carrier is signatory to an Im- The master, captain, or agent of mediate and Continuous Transit Agree- every vessel or aircraft departing from ment, Form I–426; and the United States for a foreign place or (5) All through-flight passengers re- outlying possession of the United main on board the aircraft or in a sepa- States shall present a departure mani- rate area under the direction and con- fest to the immigration officer at the trol of the Service during the ground port of departure. The manifest must time. be in the form of a properly completed (c) Progressive Clearance. Inspection of departure portion of Form I–94, Arriv- arriving passengers may be deferred at al/Departure Record, for each person on the request of the carrier to an onward board except for United States citizens, port of debarkation. Authorization for and lawful permanent resident aliens of this progressive clearance may be the United States. No manifest is re- granted by the Regional Commissioner quired for a vessel or aircraft departing when both the initial port of entry and on a trip directly for and terminating the onward port are within the same in Canada, or departing from the Unit- regional jurisdiction, but when the ini- ed States Virgin Islands driectly to the tial port of entry and onward port are British Virgin Islands on a trip termi- located within different regions, re- nating in the British Virgin Islands. quests for progressive clearance must Whenever possible, the departure Form be authorized by the Assistant Com- I–94 used shall be the same form given missioner for Inspections. When pro- the alien at the time of arrival in the gressive clearance is requested, the United States. Carriers shall endorse carrier shall present Form I–92 in du- the Form I–94 with the departure infor- plicate at the initial port of entry. The mation on the reverse of the form. Ad- original Form I–92 will be processed at ditionally, a properly completed Air- the initial port of entry, and the dupli- craft/Vessel Report, Form I–92, must be cate noted and returned to the carrier completed for each departing aircraft for presentation at the onward port of and each departing vessel which is debarkation. transporting passengers. Submission of (d) Preparation of Arrival/Departure Forms I–94 and I–92 to the immigration Record, Form I–94. Air and sea carriers officer shall normally be accomplished shall be responsible to ensure that a within 48 hours of the departure, exclu- properly completed Form I–94 is pre- sive of Saturdays, Sundays, and legal sented to the immigration inspector at holidays. Failure to submit departure

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manifests within this time period shall 234.2 Examination in the United States of be regarded as failure to comply with alien applicants for benefits under the section 231(d) of the Act, unless prior immigration laws and other aliens. authorization for delayed delivery of AUTHORITY: Secs. 103, 234, 66 Stat. 173, 198; the departure manifest is obtained (8 U.S.C. 1103, 1224). from the district director. A nonimmigrant alien departing on an air- § 234.1 General. craft proceeding directly to Canada on The manner in which the physical a flight terminating in that country and mental examination of aliens shall should surrender any Form I–94 in his/ be conducted is set forth in 42 CFR part her possession to the airline agent at 34. the port of departure. Aircraft manifests should not include I–94 forms for [38 FR 33061, Nov. 30, 1973, as amended at 38 in-transit passengers referred to in FR 34315, Dec. 13, 1973] paragraph (b) of § 231.1. § 234.2 Examination in the United [48 FR 21548, May 13, 1983] States of alien applicants for benefits under the immigration laws and § 231.3 Exemptions for private vessels other aliens. and aircraft. (a) General. When a medical examina- The provisions of this part relating tion is required of an alien who files an to the presentation of arrival and de- application for status as a permanent parture manifests shall not apply to a resident under section 245 of the Act or private vessel or private aircraft not part 245 of this chapter, it shall be engaged directly or indirectly in the made by a selected civil surgeon. Such carriage of persons or cargo for hire. examination shall be performed in ac- [32 FR 9627, July 4, 1967] cordance with 42 CFR part 34 and any additional instructions and guidelines as may be considered necessary by the PART 232—DETENTION FOR EXAM- U.S. Public Health Service. In any INATION TO DETERMINE MENTAL other case in which the Service re- OR PHYSICAL DEFECTS quests a medical examination of an alien, the examination shall be made AUTHORITY: 8 U.S.C. 1103 and 1222. by a medical officer of the U.S. Public Health Service, or by a civil surgeon if § 232.1 Detention. a medical officer of the U.S. Public When a district director has reason- Health Service is not located within a able grounds for believing that persons reasonable distance or is otherwise not arriving in the United States should be available. detained for reasons specified in sec- (b) Selection of civil surgeons. When a tion 232 of the Act, he/she shall, after civil surgeon is to perform the exam- consultation with the United States ination, he shall be selected by the dis- Public Health Service at the port of trict director having jurisdiction over entry, notify the master or agent of the area of the alien’s residence. The the arriving vessel or aircraft of his/her district director shall select as many intention to effect such detention by civil surgeons, including clinics and serving on the master or agent the local, county and state health depart- Form I–259C in accordance with ments employing qualified civil sur- § 235.3(e) of this chapter. geons, as he determines to be necessary [54 FR 101, Jan. 4, 1989] to serve the needs of the Service in a locality under his jurisdiction. Each civil surgeon selected shall be a li- PART 233—[RESERVED] censed physician with no less than 4 years’ professional experience. Under PART 234—PHYSICAL AND MENTAL usual circumstances physicians will be EXAMINATION OF ARRIVING required to meet the 4 year profes- ALIENS sional experience criteria. However, at the district director’s discretion other 234.1 General. physicians with less experience can be

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designated to address unusual or un- shall review the medical report and ad- foreseen situations as the need arises. vise the Service whether it is accept- Officers of local health departments able, in accordance with § 212.7(b)(4)(ii) and medical societies may be consulted of this chapter. to obtain the names of competent sur- (iv) In any other case where the ap- geons and clinics willing to make the plicant has been found to be afflicted examinations. An understanding shall with active or inactive tuberculosis or be reached with respect to the fee an infectious or noninfectious leprosy which the surgeon or clinic will charge condition, the immigration office will for the examination. The alien shall forward a copy of Form OF–157 with pay the fee agreed upon directly to the the applicant’s address endorsed on the surgeon making the examination. reverse to the Director, Division of (c) Civil surgeon reports—(1) Applicants Quarantine, Center for Prevention for status of permanent resident. Services, Centers for Disease Control, (i) When an applicant for status as a Atlanta, GA 30333. permanent resident is found upon ex- (2) Other aliens. The results of the examination to be free of any defect, dis- amination of an alien who is not an ap- ease, or disability listed in section plicant for status as a permanent resi- 212(a) of the Act, the civil surgeon shall dent shall be entered on Form I–141, endorse Form I–486A, Medical Exam- Medical Certificate, in duplicate. This ination and Immigration Interview, form shall be returned to the Service and forward it with the X-ray and office by which the alien was referred. other pertinent laboratory reports to (d) U.S. Public Health Service hospital the immigration office from which the and outpatient clinic reports. When an alien was referred, The immigration of- applicant for a benefit under the immi- fice may return the X-ray and labora- gration laws, other than an applicant tory reports to the alien. If the appli- for status as a permanent resident, is cant is found to be afflicted with a de- examined by a medical officer of the fect, disease or disability listed under U.S. Public Health Service, the results section 212(a) of the Act, the civil sur- of the examination shall be entered on geon shall complete Form OF–157 in Form I–141, Medical Certificate, in du- duplicate, and forward it with Form I– plicate. The form shall be returned to 486A, X-ray, and other pertinent lab- the Service office by which the alien oratory reports to the immigration of- was referred. fice from which the alien was referred. [38 FR 33061, Nov. 30, 1973, as amended at 48 (ii) If the applicant is found to be af- FR 30610, July 5, 1983; 52 FR 16194, May 1, flicted with active tuberculosis and a 1987] waiver is granted under section 212(g) of the Act, the immigration office will PART 235—INSPECTION OF PER- forward a copy of the completed Form I–601 (Application for Waiver of SONS APPLYING FOR ADMIS- Grounds of Excludability) and a copy of SION the Form OF–157 to the Director, Divi- sion of Quarantine, Center for Preven- Sec. 235.1 Scope of examination. tion Sevices, Centers for Disease Con- 235.2 Examination postponed. trol, Atlanta, GA 30333. 235.3 Detention and deferred inspection. (iii) If an alien who if found to be 235.4 Endorsement of documents. mentally retarded or to have had one 235.5 Preinspection. or more previous attacks of insanity, 235.6 Referral to immigration judge. applies for a waiver of excludability 235.7 Referral of certain cases to district di- under section 212(g) of the Act, the im- rector. 235.8 Temporary exclusion. migration office will submit to the Di- 235.9 Conditional entries. rector, Division of Quarantine, Center 235.10 U.S. Citizen Identification Card. for Prevention Services, Centers for 235.11 Admission of conditional permanent Disease Control, Atlanta, GA 30333, the residents. completed Form I–601, including a copy 235.12 Northern Mariana identification card. of the medical report specified in the 235.13 Automated inspection services. instructions attached to that form, and AUTHORITY: 8 U.S.C. 1101, 1103, 1182, 1183, a copy of Form OF–157. This official 1201, 1224, 1225, 1226, 1227, 1228, 1252.

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§ 235.1 Scope of examination. lamations and is entitled under all of (a) General. Application to enter the the applicable provisions of the immi- United States shall be made either in gration laws and this chapter to enter person to an immigration officer at a the United States. U.S. port of entry enumerated in part (2) For the purpose of this part, any 100 of this chapter at a time when the alien coming to a United States port immigration office at the port is open from a foreign port, from an outlying for inspection or as provided in § 235.13. possession of the United States, from (b) U.S. citizens. A person claiming Guam, Puerto Rico, or the Virgin Is- U.S. citizenship must establish that lands of the United States, or from an- fact to the examining immigration of- other port of the United States at ficer’s satisfaction and must present a which examination under this part was U.S. passport if such passport is re- not completed, shall be regarded as an quired under the provisions of 22 CFR arrival. part 53. If such an applicant for admis- (3) Any person, including an alien sion fails to satisfy the examining im- crewman, passing through the Canal migration officer that he is a U.S. citi- Zone on board a vessel which enters zen, he shall thereafter be inspected as and clears at the Canal Zone port only an alien. to transit the Zone, to refuel, or to (c) Alien members of United States land passengers or crewmen for medi- Armed Forces and members of a force of a cal treatment, shall not be regarded as NATO country. Any alien member of coming from a foreign port solely by the United States Armed Forces who is reason of such passage. in the uniform of, or bears documents (4) Any person including an alien identifying him/her as a member of, crewman, on board a vessel which after such Armed Forces, and who is coming arrival at a United States port of entry to or departing from the United States passes the Great Lakes seaway en under official orders or permit of such route to another United States port Armed Forces is not subject to the ex- and which enters and clears at points clusion provisions of the Act. A mem- in Canada only to transit the seaway, ber of the force of a NATO country sig- to refuel, or to land passengers or crew- natory to Article III of the Status of men for medical treatment, shall not Forces Agreement seeking to enter the be regarded as coming from a foreign United States under official orders is exempt from the control provision of port solely by reason of such passage. the Act. Any alien who is a member of (5) Any person seeking to enter the either of the foregoing classes may, United States, including an alien crew- upon request, be inspected under the man, on board a vessel en route from provisions of the Act, and his/her entry one United States port to another as an alien may be recorded. If the United States port shall not be re- alien does not appear to the examining garded as coming from a foreign port immigration officer to be clearly and solely by reason of the vessel’s stop at beyond a doubt entitled to enter the Freeport, Bahamas, for bunkering United States under the provisions of only. the Act, the alien shall be so informed (6) Any person, including an alien and his/her entry shall not be recorded. crewman on board a vessel en route to (d) Qualifications for aliens. The fol- the United States solely for bunkering lowing general qualifications and re- purposes or an aircraft en route to the quirements shall be met by each alien United States solely for refueling pur- seeking to enter the United States for poses, who does not seek to enter the permanent, indefinite, or temporary United States, shall be regarded as not stay, and regardless of the purpose for arriving for purposes of immigration. which he/she seeks to enter: (7) The immigration inspection of (1) He/she shall present whatever doc- any person, including an alien crew- uments are required and shall establish man, on board a vessel or aircraft, may to the satisfaction of the immigration be postponed to an onward port of ar- officer that he/she is not subject to ex- rival, if the vessel or aircraft will only clusion under the immigration laws, bunker or refuel at the first port of Executive Orders, or Presidential Proc- call.

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(8) Any citizen of Canada or Mexico areas adjacent to the immediate shore seeking to enter the United States as a area of the United States. If the bearer principal alien E–1 or E–2, or as an L– of Form I–68 seeks to enter the United 1 or TN, for the purpose of employment States by means other than small craft at a site where the Secretary of Labor of less than 5 net tons without mer- has certified to or otherwise informed chandise, or if he or she seeks to enter the Commissioner that there is a strike the United States for other purposes, or other labor dispute involving a work or if he or she is an alien, other than a stoppage of workers in progress, and lawful permanent resident alien of the the temporary entry of that citizen of United States, and intends to proceed Canada or Mexico may affect adversely beyond an area adjacent to the imme- either the settlement of any such labor diate shore area of the United States, dispute or the employment of any per- or remains in the United States longer son who is involved in any such dis- than 72 hours, he or she must apply for pute, may be refused entry in the clas- admission at a United States port of sification sought. The applicant shall entry. be advised in writing of the reason(s) (f) Arrival/Departure Record, Form I– for the refusal. A designated represent- 94—(1) Nonimmigrants. Each non- ative of the government of Canada or immigrant alien, except as indicated Mexico shall be promptly notified in below, who is admitted to the United writing of the reason(s) for the refusal States shall be issued a completely ex- of entry. ecuted Form I–94 which must be en- (e) U.S. citizens, lawful permanent resi- dorsed to show: Date and place of ad- dents of the United States, Canadian na- mission, period of admission, and non- tionals, and other residents of Canada immigrant classification. A non- having a common nationality with Cana- immigrant alien who will be making dians, entering the United States by small frequent entries into the United States craft. Upon being inspected by an immi- over its land borders may be issued a gration officer and found eligible for Form I–94 which is valid for any num- admission as a citizen of the United ber of entries during the validity of the States, or found eligible for admission form. A nonimmigrant alien entering as a lawful permanent resident of the United States, or in the case of a Cana- the United States at a land border dian national or other resident of Can- Port-of-Entry who is issued Form I–94 ada having a common nationality with will be charged a fee as prescribed Canadians being found eligible for ad- under § 103.7(b)(1) of this chapter. In the mission as a temporary visitor for case of a nonimmigrant alien admitted pleasure, a person who desires to enter with the classification TN (Trade, the United States from Canada in a North American Free Trade Agreement small pleasure craft of less than 5 net (NAFTA)), the specific occupation of tons without merchandise may be is- such alien as set forth in Appendix sued, upon application and payment of 1603.D.1 of the NAFTA shall be re- a fee prescribed under § 103.7(b)(1) of corded in item number 18 on the re- this chapter, Form I–68, Canadian Bor- verse side of the arrival portion of der Boat Landing Card, and may there- Form I–94, and the name of the em- after enter the United States along ployer shall be noted on the reverse with the immediate shore area of the side of both the arrival and departure United States on the body of water des- portions of Form I–94. The departure ignated on the Form I–68 from time to portion of Form I–94 shall bear the leg- time for the duration of that naviga- end ‘‘multiple entry.’’ A Form I–94 is tion season without further inspection. not required by: In the case of a Canadian national or (i) Any nonimmigrant alien described other resident of Canada having a com- in § 212.1(a) of this chapter and 22 CFR mon nationality with Canadians, the 41.129(a) who is admitted as a visitor Form I–68 shall be valid only for the for business or pleasure or admitted to purpose of visits not to exceed 72 hours proceed in direct transit through the and only if the alien will remain in United States; nearby shopping areas, nearby residen- (ii) Any nonimmigrant alien residing tial neighborhoods, or other similar in the British Virgin Islands who was

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admitted only to the U.S. Virgin Is- charged for each applicant, or until the lands as a visitor for business or pleas- family cap is reached. ure under § 212.1(b) of this chapter; (2) If, after entry and issuance of the (iii) Any Mexican national in posses- Form I–444, the alien seeks to remain sion of a valid nonresident alien Mexi- for longer than 30 days or to proceed can border crossing card who is admit- outside of the five-state area, the alien ted as a border crosser or non- must apply for permission at a Service immigrant visitor at a Mexican border office located within the five-state port of entry for a period not to exceed area. 72 hours to visit within 25 miles of the [32 FR 9627, July 4, 1967, as amended at 32 FR border; 11628, Aug. 11, 1967; 45 FR 70428, Oct. 24, 1980; (iv) Any Mexican national in posses- 46 FR 43826, Sept. 1, 1981; 47 FR 49953, Nov. 4, sion of a valid Mexican passport and a 1982; 49 FR 33434, Aug. 23, 1984; 58 FR 69217, multiple-entry nonimmigrant visa is- Dec. 30, 1993; 60 FR 40068, Aug. 7, 1995; 60 FR sued under section 101(a)(15)(B) of the 50389, Sept. 29, 1995] Act who is admitted at a Mexican border port of entry as a nonimmigrant § 235.2 Examination postponed. visitor for a period not to exceed 72 Whenever an alien on arrival is found hours to visit within 25 miles of the or believed to be suffering from a dis- border; or ability which renders it impractical to (v) Any Mexican national eligible for proceed with the examination under a Mexican Border Visitors Permit, the Act, the examination of such alien, Form I–444, under paragraph (g) of this members of his family concerning section. whose admissibility it is necessary to (vi) Bearers of Mexican diplomatic or have such alien testify, and any accom- official passports described in § 212.1(c– panying aliens whose protection or 1) of this chapter. guardianship will be required should (2) Paroled aliens. Any alien paroled such alien be found inadmissible shall into the United States under section be deferred for such time and under 212(d)(5) of the Act, including any alien such conditions as the district director crewmember, shall be issued a com- in whose district the port is located pletely executed Form I–94 which must imposes. include: [22 FR 9791, Dec. 6, 1957] (i) Date and place of parole; (ii) Period of parole; and § 235.3 Detention and deferred inspec- (iii) Conditions under which the alien tion. is paroled into the United States. A fee (a) Prior to inspection. All persons ar- shall not be required for Form I–94 riving at a port in the United States by when it is issued for the purpose of pa- vessel or aircraft shall be detained roling an alien into the United States. aboard the vessel or at the airport of (g) Mexican Border Visitors Permit, arrival by the master, commanding of- Form I–444. (1) Any Mexican national ficer, purser, person in charge, agent, exempt from issuance of a Form I–94 owner, or consignee of such vessel or under paragraph (f)(1) (iii) or (iv) of aircraft until admitted or otherwise this section shall be issued a Mexican permitted to land by an officer of the Border Visitor’s Permit, Form I–444, Service. Notice or order to detain shall whenever: not be required. The Service will not be (i) The period of admission sought is liable for any expenses of a passenger more than 72 hours but not more than who has not been presented for inspec- 30 days; or tion and for whom a determination has (ii) The applicant desires to travel not been made concerning more than 25 miles from the Mexican admissability by a Service officer. border but within the 5-state area of (b) Aliens with no documentation or Arizona, California, Nevada, New Mex- false documentation. Any alien who ap- ico, or Texas. A separate Form I–444 pears to the inspecting officer to be in- will be issued for each applicant for ad- admissible, and who arrives without mission and a fee as prescribed under documents (except an alien for whom § 103.7(b)(1) of this chapter shall be documentary requirements are waived

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under § 211.1(b)(3) or § 212.1 of this chap- over the alien’s place of detention. ter) or who arrives with documentation Under no circumstances shall an alien which appears on its face to be false, be detained in facilities not meeting altered, or to relate to another person, the four mandatory criteria for usage. or who arrives at a place other than a These are: (1) 24-Hour Supervision, (2) designated port of entry, shall be de- Conformance with Safety and Emer- tained in accordance with section gency Codes, (3) Food Service and (4) 235(b) of the Act. Parole of such aliens Availability of Emergency Medical shall only be considered in accordance Care. with § 212.5(a) of this chapter. (g) Privilege of communication. The (c) Aliens with documents. Any alien mandatory notification requirements who appears to the inspecting officer to of consular and diplomatic officers pur- be inadmissible, but who does not fall suant to 8 CFR 242.2(g) apply to exclu- within paragraph (b) of this section, sion proceedings. may be detained, paroled, or paroled for deferred inspection by the inspect- [47 FR 30046, July 9, 1982, as amended at 47 ing officer. In determining whether or FR 46494, Oct. 19, 1982; 54 FR 101, Jan. 4, 1989; not an alien shall be detained, paroled 54 FR 6365, Feb. 9, 1989; 60 FR 16043, Mar. 29, or paroled for deferred inspection, the 1995] inspecting officer shall consider the § 235.4 Endorsement of documents. likelihood that the alien will abscond or pose a security risk. The admitting immigration officer (d) Service custody. The Service will shall, by means of a stamp, record in assume custody of any alien subject to each passport required to be presented detention under § 235.3 (b) or (c) of this the word ‘‘Admitted’’ and the date and section, except in the case of an alien place of admission. The same informa- who is presented as a Transit Without tion shall, upon admission, be recorded Visa (TWOV) passenger. on any immigrant visa, reentry permit (e) Notice to carriers. In the opinion of or required Form I–94. The ‘‘I–94 Depar- the examining immigration officer, it ture Record’’ part of Form I–94, prop- is not practical to resolve a question of erly endorsed, shall be returned to the admissability at the time of arrival of alien for retention while in the United an alien passenger on a vessel or air- States. At the time of departure from craft, the officer shall execute a Form the United States, the alien shall sur- I–259C to notify the agent, master, or render the I–94 Departure Record to a commanding officer of the vessel or representative of the carrier transport- aircraft, if applicable, that the alien ing the alien. passenger may be excludable from the United States and in the event the [48 FR 35349, Aug. 4, 1983] alien is formally ordered excluded and § 235.5 Preinspection. deported, the carrier will be responsible for detention and transportation (a) In United States territories and pos- expenses to the last foreign port of em- sessions. In the case of any aircraft pro- barkation as provided in § 237.5 of this ceeding from Guam, Puerto Rico, or chapter. the Virgin Islands of the United States (f) Detention in Non-Service facility. destined directly and without touching Whenever an alien is taken into Serv- at a foreign port or place to any other ice custody and detailed at a facility of such places or to one of the States of other than at a Service Processing Cen- the United States or the District of Co- ter, the public or private entities con- lumbia, the examination required by tracted to perform such service shall the act of the passengers and crew may have been approved for such use by the be made prior to the departure of the Service’s Jail Inspection Program or aircraft, and in such event, final deter- shall be performing such service under mination of admissibility shall be contract in compliance with the Stand- made immediately prior to such depar- ard Statement of Work for Contract ture. The examination shall be con- Detention Facilities. Both programs ducted in accordance with sections 234, are administered by the Detention and 235, 236, and 237 of the act and this part Deportation section having jurisdiction and parts 236 and 237 of this chapter,

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except that if it appears to the examin- stand the notice, it shall be read and ing immigration officer that any per- explained to him by an employee of the son in the United States being exam- Service, through an interpreter, if nec- ined under this section is prima facie essary, prior to such further inquiry. In deportable from the United States, fur- addition, the alien shall be advised of ther action with respect to his exam- his right to representation by counsel ination shall be deferred and further of his choice at no expense to the Gov- proceedings conducted as provided in ernment, and of the availability of free section 242 of the Act and part 242 of legal services programs qualified under this chapter. When the foregoing in- part 292a of this chapter and organiza- spection procedure is applied to any aircraft, persons examined and found tions recognized pursuant to § 292.2 of admissible shall be placed aboard the this chapter, located in the district aircraft, or kept at the airport separate where the alien is being detained. He and apart from the general public until shall also be furnished with a list of they are permitted to board the air- such programs. craft. No other person shall be per- (b) Certification for mental condition; mitted to depart on such aircraft until medical appeal. An alien certified under and unless he is found to be admissible paragraph (1), (2), (3), (4), or (5) of sec- as provided in this section. tion 212(a) of the Act shall be advised (b) In contiguous territory and adjacent by the examining immigration officer islands. On and after December 24, 1952, that he may appeal to a board of medi- in the case of any aircraft or vessel cal officers of the United States Public proceeding directly from a port or Health Service pursuant to section 234 place in foreign contiguous territory or of the Act. If such an appeal is taken, adjacent islands to a port of entry in the district director shall arrange for the United States, the examination and the convening of the medical board. inspection of passengers and crew required by the Act and final determina- [24 FR 6477, Aug. 12, 1959, as amended at 44 tion of admissibility may be made im- FR 4653, Jan. 23, 1979; 56 FR 50812, Oct. 9, mediately prior to such departure at 1991] the port or place in foreign contiguous territory or adjacent islands and shall § 235.7 Referral of certain cases to dis- have the same effect under the act as trict director. though made at the destined port of If the examining immigration officer entry in the United States. has reason to believe that the cause of [23 FR 3997, June 7, 1958, as amended at 24 FR an alien’s excludability can readily be 2583, Apr. 3, 1959; 50 FR 11842, Mar. 26, 1985; 54 removed by the posting of a bond in ac- FR 101, Jan. 4, 1989] cordance with section 213 of the Act, or by the exercise of section 211, section § 235.6 Referral to immigration judge. 212(d) (3) or (4), or section 212(c) of the (a) Notice. If, in accordance with the Act, or by granting permission to re- provisions of section 235(b) of the Act, apply for admission after deportation the examining immigration officer de- or removal, he may in lieu of detaining tains an alien for further inquiry be- the alien for hearing in accordance fore an immigration judge, he shall im- with section 235(b) and section 236 of mediately sign and deliver to the alien the Act refer the alien’s case to the dis- a Notice to Alien Detained for Hearing trict director within whose district the by an Immigration Judge (Form I–122). port is located for consideration of If an asylum officer denies an applica- such action and defer further examination for asylum or withholding of de- tion pending the district director’s deportation filed by an alien who is an cision. Refusal of a district director to applicant for admission or has been paroled under § 212.5 of this chapter, this authorize admission under section 213, Notice may be signed and delivered to or to grant an application for the bene- the alien by the supervisory asylum of- fits of section 211, section 212(d) (3) or ficer or by the Assistant Commis- (4), or section 212(c), or to grant per- sioner, Refugees, Asylum and Parole. If mission to reapply for admission after the alien is unable to read or under-

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deportation or removal shall be with- served on the alien. If the decision con- out prejudice to the renewal of such ap- tains confidential matter, a separate plication or the authorizing of such ad- order showing only the ultimate dis- mission by the special inquiry officer position of the case shall be signed by without additional fee. the regional commissioner and served on the alien. [28 FR 4251, Apr. 30, 1963] (d) Hearing by immigration judge. If § 235.8 Temporary exclusion. the regional commissioner directs that an alien temporarily excluded be given (a) Any immigration officer Report. a hearing or further hearing before an who temporarily excludes any alien immigration judge, the hearing and all under section 235(c) of the Act shall re- further proceedings in the matter shall port the action promptly to the dis- be conducted in accordance with the trict director who has administrative provisions of section 236 and other ap- jurisdiction over the port at which the plicable sections of the Act to the same alien arrived. The immigration officer extent as though the alien had been re- shall, if possible, take a brief sworn ferred to an immigration judge by the question-and-answer statement from examining immigration officer; except, the alien, and the alien shall be noti- that if confidential information, not fied by personal service of Form I–147 previously considered in the matter, is of the action taken and the right to adduced supporting the exclusion of make written representations. If the the alien under paragraph (27), (28), or subject of the report is an alien who (29) of section 212(a) of the Act, the dis- seeks to enter the United States other closure of which, in the discretion of than under section 101(a)(15)(D) of the the immigration judge, may be preju- Act, the district director shall forward dicial to the public interest, safety, or the report to the regional commis- security, the immigration judge may sioner for further action as provided in again temporarily exclude the alien paragraph (b) of this section. under the authority of section 235(c) of (b) Action by regional commissioner. If the Act and further action shall be the regional commissioner is satisfied taken as provided in this section. that the alien is inadmissible to the United States under paragraph (27), [22 FR 9791, Dec. 6, 1957; 22 FR 9519, Nov. 28, (28), or (29) of section 212(a) of the Act 1957, as amended at 48 FR 8, Jan. 3, 1983; 48 and if the regional commissioner, in FR 30350, July 1, 1983] the exercise of his discretion, concludes that such inadmissibility is § 235.9 Conditional entries. based on information of a confidential (a) Inspection of conditional entrant nature the disclosure of which would be and refugee parolee as to admissibility for prejudicial to the public interest, safe- permanent residence. Each alien who has ty, or security, he may deny any hear- been admitted under section 203(a)(7) as ing or further hearing by a special in- a conditional entrant, or paroled under quiry officer and order such alien ex- section 212(d)(5) of the Act as a refugee cluded and deported, or enter such prior to September 30, 1980, and who is other order in the case as he deems ap- not otherwise eligible for retroactive propriate. In any other case the re- adjustment of status to permanent gional commissioner may direct that resident, shall be required to appear be- an immigration officer shall further fore an immigration officer within one examine the alien as to his admissibil- year following conditional entry or pa- ity or that the alien be given a hearing role. If over 14 years of age, the condi- or further hearing before a special in- tional entrant or parolee shall be inter- quiry officer. rogated under oath by an immigration (c) Finality of decision. The decision of officer and a determination of admissi- the regional commissioner provided for bility shall be made under parts 235 and in paragraph (b) of this section shall be 236 of this chapter. Except as provided final and no appeal may be taken in parts 245 and 249 of this chapter, an therefrom. The decision of the regional application under this part shall be the commissioner shall be in writing, sole method of requesting the exercise signed by him and, unless it contains of discretion under section 212 (g), (h), confidential matter, a copy shall be or (i) of the Act, insofar as it relates to

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the excludability of an alien in the cant indicates a desire to file an appli- United States. Any alien who is in- cation for naturalization immediately, spected and admitted under this part the district director shall receive the who is eligible for and wishes to apply ‘‘roll back’’ application and process it. for naturalization immediately shall be If the ‘‘roll back’’ application is grant- processed under § 235.9(b)(3) of this ed, the new date lawful admission for chapter. permanent residence is recorded shall (b) Request to ‘‘roll back’’ permanent be entered on Form I–181 and placed in residence date by permanent resident who the applicant’s file. The applicant shall was paroled into the United States as a then be furnished the appropriate refugee—(1) General. A request by a performs and instructions for filing the manent resident who was originally pa- application for naturalization. A new roled into the United States as a refu- Alien Registration Card need not be is- gee before September 30, 1980 to ‘‘roll sued under these circumstances. Where back’’ the date of acquiring permanent a new Alien Registration Card is not is- residence to the date of original parole sued, Form I–181 will be so noted. as a refugee shall be made in writing to (c) Termination of conditional entrant the district director having jurisdic- or refugee parole status. Whenever a dis- tion over the applicant’s place of resi- trict director has reason to believe dence. Each request must be accom- that a conditional entrant under sec- panied by the Alien Registration Card, tion 203(a)(7) of the Act or an alien pa- Form I–551, previously issued to the ap- roled or a refugee under section plicant, and completed forms G–325 and FD–258. Where an applicant is eligible 212(d)(5) of the Act before September for and wishes to apply immediately 30, 1980, whose status has not otherwise for naturalization, the request must been terminated or changed, it or has contain a statement to that effect. The become inadmissible to the United decision on the request shall be made States under any provision (except by the district director. There is no ap- paragraph (20)) of section 212(a) of the peal from the district director’s deci- Act, the district director shall, in the sion. case of a parolee, comply with § 212.5(d) (2) Applicant for ‘‘roll back’’ who is not of this chapter, and thereafter serve on eligible for or who does not wish to file an either class of alien, Notice to Alien application for naturalization imme- Detained for Hearing Before Immigra- diately. Where the recipient of a ‘‘roll tion Judge, Form I–122, in accordance back’’ would not be immediately eligi- with § 235.6 of this part. The alien shall ble to apply for naturalization, or if el- be referred for a hearing before an im- igible, does not wish to do so imme- migration judge under sections 235, 236, diately, the ‘‘roll back’’ request must and 237 of the Act and parts 235, 236, be accompanied by three identical and 237 of this chapter. If the immigra- color photographs taken within the tion judge determines that the alien is past thirty days. The photographs not inadmissible to the United States must comply with the requirements for or, if inadmissible, that the alien is an ADIT card. These requirements may prima facie eligible for a waiver on the be obtained from any office of the Im- grounds of excludability under section migration and Naturalization Service. 212 (g), (h), or (i) of the Act, the judge If the request is approved, the appli- shall order the proceedings terminated cant shall be furnished a new Alien and refer the matter to the district di- Registration Card bearing the new date rector for further proceedings under lawful admission for permanent resi- section 203(g) of the Act. The order dence is recorded. shall be without prejudice to renewing (3) Where ‘‘roll back’’ would make ap- proceedings or instituting new proceed- plicant immediately eligible for natu- ings under this section. There is no ap- ralization and applicant intends to file peal from a decision by a district direc- the application immediately. Where a tor denying an application for a waiver ‘‘roll back’’ of the date of permanent under section 212 (g), (h), or (i) of the residence under this regulation would Act, but the denial is without prejudice make the applicant immediately eligi- to the renewal of the application in ble for naturalization, and the appli- proceedings before an immigration

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judge. If the immigration judge deter- in a determination adverse to his or mines that the alien is inadmissible to her claim to be a United States citizen. the United States for permanent resi- When an investigation results in a ten- dence under any provision of the Act, tative determination adverse to the ap- except section 212(a)(20), and that the plicant’s claim to be a United States alien is not entitled to the benefits of citizen, the applicant shall be notified section 212 (g), (h), or (i) of the Act, the by certified mail directed to his or her judge shall order the termination of last known address. The notification the alien’s conditional entry and make shall inform the applicant of the basis such further order as may be proper. for the determination and of the inten- The decision of the immigration judge tion of the district director to declare may be appealed under § 236.7 of this the card void unless within 30 days the chapter. applicant objects and demands an op- [48 FR 8, Jan. 3, 1983, as amended at 58 FR portunity to see and rebut the adverse 48778, Sept. 20, 1993] evidence. Any rebuttal, explanation, or evidence presented by the applicant § 235.10 U.S. Citizen Identification must be included in the record of pro- Card. ceeding. The determination whether (a) General. The U.S. Citizen Identi- the applicant is a United States citizen fication Card, Form I–197, is no longer must be based on the entire record and issued by the Service but valid existing the applicant shall be notified of the cards will continue to be acceptable determination. If it is determined that documentation of U.S. citizenship. Pos- the applicant is not a U.S. citizen, the session of the identification card is not applicant shall be notified of the rea- mandatory for any purpose. A U.S. Cit- sons, and the card deemed void. There izen Identification Card remains the is no appeal from the district director’s property of the United States. Because decision. the identification card is no longer is- (3) Admission of alienage. A U.S. Citi- sued, there are no provisions for re- zen Identification Card is void if the placement cards. person to whom it was issued admits in (b) Surrender and voidance—(1) Institu- a statement signed before an immigration of proceeding under section 236, 242 tion officer that he or she is an alien or 342 of the Act. A U.S. citizen identi- and consents to the voidance of the fication card must be surrendered pro- card. Upon signing the statement the visionally to a Service office upon noti- card must be surrendered to the immi- fication by the district director that a gration officer. proceeding under section 236, 242 or 342 (4) Surrender of void card. A void U.S. of the Act is being instituted against Citizen Identification Card which has the person to whom the card was is- not been returned to the Service must sued. The card shall be returned to the be surrendered without delay to an im- person if the final order in the proceed- migration officer or to the issuing of- ing does not result in voiding the card fice of the Service. under this paragraph. A U.S. Citizen (c) U.S. Citizen Identification Card pre- Identification Card is automatically viously issued on Form I–179. A valid void if the person to whom it was is- U.S. Citizen Identification Card issued sued is determined to be an alien in a on Form I–179 continues to be valid proceeding conducted under section 236 subject to the provisions of this sec- or 242 of the Act, or if a certificate, tion. document, or record relating to that person is cancelled under section 342 of [48 FR 9504, Mar. 7, 1983] the Act. (2) Investigation of validity of identi- § 235.11 Admission of conditional per- fication card. A U.S. Citizen Identifica- manent residents. tion Card must be surrendered provi- (a) General—(1) Conditional residence sionally upon notification by a district based on family relationship. An alien director that the validity of the card is seeking admission to the United States being investigated. The card shall be with an immigrant visa as the spouse returned to the person who surrendered or son or daughter of a United States it if the investigation does not result citizen or lawful permanent resident

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shall be examined to determine wheth- or, in the case of an alien entrepreneur er the conditions of section 216 of the (as defined in section 216A(f)(1) of the Act apply. Act), a Petition by Entrepreneur to Re- If so, the alien shall be admitted con- move Conditions (Form I–829). There- ditionally for a period of two years. At fore, an alien who is seeking admission the time of admission, the alien shall as a returning resident subsequent to be notified that the alien and his or her the second anniversary of the date on petitioning spouse must file a Petition which conditional residence was ob- to Remove the Conditions on Residence tained (except as provided in (Form I–751) within the 90-day period § 211.1(b)(1) of this chapter) and whose immediately preceding the second an- conditional basis of such residence has niversary of the alien’s admission for not been removed pursuant to section permanent residence. 216(c) or 216A(c) of the Act, whichever (2) Conditional residence based on en- is applicable, shall be placed under ex- trepreneurship. An alien seeking admis- clusion proceedings. However, in a case sion to the United States with an im- where conditional residence was based migrant visa as an alien entrepreneur on a marriage, exclusion proceedings (as defined in section 216A(f)(1) of the may be terminated and the alien may Act) or the spouse or unmarried minor be admitted as a returning resident if child of an alien entrepreneur shall be the required petition (Form I–751) is admitted conditionally for a period of filed jointly, or by the alien alone (if two years. At the time of admission, appropriate), and approved by the Serv- the alien shall be notified that the ice. In the case of an alien entre- principal alien (entrepreneur) must file preneur, exclusion proceedings may be a Petition by Entrepreneur to Remove terminated and the alien admitted as a Conditions (Form I–829) within the 90- returning resident if the required peti- day period immediately preceding the tion (Form I–829) is filed by the alien second anniversary of the alien’s ad- entrepreneur and approved by the Serv- mission for permanent residence. ice. (b) Correction of endorsement on immi- [53 FR 30021, Aug. 10, 1988, as amended at 59 grant visa. If the alien is subject to the FR 26592, May 23, 1994] provisions of section 216 of the Act, but the classification endorsed on the im- § 235.12 Northern Mariana identifica- migrant visa does not so indicate, the tion card. endorsement shall be corrected and the (a) General. A Northern Mariana iden- alien admitted as a lawful permanent tification card to identify the holder as resident on a conditional basis if other- a United States citizen, may be issued wise admissible. Conversely, if the to the following persons and their chil- alien is not subject to the provisions of dren under 18 years of age, who were section 216, but the visa classification born on or before November 3, 1986, and endorsed on the immigrant visa indi- were not citizens or nationals of the cates that the alien is subject thereto United States, and did not owe alle- (e.g., if the second anniversary of the giance to any foreign state on that marriage upon which the immigrant date: visa is based occurred after the issu- (1) A person in the Northern Mariana ance of the visa and prior to the alien’s Islands (NMI), and as of November 2, application for admission) the endorse- 1986, was a citizen of the Trust Terri- ment on the visa shall be corrected and tory of the Pacific Islands and was the alien admitted as a lawful perma- domiciled as of that date in the Com- nent resident without conditions, if monwealth of the Northern Mariana Is- otherwise admissible. lands (CNMI) or the United States, or (c) Expired conditional permanent resi- any territory or possession of the Unit- dent status. The lawful permanent resi- ed States; or dent alien status of a conditional resi- (2) A citizen of the Trust Territory of dent automatically terminates if the the Pacific Islands on November 2, 1986, conditional basis of such status is not who had been domiciled continuously removed by the Service through ap- in the NMI for the preceeding five proval of a Petition to Remove the years and who, unless under age, reg- Conditions on Residence (Form I–751) istered to vote in elections for the NMI

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District legislature or for any munici- the alien program participants on the pal election in the NMI prior to Janu- date PORTPASS is used. United States ary 1, 1975; or citizens who meet the eligibility re- (3) A person domiciled in the NMI on quirements for participation are sub- November 2, 1986, who although not a ject to all rules, procedures, and condi- citizen of the Trust Territory of the tions for use set forth in this section. Pacific Islands on that date, had been (ii) Automated Permit Port (APP). A continuously domiciled in the NMI be- POE designated by the Service to pro- ginning prior to January 1, 1974. vide access to the United States by an (b) Application. The Form I–777, Ap- identified, low-risk, border crosser plication for Issuance or Replacement through the use of automation when of Northern Mariana Card shall be submitted to the Service office in the the POE is not staffed. An APP has United States which has jurisdiction limited hours of operation and is lo- over the applicant’s residence. The ini- cated at a remote location on a land tial card application Form I–89 shall be border. This program is limited to the completed and forwarded to the Immi- northern border of the United States. gration Card Facility with the word (iii) Dedicated Commuter Lane (DCL). ‘‘MARIANA’’ block printed or stamped A special lane set apart from the nor- in the upper right-hand corner (side 1). mal flow of traffic at a land border A replacement card application shall POE which allows an accelerated in- be made on Form I–777 for a lost, muti- spection for identified, low-risk travel- lated, or destroyed card. ers. This program is limited to the (c) Duration of application period. The northern border of the United States Northern Mariana identification card and the California-Mexico border. will be issued during a two year period (iv) DCL system costs fee. A fee to end on July 1, 1990. All cards issued charged to a participant to cover the are valid indefinitely subject to the cost of the implementation and oper- provisions of this section. Replacement ation of the PORTPASS system. If a cards shall continue to be issued upon participant wishes to enroll more than application on Form I–777. one vehicle for use in the PORTPASS [53 FR 23380, June 22, 1988] system, he or she will be assessed an additional vehicle fee for each additional § 235.13 Automated inspection serv- vehicle enrolled. Regardless of when ices. the additional vehicle is enrolled, the (a) PORTPASS Program—(1) Defini- expiration date for use of that vehicle tions—(i) Port Passenger Accelerated in the DCL will be the same date that Service System (PORTPASS). A system the respective participant’s authorized in which certain ports-of-entry (POEs) use of the lane expires, or is otherwise are identified and designated by the revoked. Service as providing access to the Unit- (2) Designation of POEs for PORTPASS ed States for a group of identified, low- access. The following criteria shall be risk, border crossers. Alien partici- used by the Service in the selection of pants in the PORTPASS program are a POE when classifying the POE as personally inspected, identified, and having PORTPASS access: screened in advance of approval for (i) The location has an identifiable participation in the program by an immigration officer, and may apply to group of low-risk border crossers; enter the United States through a dedi- (ii) The institution of PORTPASS ac- cated commuter lane (DCL) or through cess will not significantly inhibit nor- an automated permit port (APP). Such mal traffic flow; advance inspection and identification, (iii) The POE selected for access via when the enrolled participant satisfies a DCL has a sufficient number of Serv- the conditions and requirements set ice personnel to perform primary and fourth in this section, satisfies the re- secondary inspection functions. porting requirements of § 235.1(a). Each (3) General eligibility requirements for successful use of PORTPASS con- PORTPASS program applicants. Appli- stitutes a separate and completed in- cants to PORTPASS must be citizens spection and application for entry by or lawful permanent residents of the

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United States, or nonimmigrants de- of residency must be submitted by all termined to be eligible by the Commis- applicants. Evidence of employment sioner of the Service. Non-United may be required to be furnished by the States citizens must meet all applica- applicant. A current valid driver’s li- ble documentary and entry eligibility cense, and evidence of vehicle registra- requirements of the Act. Applicants tion and insurance for the vehicle must agree to furnish all information which will be occupied by the applicant requested on the application, and must as a driver or passenger when he or she agree to terms set forth for use of the uses the DCL or APP must be pre- PORTPASS program. Use of the sented to the Service prior to approval PORTPASS program constitutes appli- of the application. cation for entry into the United States. (v) A completed Form I–823 must be Criminal justice information databases accompanied by the fee as prescribed in will be checked to assist in determin- § 103.7(b)(1) of this chapter. Each ing the applicant’s eligibility for the PORTPASS applicant 14 years-of-age PORTPASS program at the time the or older must complete the application Form I–823, Application—Alternative and pay the application fee. Applicants Inspection Services, is submitted. under the age of 14 will be required to Criminal justice information on complete the application, but will not PORTPASS participants will be up- be required to pay the application fee. dated regularly, and the results will be An application for a replacement checked electronically at the time of PORTPASS card must be made on the each approved participant’s use of Form I–823, and filed with the fee pre- PORTPASS. Notwithstanding the proscribed in § 103.7(b)(1). The district di- visions of 8 CFR part 264, fingerprints rector having jurisdiction over the on Form FD–258 or in the manner pre- POE where the applicant requests ac- scribed by the Service may be required. cess may, in his or her discretion, (4) Application. (i) Application for waive the application or replacement PORTPASS access shall be made on fee. Form I–823, Application—Alternative (vi) If fingerprints are required to as- Inspection Services. Applications may sist in a determination of eligibility at be submitted during regular working that POE, the applicant will be so ad- hours at the principal Port-of-Entry vised by the Service prior to submit- having jurisdiction over the Port-of- ting his or her application. The appli- Entry for which the applicant requests cant shall also be informed at that access. Applications may also be sub- time of the current Federal Bureau of mitted by mail. Investigation fee for conducting a fin- (ii) Each person seeking PORTPASS gerprint check. This fee must be paid access must file a separate application. by the applicant to the Service before (iii) The number of persons and vehi- any processing of the application shall cles which can use a DCL is limited nu- occur. The fingerprint fee may be not merically by the technology of the sys- be waived. tem. For this reason, distribution of (vii) Each applicant must present applications at each POE may be lim- himself or herself for an inspection ited. and/or positive identification at a time (iv) Applications must be supported designated by the Service prior to ap- by evidence of citizenship, and, in the proval of the application. case of lawful permanent residents of (viii) Each vehicle that a PORTPASS the United States, evidence of lawful participant desires to register in permanent resident status in the Unit- PORTPASS must be inspected and ap- ed States. Alien applicants required to proved by the Service prior to use in possess a valid visa must present docu- the PORTPASS system. Evidence of mentation establishing such possession valid, current registration and vehicle and any other documentation as re- insurance must be presented to the quired by the Act at the time of the ap- Service at the time the vehicle is in- plication, and must be in possession of spected. If the vehicle is not owned by such documentation at the time of the participant, the participant may be each entry, and at all times while required to present written permission present in the United States. Evidence from the registered owner authorizing

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use of the vehicle in the PORTPASS return of any and all such decals, de- program throughout the PORTPASS vices, technology, and other methodol- registration period. ogy in undamaged condition. (ix) An applicant, whether an occu- (ii) That all devices, decals, or other pant or driver, may apply to use more equipment, methodology, or tech- than one vehicle in the DCL. The first nology used to identify or inspect per- vehicle listed on the Form I–823 will be sons or vehicles seeking entry via any designated as the applicant’s primary PORTPASS program remains the prop- vehicle. The second vehicle, if not des- erty of the United States Government ignated by another applicant as his or at all times, and must be surrendered her primary vehicle, is subject to the upon request by the Service. Each par- additional vehicle charge as prescribed ticipant agrees to abide by the terms by the Service. set forth by the Service for use of any (x) An application may be denied in device, decal, or other equipment, the discretion of the district director method or technology. having jurisdiction over the POE where (iii) The payment of a system costs the applicant requests access. Notice of fee as determined by the Service to be such denial shall be given to the appli- necessary to cover the costs of imple- cant. There is no appeal from the de- menting, maintaining, and operating nial, but denial is without prejudice to the PORTPASS program. reapplying for this or any other Serv- (iv) That each occupant of a vehicle ice benefit. Re-applications, or applica- applying for entry through PORTPASS tions following revocation of permis- must have current approval from the sion to use the lane, will not be consid- Service to apply for entry through the ered by the Service until 90 days have PORTPASS program in that vehicle. passed following the date of denial or revocation. Criteria which will be con- (v) That a participant must be in pos- sidered in the decision to approve or session of any authorization docu- deny the application include the fol- ment(s) issued for PORTPASS access lowing: admissibility to the United and any other entry document(s) as re- States and documentation so evidenc- quired by the Act or by regulation at ing, criminal history and/or evidence of the time of each entry to the United criminality, purpose of travel, employ- States. ment, residency, prior immigration (vi) That a participant must posi- history, possession of current driver’s tively identify himself or herself in the license, vehicle insurance and registra- manner prescribed by the Service at tion, and vehicle inspection. the time of each application for entry (xi) Applications approved by the via the PORTPASS. Service will entitle the applicant to (vii) That each use of PORTPASS seek entry via a designated constitutes a separate application for PORTPASS Program POE for a period entry to the United States by the alien of 1 year from the date of approval of participant. the application unless approval is oth- (viii) That each participant agrees to erwise withdrawn. An application for a be responsible for all contents of the replacement card will not extend the vehicle that he or she occupies when initial period of approval. using PORTPASS. (5) By applying for and participating (ix) That a participant may not im- in the PORTPASS program, each ap- port merchandise or transport con- proved participant acknowledges and trolled or restricted items using agrees to all of the following: PORTPASS. The entry of any mer- (i) The installation and/or use of, in chandise or goods must be in accord- the vehicle approved for use in the ance with the laws and regulations of PORTPASS program, any and all de- all other Federal inspection agencies. cals, devices, technology or other (x) That a participant must abide by methodology deemed necessary by the all Federal, state and local laws re- Service to ensure inspection of the per- garding the importation of alcohol or son(s) seeking entry through a DCL, in agricultural products or the importa- addition to any fee and/or monetary de- tion or possession of controlled sub- posit assessed by the Service pending stances as defined in section 101 of the

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Controlled Substance Act (21 U.S.C. (c) Judicial review. Nothing in this § 802). section is intended to create any right (xi) That a participant will be subject or benefit, substantive or procedural, to random checks or inspections that enforceable in law or equity by a party may be conducted by the Service at against the Department of Justice, the any time and at any location, to ensure Immigration and Naturalization Serv- compliance. ice, their officers or any employees of (xii) That current vehicle registra- the Department of Justice. tion and, if applicable, current permission to use the vehicle in PORTPASS, [61 FR 53831, Oct. 16, 1996] and evidence of current vehicle insurance, shall be in the vehicle at all PART 236—EXCLUSION OF ALIENS times during use of PORTPASS. (xiii) Participant agrees to notify the Sec. Service if a vehicle approved for use in 236.1 Authority of immigration judges. a PORTPASS program is sold, stolen, 236.2 Hearing. damaged, or disposed of otherwise. If a 236.3 Applications for asylum or withhold- vehicle is sold, it is the responsibility ing of deportation. of the participant to remove or oblit- 236.4 Renewal of application for adjustment of status under section 245 of the Act. erate any identifying device or other 236.5 Decision of the immigration judge; no- authorization for participation in the tice to the applicant. program or at the time of sale unless 236.6 Finality of order. otherwise notified by the Service. If 236.7 Appeals. any license plates are replaced on an 236.8 Fingerprinting of excluded aliens. enrolled vehicle, the participant must 236.9 Visa Waiver Pilot Program. submit a properly executed Form I–823, 236.10 Exclusion of alien seeking admission without fee, prior to use of the vehicle under section 101(a)(15)(S) of the Act. in the PORTPASS program. AUTHORITY: 8 U.S.C. 1103, 1182, 1224, 1225, (xiv) That APP-approved participants 1226, 1362. who wish to enter the United States through a POE other than one des- § 236.1 Authority of immigration ignated as an APP through which they judges. may pass must present themselves for In determining cases referred for fur- inspection or examination by an immi- ther inquiry as provided in section 235 gration officer during normal business of the Act, immigration judges shall hours. Entry to the United States during hours when a Port of Entry is not have the powers and authority con- staffed may be made only through a ferred upon them by the Act and this POE designated as an APP. chapter. Subject to any specific limita- (b) Violation of condition of the tion prescribed by the Act and this PORTPASS program. A PORTPASS pro- chapter, immigration judges shall also gram participant who violates any con- exercise the discretion and authority dition of the PORTPASS program, or conferred upon the Attorney General who has violated any immigration law by the Act as is appropriate and nec- or regulation, or a law or regulation of essary for the disposition of such cases. the United States Customs Service or [42 FR 46045, Sept. 14, 1977] other Federal Inspection Service, or who is otherwise determined by an im- § 236.2 Hearing. migration officer to be inadmissible to (a) Opening. Exclusion hearings shall the United States or ineligible to participate in PORTPASS, may have the be closed to the public, unless the alien PORTPASS access revoked at the dis- at his own instance requests that the cretion of the district director or the public, including the press, be per- chief patrol agent and may be subject mitted to attend; in that event, the to other applicable sanctions, such as hearing shall be open, provided that criminal and/or administrative pros- the alien states for the record that he ecution or deportation, as well as pos- is waiving the requirement in section sible seizure of goods and/or vehicles. 236 of the Act that the inquiry shall be

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kept separate and apart from the pub- (d) Depositions. The procedures speci- lic. When the hearing is to be open, de- fied in § 242.14(e) of this chapter shall pending upon physical facilities, rea- apply. sonable limitation may be placed upon (e) Record. The hearing before the im- the number in attendance at any one migration judge, including the testi- time, with priority being given to the mony and exhibits, the immigration press over the general public. The Im- judge’s decision, and all written orders, migration Judge shall ascertain wheth- motions, appeals, and other papers er the applicant for admission is the filed in the proceeding shall constitute person to whom Form I–122 was pre- the record in the case. The hearing viously delivered by the examining im- shall be recorded verbatim except for migration officer as provided in part statements made off the record with 235 of this chapter; enter a copy of such the permission of the immigration form in evidence as an exhibit in the judge. case; inform the applicant of the na- [42 FR 46045, Sept. 14, 1977, as amended at 44 ture and purpose of the hearing; advise FR 4653, Jan. 23, 1979; 46 FR 43956, Sept. 2, him of the privilege of being rep- 1981] resented by an attorney of his own choice at no expense to the Govern- § 236.3 Applications for asylum or ment, and of the availability of free withholding of deportation. legal services programs qualified under (a) If the alien expresses fear of per- part 292a of this chapter and organiza- secution or harm upon return to his or tions recognized pursuant to § 292.2, of her country of origin or to a country to this chapter located in the district which the alien may be deported after where his exclusion hearing is to be a determination of excludability from held; and shall ascertain that the appli- the United States pursuant to part 237 cant has received a list of such proof this chapter, and the alien has not grams; and request him to ascertain been referred to the immigration judge then and there whether he desires rep- by an asylum officer in accordance resentation; advise him that he will with § 208.14(b) of this chapter, the im- have a reasonable opportunity to migration judge shall: present evidence in his own behalf, to (1) Advise the alien that he may examine and object to evidence against apply for asylum in the United States him, and to cross-examine witnesses or withholding of deportation to that presented by the Government; and other country; and place the applicant under oath. (2) Make available the appropriate (b) Procedure. The immigration judge application forms. shall receive and adduce material and (b) An application for asylum or relevant evidence, rule upon objec- withholding of deportation must be tions, and otherwise regulate the filed with the Immigration Court, pur- course of the hearing. suant to § 208.4(c) of this chapter. Upon (c) General attorney. The district di- receipt of an application that has not rector shall direct the chief legal offi- been referred by an asylum officer, the cer to assign a general attorney to Immigration Court shall forward a each case in which an applicant’s na- copy to the Department of State pursu- tionality is in issue. The district direc- ant to § 208.11 of this chapter and shall tor may direct the chief legal officer to calendar the case for a hearing. The assign a general attorney to any case reply, if any, from the Department of in which the district director deems State, unless classified under E.O. 12356 such assignment necessary or advan- (3 CFR, 1982 Comp., p. 166), shall be tageous. The duties of the general at- given to both the applicant and to the torney include, but are not limited to, trial attorney representing the govern- the presentation of evidence and the ment. interrogation, examination, and cross- (c) Applications for asylum or with- examination of the applicant and other holding of deportation so filed will be witnesses. Nothing contained herein di- decided by the immigration judge pur- minishes the authority of an immigra- suant to the requirements and stand- tion judge to conduct proceedings ards established in part 208 of this under this part. chapter after an evidentiary hearing

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that is necessary to resolve material or withholding of deportation was de- factual issues in dispute. An evi- nied. dentiary hearing extending beyond is- [55 FR 30686, July 27, 1990, as amended at 59 sues related to the basis for a manda- FR 62302, Dec. 5, 1994; 60 FR 34090, June 30, tory denial of the application pursuant 1995] to 8 CFR 208.14 or 208.16 is not necessary once the immigration judge has § 236.4 Renewal of application for ad- determined that such a denial is re- justment of status under section 245 quired. of the Act. (1) Evidentiary hearings on applica- An adjustment application by an tions for asylum or withholding of de- alien paroled under section 212(d)(5) of portation will be closed to the public the Act, which has been denied by the unless the applicant expressly requests district director, may be renewed in ex- that it be open pursuant to 8 CFR 236.2. clusion proceedings under section 236 of (2) Nothing in this section is intended the Act before an immigration judge to limit the authority of the immigra- under the following two conditions: tion judge properly to control the First, the denied application must have scope of any evidentiary hearing. been properly filed subsequent to the (3) During the exclusion hearing, the applicant’s earlier inspection and ad- applicant shall be examined under oath mission to the United States; second, on his application and may present evi- the applicant’s later absence from and dence and witnesses on his own behalf. return to the United States must have The applicant has the burden of estab- been under the terms of an advance pa- lishing that he is a refugee as defined role authorization on Form I–512 grant- in section 101(a)(42) of the Act pursuant ed to permit the applicant’s absence to the standard set forth in § 208.13 of and return to pursue the previously this chapter. filed adjustment application. (4) The trial attorney for the govern- [43 FR 16445, Apr. 19, 1978] ment may call witnesses and present evidence for the record, including in- § 236.5 Decision of the immigration formation classified under E.O. 12356 (3 judge; notice to the applicant. CFR, 1982 Comp., p. 166), provided the (a) Decision. The Immigration Judge immigration judge or the Board has de- shall inform the applicant of his or her termined that such information is rel- decision in accordance with § 3.35 of evant to the hearing. When the immi- this chapter. gration judge receives such classified (b) Advice to alien ordered excluded. An information he shall inform the appli- alien ordered excluded shall be fur- cant. The agency that provides the nished with Form I–296, Notice to Alien classified information to the immigra- Ordered Excluded by Immigration tion judge may provide an unclassified Judge, at the time of an oral decision summary of the information for release by the immigration judge or upon serv- to the applicant whenever it deter- ice of a written decision. mines it can do so consistently with (c) Holders of refugee travel documents. safeguarding both the classified nature Aliens who are the holders of valid of the information and its source. The unexpired refugee travel documents summary should be as detailed as pos- may be ordered excluded only if they sible, in order that the applicant may are found to be inadmissible under sec- have an opportunity to offer opposing tion 212(a) (9), (10), (12), (23), (27), (28), evidence. A decision based in whole or (29), or (31) of the Act, and it is deter- in part on such classified information mined that on the basis of the acts for shall state that such information is which they are inadmissible there are material to the decision. compelling reasons of national security (d) The decision of an immigration or public order for their exclusion. If judge to grant or deny asylum or with- the immigration judge finds that the holding of deportation shall be commu- alien is inadmissible but determines nicated to the applicant and to the that there are no compelling reasons of trial attorney for the government. An national security or public order for adverse decision will state why asylum exclusion, the immigration judge shall

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remand the case to the district director § 236.10 Exclusion of alien seeking ad- for parole. mission under section 101(a)(15)(S) of the Act. [42 FR 46045, Sept. 14, 1977. Redesignated at 43 FR 16445, Apr. 19, 1978, and amended at 52 An alien who applies for admission FR 2939, Jan. 29, 1987] under the provisions of section 101(a)(15)(S) of the Act who is deter- § 236.6 Finality of order. mined by an immigration officer not to The decision of the Immigration be eligible for admission under that Judge shall become final in accordance section or to be excludable from the with § 3.37 of this chapter. United States under one or more of the grounds of excludability listed in sec- [52 FR 2939, Jan. 29, 1987] tion 212 of the Act, which have not been previously waived by the Commis- § 236.7 Appeals. sioner, will be taken into custody and Except as limited by section 236 of will be subject to the exclusion proce- the Act, an appeal from a decision of dures contained in 8 CFR part 236. an Immigration Judge under this part [60 FR 44268, Aug. 25, 1995] may be taken by either party pursuant to § 3.38 of this chapter. PART 237—DEPORTATION OF [61 FR 18909, Apr. 29, 1996] EXCLUDED ALIENS

§ 236.8 Fingerprinting of excluded Sec. aliens. 237.1 Stay of deportation of excluded alien. Every alien 14 years of age or older 237.2 Notice to surrender for deportation. who is excluded from admission to the 237.3 Cost of maintenance not assessed. United States by an immigration judge 237.4 [Reserved] shall be fingerprinted, unless during 237.5 Notice to transportation line of alien’s exclusion. the preceding year he has been 237.6 Deportation. fingerprinted at an American consular office. AUTHORITY: 8 U.S.C. 1103, 1227, and 1255. [42 FR 46045, Sept. 14, 1977. Redesignated at § 237.1 Stay of deportation of excluded 43 FR 16445, Apr. 19, 1978] alien. The district director in charge of the § 236.9 Visa Waiver Pilot Program. port of arrival may stay the immediate Pursuant to section 217(b)(4)(A) of deportation of an excluded alien pursu- the Act, an alien who applies for ad- ant to sections 237 (a) and (d) of the act mission to the United States under the under such conditions as he may pre- provisions of that section must waive scribe. any right to review or appeal an immi- [23 FR 5818, Aug. 1, 1958] gration officer’s determination as to the admissibility of the alien at a port § 237.2 Notice to surrender for depor- of entry, other than on the basis of an tation. application for asylum. An alien appli- An alien who has been finally ex- cant for admission under section 217 of cluded pursuant to part 236 of this the Act shall be removed from the chapter may at any time surrender United States upon a determination by himself to the custody of the Service an immigration officer (port director, and shall surrender himself to such officer-in-charge, or officer acting in custody upon notice in writing of the either capacity) that the alien is inad- time and place for his surrender. The missible in accordance with procedures Service may take the alien into cus- in § 217.4(b) of this chapter except that tody at any time. An alien taken into such an alien who applies for asylum in custody either upon notice to surren- the United States shall be referred to der or by arrest shall not be deported an immigration judge for further in- less than 72 hours thereafter without quiry as provided in section 235 of the his consent thereto filed in writing Act and § 236.3 of this part. with the district director in charge of [53 FR 24903, June 30, 1988] the place of his detention. An alien in

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foreign contiguous territory shall be tain custody of the excluded alien for informed that he may remain there in an additional seven days beyond the lieu of surrendering to the Service, but date of the deportation/exclusion order. that he will be deemed to have ac- If, after the third day of this additional knowledged the execution of the order seven day period, the carrier has not of exclusion and deportation in his case made all the necessary transportation upon his failure to surrender at the arrangements for the excluded alien to time and place prescribed. be returned to his/her point of embar- [30 FR 4411, Apr. 6, 1965] kation by the end of the additional seven day period, the Service will § 237.3 Cost of maintenance not as- make the arrangements and bill the sessed. carrier for its costs. A claim pursuant to section [27 FR 1479, Feb. 17, 1962, as amended at 54 237(a)(2)(B) of the Act shall be estab- FR 102, Jan. 4, 1989] lished to the satisfaction of the district director in charge of the port of arriv- § 237.6 Deportation. al, from whose adverse decision no ap- (a) Definitions of terms. For the pur- peal shall lie. The district director poses of this section, the following shall afford the line a reasonable time terms mean: within which to submit affidavits and (1) Adjacent island—as defined in sec- briefs to support its claim. tion 101(b)(5) of the Act. [23 FR 5818, Aug. 1, 1958. Redesignated at 26 (2) Foreign contiguous territory—any FR 2113, Mar. 11, 1961] country sharing a common boundary with the United States. § 237.4 [Reserved] (3) Residence in foreign contiguous § 237.5 Notice to transportation line of territory or adjacent island—any phys- alien’s exclusion. ical presence, regardless of intent, in a (a) An excluded alien shall, imme- foreign contiguous territory or an adja- diately or as promptly as the cir- cent island if the government of such cumstances permit, be offered for de- territory or island agrees to accept the portation to the master, commanding alien. officer, purser, person in charge, agent, (4) Aircraft or vessel—any convey- owner, or consignee of the vessel or air- ance and other mode of travel by which craft on which the alien is to be de- arrival is effected. ported, as determined by the district (5) Next available flight—is to be the director, with a written notice specify- carrier’s next regularly scheduled de- ing the cause of exclusion, the class of parture to the excluded alien’s point of travel in which such alien arrived and embarkation regardless of seat avail- is to be deported, and with the return ability. If the carrier’s next regularly of any documentation which will assist scheduled departure to the excluded in effecting his deportation. If special aliens point of embarkation is full, the care and attention is required, the pro- carrier has the option of arranging for visions of § 243.7 of this chapter shall return transportation on other carriers apply. which service the excluded aliens point (b) Failure of the carrier to accept of embarkation. for removal an alien who has been or- (b) Place to which deported. Any alien dered excluded and deported shall re- (other than an alien crewmember or an sult in the carrier being assessed any alien who boarded an aircraft or vessel costs incurred by the Service for deten- in foreign contiguous territory or an tion after the carrier’s failure to accept adjacent island) who is ordered ex- the alien for removal including the cluded shall be deported to the country cost of any transportation. The User where the alien boarded the vessel or Fee Account shall not be assessed for aircraft on which the alien arrived in expenses incurred because of the car- the United States. If that country re- rier’s violation of the provisions of sec- fuses to accept the alien, the alien tion 237 of the Immigration and Na- shall be deported to: tionality Act and this paragraph. The (1) The country of which the alien is Service will, at the carriers option, re- a subject, citizen, or national;

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(2) The country where the alien was mented on Form I–420. The contracts born; with transportation lines referred to in (3) The country where the alien has a section 238(c) of the Act shall be made residence; or by the Commissioner on behalf of the (4) Any country willing to accept the government and shall be documented alien. on Form I–426. The contracts with (c) Contiguous territory and adjacent transportation lines desiring their pas- islands. Any alien ordered excluded who sengers to be preinspected at places boarded an aircraft or vessel in foreign outside the United States shall be contiguous territory or in any adjacent made by the Commissioner on behalf of island shall be deported to such foreign the government and shall be docu- contiguous territory or adjacent island mented on Form I–425; except that con- if the alien is a native, citizen, subject, tracts for irregularly operated charter or national of such foreign contiguous flights may be entered into by the Ex- territory or adjacent island, or if the ecutive Associate Commissioner for alien has a residence in such foreign Operations or an Immigration Officer contiguous territory or adjacent is- designated by the Executive Associate land. Otherwise, the alien shall be de- Commissioner for Operations and hav- ported, in the first instance, to the ing jurisdiction over the location country in which is located the port at where the inspection will take place. which the alien embarked for such for- [57 FR 59907, Dec. 17, 1992] eign contiguous territory or adjacent island. § 238.2 Transportation lines bringing (d) Land border pedestrian arrivals. aliens to the United States from or Any alien ordered excluded who arrived through foreign contiguous terri- at a land border on foot shall be de- tory or adjacent islands. ported in the same manner as if the Form I–420 shall be signed in dupli- alien had boarded a vessel or aircraft in cate and forwarded to the Headquarters foreign contiguous territory. Office of Inspections. After acceptance, [47 FR 44237, Oct. 7, 1982, as amended at 54 FR each Regional Office of Inspections, the 102, Jan. 4, 1989] district office and the carrier will be furnished with one copy of the agree- PART 238—CONTRACTS WITH ment. The transmittal letter to the TRANSPORTATION LINES Headquarters Office of Inspections shall indicate whether the signatory to the agreement is a subsidiary or affili- Sec. 238.1 Contracts. ate of a line which has already signed 238.2 Transportation lines bringing aliens to a similar agreement. Correspondence the United States from or through for- regarding ancillary contracts for office eign contiguous territory or adjacent is- space and other facilities to be fur- lands. nished by transportation lines at Serv- 238.3 Aliens in immediate and continuous ice stations in Canada shall be simi- transit. larly handled. 238.4 Preinspection outside the United States. [57 FR 59907, Dec. 17, 1992] 238.5 Aliens entering Guam pursuant to section 14 of Public Law 99–396, ‘‘Omnibus § 238.3 Aliens in immediate and contin- Territories Act’’. uous transit. AUTHORITY: 8 U.S.C. 1103, 1228; 8 CFR part (a) Form I–426 agreements. A transpor- 2. tation line bringing aliens to the Unit- ed States pursuant to § 212.1(f)(1) of this § 238.1 Contracts. chapter shall enter into an agreement The contracts with transportation on Form I–426. Such an agreement lines referred to in section 238(a) of the shall be negotiated directly by the Act may be entered into by the Execu- Service’s Headquarters Inspections Of- tive Associate Commissioner for Oper- fice and the head offices of the trans- ations, or by an Immigration Officer portation lines. designated by the Executive Associate (b) Signatory lines. Currently effective Commissioner for Operations on behalf agreements on Form I–426 exist with of the government and shall be docu- the following:

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Achille Lauro—Armatore, Naples, Italy. ‘‘ARETUSA’’, Soc. di Navigazione p. A., Pa- Aerlinte Eireann Teoranta (Irish Air Lines). lermo. Aero Coach Aviation International, Inc. Argonaut Airways Corp. Aero Costa Rica Arista International Airlines, Inc. Aeroflot Russian International Airlines Arosa Line, Inc., ‘‘Panama.’’ Aerolineas Argentinas. Arrow Airways, Inc. Aerolineas Centrales De Colombia (ACES). Asiana Air. Aerolineas INI and CIA S.A. Aspen Airways (dba United Express). Aerolineas Nicaraguenses, S.A. (Aeronica). Athina Maritime Co., Ltd. Aerolineas Peruanas, S.A. Atlantic Air BVI. AeroPeru (see Empresa de Transporte Aereo Atlantic Freighters, Ltd. del Peru). Atlantic Gulf Airlines. Aeroposta, S.A. Atlantic Oil Carriers, Ltd. AeroTours Dominicano Airlines. Atlantic Tankers, Ltd. Aerovias Condor de Colombia Ltda. Atlantis Airlines, Ltd. Aerovias de Mexico, S.A. de C.V. AUA Austrian Airlines. Aerovias Interamericanas de Panama, S.A. Aviateca, S.A. (Aerovias Panama Airways). Aviation Services, Ltd. dba Freedom Air. Aerovias Nacionales de Colombia Aviacion Y Comercio, S.A. (Aviaco Airlines). (AVIANCA). BAHAMASAIR. Bahamas Airways, Ltd. Aerovias Quis-queyana. Balair AG. Air Afrique. Balkan Bulgarian. Air Aruba. Barber-Wilhelmsen Line, F.M.C. No. 7489 AirBC Limited. (Barber Steamship Lines, Inc., U.S.A. Gen- Air B.V.I. Ltd. eral Agents). Air Belgium. Belize Airways, Ltd. Air Canada. Blue Star Line, Inc., The. Air Club International Inc. Braniff Airways, Inc. Air Columbus. Brazalian International Airlines (Real- Air Espana (dba Air Europa). Aerovias Brazil, S.A.). Air Florida. Britannia Airways Limited. Air Gambia Limited. British Airways (British Airways Board). Air-India International Corp. British Caledonian Airways Limited Air Jamaica (1968) Ltd. British Car Carriers, Ltd., and Nerdrum Air Manila, Inc. Lines. Air Micronesia, Inc. British Midland Airways, Ltd. Air Nauru. British West Indian Airways, Ltd. Air New Zealand, Ltd. Brodin Line. Air One, Inc. BWIA International. Air Pacific, Inc. Canadian Airlines International, Ltd. Air Pacific, Ltd. Canadian National Railway Co. Air Panama Internacional. Canadian Pacific Air Lines, Ltd. Air Siam Air Company, Ltd. Canadian Pacific Railway Co. Air Specialties Corp. d.b.a. Total Air. Capitol Airways, Inc. Air Tungaru Corp. Caribbean Atlantic Airlines, Inc. Air West, Inc. Caribbean Express, Inc. Alaska Airlines, Inc. Caribbean International Airways, Ltd. ‘‘ALCIONE’’, Soc. di Navigazione p. A., Pa- Catamaran Cruiselines lermo. Cathay Pacific Airways, Ltd. Alfred C. Toepfer Schiffahrtsgesellschaft Cayman Airways, Ltd. M.B.H. Ceskoslovenske Aerolinie (Czechoslovak Air- ALIA—The Royal Jordanian Airline. lines) Chandris America Lines Inc., as gen- All Islands Air Taxi, Inc. eral agents for: Okeania S.A. (Australis), Alliance Air. Chandris America Lines S.A. (Amerikanis), ALM-Dutch Antillean Airlines. Australian Line S.A. (Ellinis), and Themis- Aloha Airlines, Inc. tocles Nav. S.A. (Queen Frederica). American Airlines, Inc. Challenge International Airlines. American Banner Lines, Inc. Chandris (USA) Inc., as agents for Chandris American Export Lines, Inc. Lines. American Flyers Airline Corp. Chandris (USA) Inc., as agents for American International Airways, Inc. Mariblanca Navegacion S.A. and Compania American President Lines, Ltd. Panamena Europea Navegacion Ltda. S.A. American Trans Air, Inc. China Airlines, Ltd. ANA All Nippon Airways. China Merchants Steam Navigation Co., Ltd. Antone Sylvester Tug Services, Inc. China Navigation Co. Ltd., The AREA, Aerovias Ecuatorianas C. Ltda. China Union Lines, Ltd.

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Compagnia Genovese di Armemento German Atlantic Line (North German Lloyd Compagnie Generale Transatlantique Passenger Agency, Inc., for). (French Line). Giacomo Costa fu Andrea (Linea ‘‘C’’), Compagnie Nationale Air France. Genoa. Companhia Colonial de Navegacao. Global Chartering & Brokerage Co., Inc. Compania Cubana de Aviacion, S.A. Globe Air Ltd. Basel, Switzerland. Compania Dominicana de Aviacion, C. por A. Great Eastern Line. Compania Mexicana de Aviacion, S.A. Gray Coach Lines, Ltd. (CMA). Grey Goose Bus Lines, Ltd. Companhia Nacional de Navegacao, S.A.R.L. Greyhound Lines-East, Division of Grey- Compania Nacional de Turismo Aereo hound Lines, Inc. Limitada. Grimaldi Siosa Lines Joint Service. Compania Panamena de Aviacion S.A. Guest Aerovias Mexico, S.A. (COPA). Gulf Air Compania Transatlantica Espanola, S.A. Guy-America Airways, Inc. Condor Flugdienst GmbH. Guyana Airways Corp. Continental Air Lines, Inc. Haiti Air. Continental/Air Micronesia. Hamburg American Line. Cunard Steamship Company, Ltd. Hapag/Lloyd A.G./North German Lloyd Pas- Daido Kaiun Kaisha, Ltd., (Daido Line). senger Agency, Inc. Daiwa Navigation Co., Ltd., The. Harbor Airlines, Inc. Dan-Air Services, Ltd. Hawaiian Airlines. Delaware and Hudson Railroad Corp. Holland-America Line. Delta Air Lines, Inc. Home Lines Agency Inc., as agent for Home A. Demades & Owners—SS AXIOS Lines Inc. Den Norske Amerikalinje A/S (See Nor- Horizon Airlines Industries, Inc. wegian America Line). Horn-Linie. Ditlev-Simonsen Lines. Hugo Stinnes Transozean Schiffahrts, gmbh, Dominair. Mulheim-Ruhr, Germany. Dominion Far East Line (Hong Kong) Ltd. Iberia Air Lines of Spain. Dominion Navigation Co., Ltd. Iberia Lineas Aereas Espansolas. Donaldson International Airways. Icelandic Airlines, Inc. (Loftleidir, H.F.). Dorado Wings. Iiho Kaium Kaisha, Ltd. East African Airways. Indo-China Steam Navigation Co., Ltd., The. Egyptair. Inexadria Airways. El Al Israel Airlines. Intercontinental, U.S., Inc. ‘‘ELIOS’’, Soc. di Navigazione p. A., Pa- International Aircraft Services, Inc. lermo. International Airlines, Inc. Ellerman’s Wilson Line, Ltd. Interocean Airways, S.A., Luxembourg. Empresa Ecuatoriana de Aviacion. Iran National Airlines Corporation. Empresa de Transporte Aereo del Pero (Aero- Island Aviation Incorporated. Peru). Italian Line, ‘‘Italia’’ Societa per Azioni di S.A. Empresa de Viacao Aerea Rio Navigazione, Genoa. Grandense (Varig Airlines). Jadrolinija Steamship Co. Empresa Guatemalteca de Aviacion. J. D. Valenciana De Aviacion. Epirotiki Lines, Inc. Japan Airlines. ‘‘Erice’’, Soc. di Navigazione p.A., Palermo. Japan Airlines Co., Inc. Eugenie Maritime Co., Ltd. Jat-Yugoslav Airlines. Europe-Canada Line. Jugoslavenska Linijska Plovidba and/or Eva Air. Jugolinija. Evergreen International Airlines, Inc. Kambara Kisen Co. Ltd. Executive Air Charter. Kawasaki Kisen Kaisha, Ltd. EXPRINTER (SUCRS, S.A.). KIWI International Airlines. Facilities Management Corp. Klaveness Line. Faucett Peruvian Airlines Koninklijke Luchtvaart Maatschappij N. V. Fern-Ville Lines. (K.L.M. Royal Dutch Airlines). Fiesta Cruise Lines, Inc. Korea Shipping Corp., Ltd., Seoul, Korea. Finnair Oy. Korean Air Lines Co., Ltd. Five Star Airlines. Kulukundis Shipping Agency, Inc. Florida Air, Inc. Laeisz, F., Hamburg, Germany. Flugfelag Islands, H.F. (Iceland Airways). Laker Airways Limited. Flying Tiger Line Inc., The Lauretizen, J. Furness-Withy and Co., Ltd. Leeward Islands Air Transport Services Garuda Indonesia. (LIAT). General Airways, Inc. Leisure International Airways. General Steam Navigation Co., Ltd., of Linea Aerea del Cobre, S.A. ‘‘LADECO’’. Greece—Greek Line. Linea Aerea Nacional, Chile.

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Linea Aeropostal Venezolana (LAV). Ocean Tanker Line, Ltd. (Lavino Shipping Lineas Aereas Costarricenses, S.A. (LACSA). Co., Philadelphia, Agents). Lineas Aereas de Nicaragua, S.A. Ocean Tankers, Ltd. Lineas Aereas de Paraguay Sociedad Oceanic Steamship Co., The Anonima Olsen Line, Fred (Fred Olsen & Co.). Lineas Aereas Taxader S.A. Olympic Airways, S.A. Linee Aeree Italiane (ALITALIA). Ontario Central Airlines, Ltd. Livanos Maritime Co., Ltd. Ontario Express, Ltd. (dba Canadian Part- Lloyd Aero Boliviano S.A. ner) Lloyd International Airways, Ltd. Orient Overseas Line. Lot-Polish Airlines. Orient Steam Navigation Co., Ltd. LTU Lufttransport Unternehmen KG. Osaka Shosen Kaisha, Ltd. Lufthansa German Airlines (Deutsche Luft- Overseas National Airways. hansa Aktiengesellschaft). Ozean/Stinnes Linien. Mackey Airlines, Inc. Pacific Australian Direct Line. Malaysian Airline System. Pacific Far East Line, Inc. Malev Hungarian Airlines Pacific Islands Airways, Inc. Mall Airways, Inc. Pacific Islands Transport Line A/S Marchessini Lines. THORDAHL. Marine Mercante Nicaraguense, S.A. Pacific Micronesian Line, Inc. (Mamenic Line). Pacific Ocean Line. Maritime Central Airways, Ltd. Pacific Shipowners, Ltd., Suva, Fiji. Maritime Company of the Philippines. Pacific Steam Navigation Co. Martinair Holland, N.V. Pacific Western Airlines, Ltd. Maui Airlines, Inc. Pakistan International Airlines Corp. McCormick Shipping Corp. Panoceanic Tanker Line, Ltd. ‘‘MEGRA’’ Soc. di Navigazione p.A., Pa- Peninsular & Occidental Steamship Co. lermo. Peninsular & Oriental Steam Navigation Co. Miami Air. Penn Central Co., The Middle East Airlines. Phillippine Air Lines. Mitsui Steamship Co., Ltd. Piedmont Aviation, Inc. Montana Flugbetrieb. Pilgrim Aviation & Airlines, Inc., (d/b/a Pil- Murray Hill Limousine Service Ltd. grim Airlines). N. V. Scheepvaart Maatschappij ‘‘POLINNIA’’ Soc. di Navigazione p.A., Pa- ‘‘Transocean’’ (Trans-Ocean Steamship lermo. Co.). Polynesian Airlines. Naess Shipping Co., Inc. Pomair N.V. National Airlines, Inc. President Airlines, Inc. NATUMEX Lines—Naviera Truistica Presidential Airways, Inc. Mexicana S.A. P.R. Express. Nauru Pacific Line. Pro Air Services. Naviera Aznar Sociedad Anonima. Provo Air, Inc. Nederland Line. Puerto Rico International Airlines, Inc. Netherlands Ministry of Transport and Qantas Empire Airways, Ltd. Waterstaad Directorate-General of Ship- REAL S/A—Transportes Aereos. ping. Red Carpet Airlines, Inc. New Zealand Shipping Co., Ltd., Norton, Rederiaktiebolaget Nordstjernan (Johnson Lilly & Co., Inc., General Agents. Line), Stockholm. Nicaraguense De Aviacion S.A. (NICA). Republic Airlines, Inc. Nigeria Airways Limited. Resort Commuter, Inc. (dba Resorts) Nihonkai Kisen Kaisha. Rich International Airways, Inc. Nippon Cargo Airlines Co., Ltd. Riddle Airlines, Inc. Nippon Yusen Kaisha (N.Y.K. Line). Royal Air Maroc. Nolisair International, Inc. (dba Nationair Royal Hawaiian Air Service. Canada) Royal Mail Lines, Ltd. Nordair Ltd. Royal Netherlands Steamship Co. North American Royal Rotterdam Lloyd. North Central Airlines Inc. SAETA. Northeast Airlines, Inc. Sabena Belgian Air Lines. North German Lloyd Passenger Agency, Inc. Sahsa Honduras Airlines. (see Hapag/Lloyd A.G./North German Lloyd Samoa Airlines. Passenger Agency, Inc.) San Juan Airlines. Northwest Airlines, Inc. Saturn Airways, Inc. Norwegian America Line (Den Norske Saudi Arabian Airlines. Amerikalinje A/S). Scandinavian Airlines System, Inc. Norwegian Caribbean Lines. Scindia Steam Navigation Co., Ltd. Ocean Cargo Line, Ltd. Seven Seas Airlines, Inc.

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Shawnee Airlines, Inc. Universal Airlines, Inc. Shinwa Kaiun Kaisha, Ltd. U.S. Air, Inc. Showa Shipping Co., Ltd. USAfrica Airways, Inc. Sicula Oceanica, S.A. (SIOSA Lines). Varig S.A. (Brasilian Airlines). Singapore Airlines. VASP Brazilian (Viacao Aerea Sao Paulo Skylink Airlines, Ltd. S.A.). Skystar International, Inc. Venezuelan International Airlines, Inc. Skyworld Airlines (dba Ports of Call Air) VIA Rail Canada Inc. Societa Italiana di Armamento Virgin Atlantic Airways, Ltd. ‘‘SIDARMA’’. Wardair Canada Inc. Societa Italiana Transporti Marittimi of Western Airlines. Genoa (Sitmar Line). Westfal Larsen Line. South African Airways. White Star Maritime Co., Ltd. South Pacific Air Lines. Wien Consolidated Airlines, Inc. Southern Airways, Inc. Winchester, J. H., & Co., as agents for Costa Southern Air Transport, Inc. Line. Spantax S.A. Windward Islands Airways International. Standard Airway, Inc. World Airways, Inc. States Steamship Co. Wamashita Steamship Co., Ltd. Sterling Airways A/S. Ybarra & Co., Inc. SUEDFLUG, Sued-deutsche Y. Guahan Airways, Inc./Guam Marianas Air Fluggesellscharft mbH, Stuttgart. Zim Israel Navigation Co., Ltd. SUN LAND Air Lines, Inc. (c) Carrier responsibility. Nothing Surinam Airways Ltd. contained within the provisons of sec- Swedish American Line. tion 286 of the Act shall be deemed to Swiss Air Transport Co., Ltd. (SWISSAIR). waive the carrier’s liability for deten- TACA International Airlines, S.A. Taiwan Navigation Co., Ltd. tion, transportation, and other ex- Texas International Airlines, Inc. penses incurred in the bringing of Thai Airways International, Ltd. aliens to the United States under the The Eastern & Australian Steamship Co., terms of this section. Ltd. Theofano Maritime Co., Ltd. [32 FR 9630, July 4, 1967] Time Air, Inc. EDITORIAL NOTE: For FEDERAL REGISTER ci- Tower Air, Inc. tations affecting § 238.3, see List of CFR Sec- Toyo Yusen Co., Ltd. tions Affected in the Finding Aids section of Transair Limited-Winnipeg, Manitoba. this volume. Transamerica Airlines. Transatlantic Steamship Co., Ltd. § 238.4 Preinspection outside the Unit- (Rederiaktiebolaget Transatlantic). ed States. Transbrasil Airlines. Trans Caribbean Airways, Inc. The following transportation lines Transavia Holland N.V. have entered into agreements on Form Transcontinental S.A. de Transportes C.El. I–425 for the preinspection of their pas- Transglobe Airways, Ltd. sengers and crews at places outside the Translift Airways. United States: Trans Meridian Flying Services, Ltd. Trans Micronesian Airways. AT ARUBA Transocean Airlines. Transportation Corp. of America (Trans Car- Air Aruba. ibbean Airways). Airmark Aviation, Inc. Transportes Aeros Nacionales, S.A. (TAN ALM Antillean Airlines. Airlines). American Airlines, Inc. Transportes Aereos Portugueses S.A.R.L. American Trans Air, Inc. Trans World Airlines, Inc. AvAtlantic. Transworld Express. Carnival Airlines. Trent Maritime Co., Ltd. Express One International, Inc. Triton Shipping, Inc. Jet Fleet Corporation. Turkish Airlines. Miami Air International, Inc. Turks and Caicos. Rich International Airways, Inc. Twentieth Century Airlines. Servicious Avensa S.A. (SERVIVENSA). Union de Transports Aeriens—U.T.A. AT BERMUDA United Air Lines, Inc. United Philippine Line. Air Florida, Inc. United States Lines, Inc. Air Venturers of Houston, Inc. United States Overseas Airlines, Inc. American Airlines, Inc. (Charter Flights United White Shipping Co., Ltd. only).

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American Eagle Airlines, Inc. Air Florida, Inc. American Flyers Airline Corp. Airways International, Inc. AvAtlantic. Bahamas Air Holdings Ltd. Braniff Airways, Inc. Caribbean Express, Inc. British Airways (British Airways Board). Comair, Inc. Capitol Airways, Inc. Delta Air Lines Inc. Continental Airlines. Evergreen International Airlines, Inc. Delta Air Lines, Inc. Express One International, Inc. Flying Tiger Line Inc., The. Gulf Air Transport, Inc. Furness, Withy and Co., Ltd. Gull Air, Inc. Guest Aerovias Mexico, S.A. Key Airlines, Inc. Miami Air International, Inc. Mackey International Airlines. Northeast Airlines, Inc. Miami Air International, Inc. Northeastern International Airways, Inc. Midway Airlines. Northwest Airlines, Inc. Northeastern International Airways, Inc. Piedmont Airlines. Rich International Airways, Inc. Saturn Airways. Sun Country Airlines. Standard Air Ways, Inc. Trinity Air Bahamas. Swedish American Line Agency, Inc. U.S. Air, Inc. Trans International Airlines. United Airlines, Inc. Trans World Airlines, Inc. United Air Lines. AT MONTREAL U.S. Air. Air Alliance, Inc. World Airways, Inc. Air Canada. Air Florida, Inc. AT CALGARY Air France. Air Canada Air Niagara Express, Inc. Air Niagara Express, Inc. Air Ontario, Limited. America West Airlines, Inc. American Airlines, Inc. American Airlines, Inc. American Flyers Airline Corp. Big Sky Airlines. Braniff Airways, Inc. Canadian Airlines International, Ltd. British Airways (British Airways Board). Canadian Pacific Airlines. Canadian Airlines International, Ltd. Cascade Airways, Inc. Canadian Pacific Airlines, Ltd. Express One International, Inc. Capitol Airways, Inc. Miami Air International, Inc. Comair, Inc. Northwest Airlines, Inc. Continental Airlines. Pacific Western Airlines, Ltd. Delta Air Lines, Inc. Time Air, Inc. Deutsche Lufthansa Aktiengesellschaft United Airlines, Inc. (Lufthansa German Airlines). Wardair Canada, Inc. Eagle Airways (Bermuda) Ltd. Western Airlines Inc. Eastern Provincial Airways (1963) Limited. Express One International, Inc. AT DUBLIN McCulloch International Airlines. Air Lingus. Miami Air International, Inc. American Trans Air, Inc. Nordair Ltee—Nordair Ltd. Delta Airlines. Northeast Airlines, Inc. Tower Air. Northwest Airlines. Northwest Airlines, Inc. AT EDMONTON Odyssey International. Ozark Air Lines, Inc. Air Canada. Pilgrim Aviation and Airlines, Inc. Canadian Airlines International, Ltd. Piedmont Aviation, Inc. Canadian Pacific Airlines. Quebecair. Continental Airlines. Quebec/Air Quebec, Inc., (dba Intercanadian). Delta Airlines, Inc. Republic Airlines, Inc. Express One International, Inc. Saturn Airways, Inc. Miami Air International, Inc. Trans-Florida Airlines, Inc. Northwest Airlines, Inc. Trans World Airlines, Inc. Pacific Western Airlines. Transair Limited. Republic Airlines. United Air Lines, Inc. Wardair Canada, Inc. U.S. Air, Inc. Western Air Lines, Inc. Wardair Canada, Inc. Western Skyways, Inc. AT FREEPORT World Airways, Inc. Aerocoach Aviation International, Inc. World Wide Airways, Inc. Aerostar Airlines, Inc. Worldway Airlines Ltd.

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Wright Air Lines Inc. American Flyers Airline Corp. Astral Aviation, Inc., (dba Skyway Airlines). AT NASSAU Atlantic Coast Airlines, (dba United Ex- Aerostar Airlines, Inc. press). Air Canada. Braniff Airways, Inc. Air Venturers of Houston, Inc. British United Airways (Services), Ltd. American Flyers Airline Corp. British West Indian Airways. American International Airways. Caledonian Airways (Prestwick), Ltd. American Trans Air. Canadian Airlines International, Ltd. Bahamasair Holdings Ltd. Canadian Pacific Air Lines, Ltd. Bahamas Airways, Ltd. Capitol Airways, Inc. Best Airlines, Inc. Chautauqua Airlines, Inc., ( dba USAir Ex- British Airways (British Airways Board). press). Capitol Airways, Inc. Conifair Aviation Inc., (dba Royal Airlines). Challenge International Airlines. Dan-Air Services, Ltd. Continental. Eastern Provincial Airways (1963) Limited. Delta Air Lines, Inc. Express One International, Inc. Eagle Airways (Bermuda), Ltd. McCulloch International Airlines. Executive Jet Aviation, Inc. Miami Air International, Inc. Express One International, Inc. Nolisair International, Inc., (dba Nationair Florida Air, Inc. Canada). Flying Tiger Line, Inc., The. Nordair Ltee—Nordair Ltd. Great Lakes Airlines Limited. North Central Airlines, Inc. International Air Bahama, Ltd. Northwest Airlines, Inc. Mackey International Airlines. Odyssey International McCormick Shipping Corp., Eastern Ship- Ozark Air Lines, Inc. ping Corp. Agents. Piedmont Aviation, Inc. Miami Air International, Inc. Pilgrim Aviation and Airlines, Inc. Midway Airlines. Quebecair. Modern Air Transport, Inc. Quebec/Air Quebec, Inc., (dba Intercanadian). National Airlines, Inc. Saturn Airways, Inc. Northeastern International Airways, Inc. Standard Airways, Inc. Piedmont Airlines. Trans World Airlines, Inc. Pro Air Services. Transair Limited. Rich International Airways, Inc. United Air Lines, Inc. Sun Country Airlines. U.S. Air, Inc. Trans Caribbean Airways, Inc. Vacationair. Trans World Airlines, Inc. Wardair Canada, Inc. Trinity Air Bahamas. Wright Air Lines. United Air Lines, Inc. World Airways, Inc. U.S. Air. Worldways Canada Limited. World Airways, Inc. Yugoslav Airlines.

AT PARADISE ISLAND AT VANCOUVER Express One International. Admiral Cruiselines. Paradise Island Airlines, Inc. AirBC. AirCal, Inc. AT PRINCE RUPERT Air Canada. Air Niagara Express, Inc. State of Alaska Department of Public American Airlines, Inc. Works. Westours, Inc. American Flyers Airline Corp. AT SHANNON British Airways (British Airways Board). Canadian Airlines International, Ltd. Aer Lingus. Canadian Pacific Air Lines, Ltd. Aeroflot. Continental Airlines. American Trans Air. Costa Cruise Line. Condor. Delta Airlines, Inc. Gulf Air, Inc., (dba TransOcean Airways). Empire Airlines, Inc. Tower Air. Express One International, Inc. Translift Airways Limited. Great American Airways, Inc. Great Northern Airways, Ltd. AT TORONTO Harbor Airlines, Inc. Air Canada. Holland America Cruises. Air Florida, Inc. International Jet Air, Ltd. Air France. Miami Air International, Inc. Air Ontario, Limited. Monarch Cruise Lines, Inc. American Airlines, Inc. Nomads, Inc.

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P. & O. Inc. § 212.1(e) of this chapter shall enter into P & O Lines (North America) Inc. an agreement on Form I–760. Such Pacific Interstate Airlines. agreements shall be negotiated di- Pacific Western Airlines, Ltd. Paquet Cruise Lines, Inc. rectly by the Central Office and head San Juan Airlines, Inc. offices of the transportation lines. Skylink Airlines. (b) [Reserved] South Pacific Island Airways. Standard Airways, Inc. [52 FR 48084, Dec. 18, 1987] Sundance Cruises, Inc. Trans World Airlines, Inc. PART 239—SPECIAL PROVISIONS United Air Lines, Inc. Universal Airlines, Inc. RELATING TO AIRCRAFT: DES- VCHC Enterprises, Limited. IGNATION OF PORTS OF ENTRY Wardair Canada, Inc. FOR ALIENS ARRIVING BY CIVIL Western Airlines, Inc. AIRCRAFT World Airways, Inc.

AT VICTORIA Sec. 239.1 Definitions. Airwest Canada. 239.2 Landing requirements. B.C. Stena Line, Ltd. Black Ball Transport, Inc. 239.3 Aircraft; how considered. British Columbia Coast Steamship Service. 239.4 International airports for entry of British Columbia Steamship Co. (1975), Ltd. aliens. Canadian Airlines International, Ltd. AUTHORITY: 8 U.S.C. 1103, 1221, and 1229; 66 Canadian Pacific Railway Co. Stat. 173, 195, 203. Clipper Navigation, Inc. Island Jetfoil Corporation. § 239.1 Definitions. Miami Air International, Inc. Northwest Hydrofoil Lines, Inc. (a) Scheduled Airline. This term Royal Cruise Line. means any individual, partnership, cor- Washington State Ferries. poration, or association engaged in air Yarmouth Cruises, Inc. transportation upon regular schedules AT WINNIPEG to, over, or away from the United States, or from one place to another in Aero Trades (Western) Ltd. the United States, and holding a For- Air Canada. Air Niagara Express, Inc. eign Air Carrier permit or a Certificate Aspen Airways, (dba United Express). of Public Convenience and Necessity is- Canadian Airlines International, Ltd. sued pursuant to the Federal Aviation CP Air. Act of 1958 (72 Stat. 731). Express One International, Inc. (b) International Airport. An inter- Frontier Airlines, Inc. national airport is one designated by Holiday Air of America. the Commissioner for the entry of Miami Air International, Inc. Nordair Limited. aliens with the prior approval of the North Central Airlines. Secretary of Commerce, Secretary of Northwest Airlines, Inc. the Treasury and the Secretary of Pacific Western Airlines, Ltd. Health and Human Services. Trans Air, Ltd. (c) Landing Rights Airport. An airport, Trans World Airlines, Inc. although not designated as inter- VCHC Enterprises, Limited. national, at which permission to land Wardair Canada, Inc. has been granted to aircraft operated [32 FR 9630, July 4, 1967] by scheduled airlines by the Commis- EDITORIAL NOTE: For FEDERAL REGISTER ci- sioner of Customs. tations affecting § 238.4, see List of CFR Sec- [49 FR 50018, Dec. 26, 1984] tions Affected in the Finding Aids section of this volume. § 239.2 Landing requirements. § 238.5 Aliens entering Guam pursuant (a) Place of landing. Aircraft carrying to section 14 of Public Law 99–396, passengers or crew required to be in- ‘‘Omnibus Territories Act’’. spected under the Act shall land at the (a) Form I–760 agreements. A transpor- international air ports of entry enu- tation line bringing aliens to Guam merated in part 100 of this chapter un- under the visa waiver provisions of less permission to land elsewhere shall

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first be obtained from the Commis- allow any passenger or crewman there- sioner of Customs in the case of air- on to depart from the landing place craft operated by scheduled airlines, without permission of an immigration and in all other cases from the district officer, unless such departure is nec- director of Customs or other Customs essary for purposes of safety or the officer having jurisdiction over the preservation of life or property. As Customs port of entry nearest the in- soon as practicable, the commanding tended place of landing. Notwithstand- officer or person in command, or the ing the foregoing, aircraft carrying owner of the aircraft, shall commu- passengers or crew required to be in- nicate with the nearest immigration spected under the Act on flights origi- officer and make a full report of the nating in Cuba shall land only at Fort circumstances of the flight and of the Lauderdale-Hollywood Airport, Fort emergency or forced landing. Lauderdale, Florida, unless advance [22 FR 9795, Dec. 6, 1957, as amended at 32 FR permission to land elsewhere has been 9631, July 4, 1967; 45 FR 29243, May 1, 1980; 49 obtained from the District Director of FR 50019, Dec. 26, 1984; 54 FR 102, Jan. 4, 1989; the Immigration and Naturalization 54 FR 1050, Jan. 11, 1989] Service at Miami, Florida. (b) Advance notice of arrival. Aircraft § 239.3 Aircraft; how considered. carrying passengers or crew required to Except as otherwise specifically pro- be inspected under the Immigration vided in the Immigration and National- and Nationality Act, except aircraft of ity Act and this chapter, aircraft arriv- a scheduled airline arriving in according in or departing from the continen- ance with the regular schedule filed tal United States or Alaska directly with the Service at the place of land- from or to foreign contiguous territory ing, shall furnish notice of the intended or the French island of St. Pierre or flight to the immigration officer at or Miquelon shall be regarded for the pur- nearest the intended place of landing, poses of the Immigration and National- or shall furnish similar notice to the ity Act and this chapter as other trans- district director of Customs or other portation lines or companies arriving Customs officer in charge at such or departing over the land borders of place. Such notice shall specify the the United States. Aliens on aircraft type of aircraft, the registration marks arriving overland in foreign contiguous thereon, the name of the aircraft com- territory on journeys which did not mander, the place of last departure, the begin outside of North or South Amer- airport of entry, or other place at ica or islands belonging to countries or which landing has been authorized, to political subdivisions of these con- number of alien passengers, number of tinents shall not be held to be subject citizen passengers, and the estimated to section 212(a)(24) of the Immigration time of arrival. The notice shall be and Nationality Act. sent in sufficient time to enable the of- [22 FR 9795, Dec. 6, 1957] ficers designated to inspect the aircraft to reach the airport of entry or such § 239.4 International airports for entry other place of landing prior to the ar- of aliens. rival of the aircraft. International airports for the entry (c) Permission to discharge or depart. of aliens shall be those airports des- Aircraft carrying passengers or crew ignated as such by the Commissioner. required to be inspected under the Im- An application for designation of an migration and Nationality Act shall airport as an international airport for not discharge or permit to depart any the entry of aliens shall be made to the passenger or crewman without permis- Commissioner and shall state whether sion from an immigration officer. the airport: (a) Has been approved by (d) Emergency or forced landing. the Secretary of Commerce as a prop- Should any aircraft carrying pas- erly equipped airport, (b) has been des- sengers or crew required to be in- ignated by the Secretary of the Treas- spected under the Immigration and Na- ury as a port of entry for aircraft arriv- tionality Act make a forced landing in ing in the United States from any place the United States, the commanding of- outside thereof and for the merchan- ficer or person in command shall not dise carried thereon, and (c) has been

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designated by the Secretary of Health, § 240.1 Definitions. Education, and Welfare as a place for As used in this part: quarantine inspection. An airport shall not be so designated by the Commis- Act means the Immigration and Na- sioner without such prior approval and tionality Act, as amended by the Immi- designation, and unless it appears to gration Act of 1990. the satisfaction of the Commissioner Brief, casual, and innocent absence that conditions render such designa- means a departure from the United tion necessary or advisable, and unless States that satisfies the following cri- adequate facilities have been or will be teria: provided at such airport without cost (1) Each such absence was of short to the Federal Government for the duration and reasonably calculated to proper inspection and disposition of accomplish the purpose(s) for the ab- aliens, including office space and such sence; temporary detention quarters as may (2) The absence was not the result of be found necessary. The designation of an order of deportation, an order of an airport as an international airport voluntary departure, or an administra- for the entry of aliens may be with- tive grant of voluntary departure withdrawn whenever, in the judgment of out the institution of deportation pro- the Commissioner, there appears just ceedings; and cause for such action. (3) The purposes for the absence from the United States or actions while out- [22 FR 9795, Dec. 6, 1957] side of the United States were not contrary to law. PART 240—TEMPORARY PROTECTED Charging document means Form I–221 STATUS FOR NATIONALS OF DES- (Order to Show Cause and Notice of IGNATED STATES Hearing), Form I–221S (Order to Show Cause, Notice of Hearing, and Warrant Sec. for Arrest of Alien) or Form I–122 (No- 240.1 Definitions. tice to Applicant for Admission De- 240.2 Eligibility. tained for Hearing before Immigration 240.3 Applicability of grounds of inadmis- Judge). sibility. Continuously physically present means 240.4 Ineligible aliens. actual physical presence in the United 240.5 Temporary treatment benefits for eli- States for the entire period specified in gible aliens. the regulations. An alien shall not be 240.6 Application. considered to have failed to maintain 240.7 Filing the application. continuous physical presence in the 240.8 Appearance. United States by virtue of brief, casual, 240.9 Evidence. and innocent absences as defined with- 240.10 Decision by the district director or in this section. Administrative Appeals Unit (AAU). 240.11 Renewal of application; appeal to the Continuously resided means residing Board of Immigration Appeals. in the United States for the entire pe- 240.12 Employment authorization. riod specified in the regulations. An 240.13 Termination of temporary treatment alien shall not be considered to have benefits. failed to maintain continuous resi- 240.14 Withdrawal of Temporary Protected dence in the United States by reason of Status. a brief, casual and innocent absence as 240.15 Travel abroad. defined within this section or due 240.16 Confidentiality. merely to a brief temporary trip 240.17 Annual registration. abroad required by emergency or ex- 240.18 Issuance of charging documents; de- tenuating circumstances outside the tention. control of the alien. 240.19 Termination of designation. 240.20 Waiver of fees. Felony means a crime committed in 240.21—240.39 [Reserved] the United States, punishable by imprisonment for a term of more than AUTHORITY: 8 U.S.C. 1103, 1254a, 1254a note. one year, regardless of the term such SOURCE: 56 FR 619, Jan. 7, 1991, unless oth- alien actually served, if any, except: erwise noted. When the offense is defined by the

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State as a misdemeanor and the sen- (d) Is admissible as an immigrant ex- tence actually imposed is one year or cept as provided under § 240.3; less regardless of the term such alien (e) Is not ineligible under § 240.4; and actually served. Under this exception (f)(1) Registers for Temporary Pro- for purposes of section 244A of the Act, tected Status during the initial reg- the crime shall be treated as a mis- istration period; or demeanor. (2) Is or was in valid immigrant or Misdemeanor means a crime commit- nonimmigrant status during the reg- ted in the United States, either: istration period, and registers no later (1) Punishable by imprisonment for a than 30 days from the expiration of term of one year or less, regardless of such status during any subsequent pe- the term such alien actually served, if riod of redesignation, or by February 3, any, or 1994, whichever date is later. (2) A crime treated as a misdemeanor under the term ‘‘felony’’ of this sec- [56 FR 619, Jan. 7, 1991, as amended at 56 FR tion. 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993] For purposes of this definition, any crime punishable by imprisonment for § 240.3 Applicability of grounds of in- a maximum term of five days or less admissibility. shall not be considered a felony or mis- (a) Grounds of inadmissibility not to be demeanor. applied. Paragraphs (4), (5) (A) and (B), Prima facie means eligibility estab- and (7)(A)(i) of section 212(a) of the Act lished with the filing of a completed shall not render an alien ineligible for application for Temporary Protected Temporary Protected Status. Status containing factual information (b) Waiver of grounds of inadmissibility. that if unrebutted will establish a Except as provided in paragraph (c) of claim of eligibility under section this section, the Service may waive 244A(c) of the Act. any other provision of section 212(a) of Register means to properly file, with the Act in the case of individual aliens the district director, a completed ap- for humanitarian purposes, to assure plication, with proper fee, for Tem- family unity, or when the granting of porary Protected Status during the such a waiver is in the public interest. registration period designated under If an alien is inadmissible on grounds section 244A(b) of the Act. which may be waived as set forth in State means any foreign country or this paragraph, he or she shall be ad- part thereof as designated by the At- vised of the procedures for applying for torney General pursuant to section a waiver of grounds of inadmissibility 244A(b) of the Act. on Form I–601 (Application for waiver [56 FR 619, Jan. 7, 1991, as amended at 56 FR of grounds of excludability). 23497, May 22, 1991] (c) Grounds of inadmissibility that may not be waived. The Service may not § 240.2 Eligibility. waive the following provisions of sec- Except as provided in §§ 240.3 and tion 212(a) of the Act: 240.4, an alien may in the discretion of (1) Paragraphs (2)(A)(i), (2)(B), and the district director be granted Tem- (2)(C) (relating to criminals and drug porary Protected Status if the alien es- offenses); tablishes that he or she: (2) Paragraphs (3)(A), (3)(B), (3)(C), (a) Is a national, as defined in section and (3)(D) (relating to national secu- 101(a)(21) of the Act, of a state des- rity); or ignated under section 244A(b) of the (3) Paragraph (3)(E) (relating to those Act; who assisted in the Nazi persecution). (b) Has been continuously physically present in the United States since the [56 FR 619, Jan. 7, 1991, as amended at 58 FR effective date of the most recent des- 58937, Nov. 5, 1993] ignation of that state; (c) Has continuously resided in the § 240.4 Ineligible aliens. United States since such date as the An alien is ineligible for Temporary Attorney General may designate; Protected Status if the alien:

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(a) Has been convicted of any felony § 240.6 Application. or two or more misdemeanors, as de- An application for Temporary Pro- fined in § 240.1, committed in the Unit- tected Status shall be made in accorded States, or ance with § 103.2 of this chapter except (b) Is an alien described in section as provided herein. Each application 243(h)(2) of the Act. must be filed with the fee as provided [56 FR 619, Jan. 7, 1991, as amended at 56 FR in § 103.7 of this chapter, by each indi- 23497, May 22, 1991] vidual seeking Temporary Protected Status, except that the fee for Form I– § 240.5 Temporary treatment benefits 765 will be charged only for those aliens for eligible aliens. who are nationals of El Salvador, and are between the ages of 14 and 65 (in- (a) Prior to the registration period. clusive), and are requesting work au- Prior to the registration period estab- thorization. Each application must lished by the Attorney General, a na- consist of a completed Application for tional of a state designated by the At- Temporary Protected Status (Form I– torney General shall be afforded tem- 821), Application for Employment Au- porary treatment benefits upon the fil- thorization (Form I–765), two coming, after the effective date of such des- pleted fingerprint cards (Form FD–258) ignation, of a completed application for every applicant who is fourteen for Temporary Protected Status which years of age or older, two identification establishes the alien’s prima facie eligi- photographs (11⁄2′′×11⁄2′′), and supporting bility for benefits under section 244A of evidence as provided in § 240.9. the Act. This application may be filed [56 FR 619, Jan. 7, 1991, as amended at 56 FR without fee. Temporary treatment ben- 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993] efits, if granted, shall terminate unless the registration fee is paid or a waiver § 240.7 Filing the application. is sought within the first thirty days of (a) An application for Temporary the registration period designated by Protected Status shall be filed with the the Attorney General. If the registra- district director having jurisdiction tion fee is paid or a waiver is sought over the applicant’s place of residence. within such thirty day period, tem- (b) An application for Temporary porary treatment benefits shall con- Protected Status must be filed during tinue until terminated under § 240.13. the registration period established by The denial of temporary treatment the Attorney General, except in the benefits prior to the registration period case of an alien described in § 240.2(f)(2). designated by the Attorney General (c) Each applicant must pay a fee, as shall be without prejudice to the filing determined at the time of the designa- of an application for Temporary Pro- tion of the foreign state, except as protected Status during such registration vided in § 240.5(a). period. (d) If the alien has a pending deporta- (b) During the registration period. Upon tion or exclusion proceeding before the the filing of an application for Tem- immigration judge or Board of Immi- porary Protected Status, the alien gration Appeals at the time a state is shall be afforded temporary treatment designated under section 244A(b) of the Act, the alien shall be given written benefits, if the application establishes notice concerning Temporary Pro- the alien’s prima facie eligibility for tected Status. Such alien shall have Temporary Protected Status. Such the opportunity to submit an applica- temporary treatment benefits shall tion for Temporary Protected Status continue until terminated under to the district director under § 240.7(a) § 240.13. during the published registration pe- (c) Denied benefits. There shall be no riod unless the basis of the charging appeal from the denial of temporary document, if established, would render treatment benefits. the alien ineligible for Temporary Pro- [56 FR 619, May 22, 1991, as amended at 56 FR tected Status under § 240.3(c) or 240.4. 23497, May 22, 1991] Eligibility for Temporary Protected Status in the latter instance shall be

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decided by the Executive Office for Im- (ii) Birth certificate accompanied by migration Review during such proceed- photo identification; and/or ings. (iii) Any national identity document [56 FR 619, Jan. 7, 1991, as amended at 56 FR from the alien’s country of origin bear- 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993] ing photo and/or fingerprint. (2) Proof of residence. Evidence to es- § 240.8 Appearance. tablish proof of continuous residence in The applicant may be required to ap- the United States during the requisite pear in person before an immigration period of time may consist of any of officer. The applicant may be required the following: to present documentary evidence to es- (i) Employment records, which may tablish his or her eligibility. The appli- consist of pay stubs, W–2 Forms, cer- cant may have a representative as de- tification of the filing of Federal, fined in § 292.1 of this chapter present State, or local income tax returns; let- during any examination. Such rep- ters from employer(s) or, if the appli- resentative shall not directly partici- cant has been self employed, letters pate in the examination; however, such from banks, and other firms with representative may consult with and whom he or she has done business. In provide advice to the applicant. The all of the above, the name of the alien record of examination shall consist of and the name of the employer or other the application, documents relating to interested organization must appear on the application, and the decision of the the form or letter, as well as relevant district director. dates. Letters from employers must be in affidavit form, and shall be signed [56 FR 619, Jan. 7, 1991, as amended at 56 FR and attested to by the employer under 23497, May 22, 1991] penalty of perjury. Such letters from employers must include: § 240.9 Evidence. (A) Alien’s address(es) at the time of (a) Documentation. Applicants shall employment; submit all documentation as required (B) Exact period(s) of employment; in the instructions or requested by the (C) Period(s) of layoff; and Service. The Service may require proof of unsuccessful efforts to obtain docu- (D) Duties with the company. ments claimed to be unavailable. If any (ii) Rent receipts, utility bills (gas, required document is unavailable, an electric, telephone, etc.), receipts, or affidavit or other credible evidence letters from companies showing the may be submitted. dates during which the applicant re- (1) Evidence of identity and nationality. ceived service; Each application must be accompanied (iii) School records (letters, report by evidence of the applicant’s identity cards, etc.) from the schools that the and nationality, if available. If these applicant or his or her children have documents are unavailable, the appli- attended in the United States showing cant shall file an affidavit showing name of school and period(s) of school proof of unsuccessful efforts to obtain attendance; such identity documents, explaining (iv) Hospital or medical records why the consular process is unavail- showing medical treatment or hos- able, and affirming that he or she is a pitalization of the applicant or his or national of the designated state. A per- her children, showing the name of the sonal interview before an immigration medical facility or physician as well as officer shall be required for each appli- the date(s) of the treatment or hos- cant who fails to provide documentary pitalization; proof of identity or nationality. During (v) Attestations by churches, unions, this interview, the applicant may or other organizations of the appli- present any secondary evidence that he cant’s residence by letter which: or she feels would be helpful in showing (A) Identifies applicant by name; nationality. Acceptable evidence in de- (B) Is signed by an official whose scending order of preference may con- title is also shown; sist of: (C) Shows inclusive dates of member- (i) Passport; ship;

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(D) States the address where appli- Such failure shall be excused if the re- cant resided during the membership pe- quest for information, or the notice of riod; the interview was not mailed to the ap- (E) Includes the seal of the organiza- plicant’s most recent address provided tion impressed on the letter or is on to the Service. the letterhead of the organization, if the organization has letterhead sta- [56 FR 619, Jan. 7, 1991, as amended at 56 FR tionery; 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993] (F) Establishes how the attestor § 240.10 Decision by the district direc- knows the applicant; and tor or Administrative Appeals Unit (G) Establishes the origin of the in- (AAU). formation being attested to. (vi) Additional documents to support (a) Temporary treatment benefits. The the applicant’s claim, which may in- district director shall grant temporary clude: treatment benefits to the applicant if (A) Money order receipts for money the applicant establishes prima facie sent in or out of the country; eligibility for Temporary Protected (B) Passport entries; Status in accordance with § 240.5. (C) Birth certificates of children born (b) Temporary Protected Status. Upon in the United States; review of the evidence presented, the (D) Bank books with dated trans- district director may approve or deny actions; the application for Temporary Pro- (E) Correspondence between the ap- tected Status in the exercise of discre- plicant and other persons or organization, consistent with the standards for tions; eligibility in §§ 240.2, 240.3, and 240.4. (F) Social Security card; (c) Denial by district director. The deci- (G) Selective Service card; sion of the district director to deny (H) Automobile license receipts, Temporary Protected Status, a waiver title, vehicle registration, etc; of grounds of inadmissibility, or tem- (I) Deeds, mortgages, contracts to porary treatment benefits shall be in which applicant has been a party; writing served in person or by mail to (J) Tax receipts; the alien’s most recent address pro- (K) Insurance policies, receipts, or vided to the Service and shall state the letters; and/or reason(s) for the denial. Except as oth- (L) Any other relevant document. erwise provided in this section, the (3) Evidence of eligibility under section alien shall be given written notice of 244A(c)(2) of the Act. An applicant has his or her right to appeal a decision de- the burden of showing that he or she is nying Temporary Protected Status. To eligible for benefits under this part. exercise such right, the alien shall file (4) Evidence of valid immigrant or non- a notice of appeal, Form I–290B, with immigrant status. In the case of an alien the district director who issued the de- described in § 240.2(f)(2), Form I–551 or nial. If an appeal is filed, the adminis- Form I–94 must be submitted by the trative record shall be forwarded to the applicant. AAU for review and decision, pursuant (b) Sufficiency of evidence. The sufficiency of all evidence will be judged ac- to authority delegated in § 103.1(f)(2), cording to its relevancy, consistency, except as otherwise provided in this credibility, and probative value. To section. meet his or her burden of proof the ap- (1) If the basis for the denial of the plicant must provide supporting docu- Temporary Protected Status con- mentary evidence of eligibility apart stitutes a ground for deportability or from his or her own statements. excludability which renders the alien (c) Failure to timely respond. Failure ineligible for Temporary Protected to timely respond to a request for in- Status under § 240.4 or inadmissible formation, or to appear for a scheduled under § 240.3(c), the decision shall in- interview, without good cause, will be clude a charging document which sets deemed an abandonment of the applica- forth such ground(s). tion and will result in a denial of the (2) If such a charging document is is- application for lack of prosecution. sued, the alien shall not have the right

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to appeal the district director’s deci- ployment authorization document will sion denying Temporary Protected Sta- act as alien registration. tus as provided in this subsection. The (2) The alien shall be provided with a decision shall also apprise the alien of notice, in English and in the language his or her right to a de novo determina- of the designated state or a language tion of his or her eligibility for Tem- that the alien understands, of the fol- porary Protected Status in deportation lowing benefits: or exclusion proceedings pursuant to (i) The alien shall not be deported §§ 240.11 and 240.18. while maintaining Temporary Pro- (d) Decision by AAU. The decision of tected Status; the AAU shall be in writing served in (ii) Employment authorization; person, or by mail to the alien’s most (iii) The privilege to travel abroad recent address provided to the Service, with the prior consent of the district and, if the appeal is dismissed, the de- director as provided in § 240.15; cision shall state the reason(s) for the (iv) For the purposes of adjustment denial. of status under section 245 of the Act (1) If the appeal is dismissed by the and change of status under section 248 AAU under § 240.18(b), the decision shall of the Act, the alien is considered as also apprise the alien of his or her being in, and maintaining, lawful sta- right to a de novo determination of eli- tus as a nonimmigrant while the alien gibility for Temporary Protected Sta- maintains Temporary Protected Sta- tus in deportation or exclusion pro- tus. ceedings. (v) An alien eligible to apply for (2) If the appeal is dismissed by the Temporary Protected Status under AAU, the district director may issue a § 240.2(f)(2), who was prevented from fil- charging document if no charging doc- ing a late application for registration ument is presently filed with the Immi- because the regulations failed to pro- gration Court. vide him or her with this opportunity, (3) If a charging document has pre- will be considered to have been main- viously been filed or is pending before taining lawful status as a non- the Immigration Court, either party immigrant until the benefit is granted. may move to recalendar the case after (3) The benefits contained in the no- the decision by the AAU. tice are the only benefits the alien is (e) Grant of temporary treatment bene- entitled to under Temporary Protected fits. (1) Temporary treatment benefits Status. shall be evidenced by the issuance of an (4) Such notice shall also advise the employment authorization document. alien of the following: The alien shall be given, in English and (i) The alien must remain eligible for in the language of the designated state Temporary Protected Status; or a language that the alien under- (ii) The alien must register annually stands, a notice of the registration re- with the District Office having juris- quirements for Temporary Protected diction over the alien’s place of resi- Status and a notice of the following dence; and benefits: (iii) The alien’s failure to comply (i) Temporary stay of deportation; with paragraphs (f)(4) (i) or (ii) of this and section will result in the withdrawal of (ii) Temporary employment author- Temporary Protected Status, including ization. work authorization granted under this (2) Unless terminated under § 240.13, Program, and may result in the alien’s temporary treatment benefits shall re- deportation from the United States. main in effect until a final decision has [56 FR 619, Jan. 7, 1991, as amended at 56 FR been made on the application for Tem- 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993; porary Protected Status. 60 FR 34090, June 30, 1995] (f) Grant of temporary protected status. (1) The decision to grant Temporary § 240.11 Renewal of application; appeal Protected Status shall be evidenced by to the Board of Immigration Ap- the issuance of an alien registration peals. document. For those aliens requesting If a charging document is served on employment authorization, the em- the alien with a notice of denial or

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withdrawal of Temporary Protected of the termination of a state’s designa- Status, an alien may renew the appli- tion under section 244A(b)(3) of the Act. cation for Temporary Protected Status in deportation or exclusion proceed- § 240.14 Withdrawal of Temporary Pro- ings. The decision of the immigration tected Status. judge as to eligibility for Temporary (a) Authority of district director. The Protected Status may be appealed to district director may withdraw the sta- the Board of Immigration Appeals pur- tus of an alien granted Temporary Pro- suant to § 3.3 of this chapter. The provi- tected Status under section 244A of the sions of this section do not extend the Act at any time upon the occurrence of benefits of Temporary Protected Sta- any of the following: tus beyond the termination of a state’s (1) The alien was not in fact eligible designation pursuant to § 240.19. at the time such status was granted, or at any time thereafter becomes ineli- [56 FR 619, Jan. 7, 1991, as amended at 56 FR gible for such status; 23497, May 22, 1991] (2) The alien has not remained continuously physically present in the § 240.12 Employment authorization. United States from the date the alien (a) Upon approval of an application was first granted Temporary Protected for Temporary Protected Status, the Status under this part. For the purpose INS shall grant an employment author- of this provision, an alien granted ization document valid during the ini- Temporary Protected Status under this tial period of the state’s designation part shall be deemed not to have failed (and any extensions of such period) or to maintain continuous physical pres- twelve (12) months, whichever is short- ence in the United States if the alien er. departs the United States after first (b) If the alien’s Temporary Pro- obtaining permission from the district tected Status is withdrawn under director to travel pursuant to § 240.15; § 240.14, employment authorization ex- (3) The alien fails without good cause pires upon notice of withdrawal or on to register with the Attorney General the date stated on the employment au- annually within thirty (30) days before thorization document, whichever oc- the end of each 12-month period after curs later. the granting of Temporary Protected (c) If Temporary Protected Status is Status. denied by the INS, employment author- (b) Decision by district director. (1) ization shall terminate upon notice of Withdrawal of an alien’s status under denial or at the expiration of the em- paragraph (a) of this section shall be in ployment authorization document, writing and served by personal service whichever occurs later. pursuant to § 103.5(a) of this chapter. If (d) If the application is renewed or the ground for withdrawal is appealed in deportation or exclusion § 240.14(a)(3), the notice shall provide proceedings, or appealed to the Admin- that the alien has thirty (30) days with- istrative Appeals Unit pursuant to in which to provide evidence of good § 240.18(b), employment authorization cause for failure to register. If the will be extended during the pendency of alien fails to respond within thirty (30) the renewal and/or appeal. days, Temporary Protected Status shall be withdrawn without further no- [56 FR 619, Jan. 7, 1991, as amended at 56 FR tice. 23498, May 22, 1991; 60 FR 21975, May 4, 1995] (2) Withdrawal of the alien’s Tem- porary Protected Status under para- § 240.13 Termination of temporary graph (b)(1) of this section may subject treatment benefits. the applicant to exclusion or deporta- (a) Temporary treatment benefits tion proceedings under section 236 or terminate upon a final determination section 242 of the Act as appropriate. with respect to the alien’s eligibility (3) If the basis for the withdrawal of for Temporary Protected Status. Temporary Protected Status con- (b) Temporary treatment benefits stitutes a ground of deportability or terminate, in any case, sixty (60) days excludability which renders an alien after the date that notice is published ineligible for Temporary Protected

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Status under § 240.4 or inadmissible third party requester without a court under § 240.3(c), the decision shall in- order, or the written consent of the clude a charging document which sets alien. For the purpose of this provision, forth such ground(s) with notice of the a third party requester means any re- right of a de novo determination of eli- quester other than the alien, his or her gibility for Temporary Protected Sta- authorized representative, an officer of tus in deportation or exclusion pro- the Department of Justice, or any fed- ceedings. If the basis for withdrawal eral or State law enforcement agency. does not constitute such a ground, the Any information provided under this alien shall be given written notice of part may be used for purposes of en- his or her right to appeal to the AAU. forcement of the Act or in any criminal Upon receipt of an appeal, the adminis- proceeding. trative record will be forwarded to the AAU for review and decision pursuant § 240.17 Annual registration. to the authority delegated under (a) Aliens granted Temporary Pro- § 103.1(f)(2). Temporary Protected Sta- tected Status must register annually tus benefits will be extended during the with the INS designated office having pendency of an appeal. jurisdiction over their place of resi- (c) Decision by AAU. If a decision to dence. Such registration will apply to withdraw Temporary Protected Status nationals of those countries designated is entered by the AAU, the AAU shall or redesignated for more than one year notify the alien of the decision and the by the Attorney General pursuant to right to a de novo determination of eli- section 244A(b) of the Act. Registration gibility for Temporary Protected Sta- may be accomplished by mailing or tus in deportation or exclusion pro- submitting in person, depending on the ceedings, if the alien is then deportable practice in place at the INS designated or excludable, as provided by § 240.10(d). office, completed Forms I–821 and I–765 [56 FR 619, Jan. 7, 1991, as amended at 56 FR within the thirty (30) day period prior 23498, May 22, 1991] to the anniversary of the grant of Tem- porary Protected Status (inclusive of § 240.15 Travel abroad. such anniversary date). Form I–821 will (a) After the grant of Temporary Pro- be filed without fee. Form I–765 will be tected Status, the alien must remain filed with fee only if the alien is re- continuously physically present in the questing employment authorization. United States under the provisions of Completing the block on the I–821 at- section 244A(c)(3)(B) of the Act. The testing to the continued maintenance grant of Temporary Protected Status of the conditions of eligibility will gen- shall not constitute permission to trav- erally preclude the need for supporting el abroad. Permission to travel may be documents or evidence. The Service, granted by the district director pursu- however, reserves the right to request ant to the Service’s advance parole additional information and/or docu- provisions. There is no appeal from a mentation on a case-by-case basis. denial of advance parole. (b) Unless the Service determines (b) Failure to obtain advance parole otherwise, registration by mail shall prior to the alien’s departure from the suffice to meet the alien’s registration United States may result in the with- requirements. However, as part of the drawal of Temporary Protected Status registration process, an alien will gen- and/or the institution or recalendering erally have to appear in person in order of deportation or exclusion proceedings to secure a renewal of employment au- against the alien. thorization unless the Service deter- [56 FR 619, Jan. 7, 1991, as amended at 56 FR mines that employment authorization 23498, May 22, 1991] will be extended in another fashion due to operational need. The Service may § 240.16 Confidentiality. also request that an alien appear in The information contained in the ap- person as part of the registration proc- plication and supporting documents ess. In such cases, failure to appear submitted by an alien shall not be re- without good cause shall be deemed a leased in any form whatsoever to a failure to register under this chapter.

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(c) Failure to register without good alien’s place of residence. The district cause will result in the withdrawal of director shall, as soon as practicable, the alien’s Temporary Protected Sta- file a charging document with the Im- tus. migration Court if the alien is then deportable or excludable under section [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 21975, May 4, 1995] 241(a) or section 212(a) of the Act, respectively. § 240.18 Issuance of charging docu- (d) An alien who is determined by the ments; detention. Service to be deportable or excludable (a) A charging document may be is- upon grounds which would have ren- sued against an alien granted Tem- dered the alien ineligible for such sta- porary Protected Status on grounds of tus as provided in §§ 240.3(c) and 240.4 deportability or excludability which may be detained under the provisions would have rendered the alien statu- of this chapter pending deportation or torily ineligible for such status pursu- exclusion proceedings. Such alien may ant to §§ 240.3(c) and 240.4. Aliens shall be removed from the United States not be deported for a particular offense upon entry of a final order of deporta- for which the Service has expressly tion or exclusion. granted a waiver. If the alien is deport- [56 FR 619, Jan. 7, 1991, as amended at 56 FR able on a waivable ground, and no such 23498, May 22, 1991; 60 FR 34090, June 30, 1995] waiver for the charged offense has been previously granted, then the alien may § 240.19 Termination of designation. seek such a waiver in deportation or Upon the termination of designation exclusion proceedings. The charging of a state, those nationals afforded document shall constitute notice to temporary Protected Status shall, the alien that his or her status in the upon the sixtieth (60th) day after the United States is subject to withdrawal. date notice of termination is published A final order of deportation or exclu- in the FEDERAL REGISTER, or on the sion against an alien granted Tem- last day of the most recent extension porary Protected Status shall con- of designation by the Attorney Gen- stitute a withdrawal of such status. eral, automatically and without fur- (b) The filing of the charging docu- ther notice or right of appeal, lose ment by the Service with the Immigra- Temporary Protected Status in the tion Court renders inapplicable any United States. Such termination of a other administrative, adjudication or state’s designation is not subject to ap- review of eligibility for Temporary peal. Protected Status. The alien shall have the right to a de novo determination of § 240.20 Waiver of fees. his or her eligibility for Temporary (a) Any of the fees prescribed in 8 Protected Status in the deportation or CFR 103.7(b) which relate to applica- exclusion proceedings. Review by the tions to the district director or service Board of Immigration Appeals shall be center director for Temporary Pro- the exclusive administrative appellate tected Status may be waived if the ap- review procedure. If an appeal is al- plicant establishes that he or she is un- ready pending before the Administra- able to pay the prescribed fee. The ap- tive Appeals Unit, the district director plicant will have established his or her shall notify the Administrative Ap- inability to pay when the adjudicating peals Unit of the filing of the charging officer concludes, on the basis of the document, in which case the pending requisite affidavit and of any other in- appeal shall be dismissed and the formation submitted, that it is more record of proceeding returned to the probable than not that: district where the charging document (1) The applicant’s gross income from was filed. all sources for the three-month period (c) Upon denial of Temporary Pro- prior to the filing of the fee waiver re- tected Status by the Administrative quest, including income received or Appeals Unit, the Administrative Ap- earned by any dependent in the United peals Unit shall immediately forward States, was equaled or exceeded by es- the record of proceeding to the district sential expenditures for such three- director having jurisdiction over the month period; and

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(2) The applicant does not own, pos- dress of each dependent’s place of resi- sess, or control assets sufficient to pay dence. the fee without substantial hardship. (2) The applicant may also submit (b) For purposes of this section, es- other documentation tending to sub- sential expenditures are limited to rea- stantiate his or her inability to pay. sonable expenditures for rent, utilities, (f) If the adjudicating officer con- food, transportation to and from em- cludes based upon the totality of their ployment, and any essential extraor- circumstances that the information dinary expenditures, such as essential presented in the affidavit and in any medical expenses, or expenses for other additional documentation is in- clothing, laundry, and child care, to accurate or insufficient, the adjudicat- the extent that the applicant can show ing officer may require that the appli- that those expenditures made during cant submit the following additional the three-month period prior to the fil- documents prior to the adjudication of ing of the fee waiver request were rea- a fee waiver: sonable and essential to his or her (1) The applicant’s employment physical well-being or to earning a records, pay stubs, W–2 forms, letter(s) livelihood. from employer(s), and proof of filing of (c) For purposes of this section, the a local, state, or federal income tax re- TPS registration fee (including the fee turn. The same documents may also be for employment authorization, if appli- required from the applicant’s depend- cable) shall be considered an essential ents in the United States. expenditure. A fee waiver will be grant- (2) The applicant’s rent receipts, bills ed if the sum of the fees for TPS reg- for essential utilities (for example, gas, istration and employment authoriza- electricity, telephone, water), food, tion equals or exceeds income and as- medical expenses, and receipts for sets that remain after deducting other other essential expenditures. essential expenditures. (3) Documentation to show all assets (d) If an adjudicating officer is satis- owned, possessed, or controlled by the fied that an applicant has established applicant or by dependents of the appli- inability to pay, he or she shall not cant. deny a fee waiver due to the cost of ad- (4) Evidence of the applicant’s living ministering the TPS program. arrangements in the United States (liv- (e) For purposes of this section, the ing with relative, living in his or her following documentation shall be re- own house or apartment, etc.), and evi- quired: dence of whether his or her spouse, (1) The applicant seeking a fee waiver children, or other dependents are resid- must submit an affidavit, under pen- ing in his or her household in the Unit- alty of perjury, setting forth informa- ed States. tion to establish that he or she satis- (5) Evidence of the applicant’s essen- fies the requirements of this section. tial extraordinary expenditures or The affidavit shall individually list: those of his or her dependents residing (i) The applicant’s monthly gross in- in the United States. come from each source for each of the (g) The adjudicating officer must three months prior to the filing of the consider the totality of the informa- fee waiver request; tion submitted in each case before re- (ii) All assets owned, possessed, or quiring additional information or ren- controlled by the applicant or by his or dering a final decision. her dependents; (h) All documents submitted by the (iii) The applicant’s essential month- applicant or required by the adjudicat- ly expenditures, itemized for each of ing officer in support of a fee waiver re- the three months prior to the filing of quest are subject to verification by the the fee waiver request, including essen- Service. tial extraordinary expenditures; and (i) In requiring additional informa- (iv) The applicant’s dependents in the tion, the adjudicating officer should United States, his or her relationship consider that some applicants may to those dependents, the dependents’ have little or no documentation to sub- ages, any income earned or received by stantiate their claims. An adjudicating those dependents, and the street ad- officer may accept other evidence, such

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as an affidavit from a member of the 242.12 Interpreter. community of good moral character, 242.13 Postponement and adjournment of but only if the applicant provides an hearing. affidavit stating that more direct docu- 242.14 Evidence. 242.15 Contents of record. mentary evidence in unavailable. 242.16 Hearing. [57 FR 34507, Aug. 5, 1992] 242.17 Ancillary matters, applications. 242.18 Decision of the immigration judge. §§ 240.21—240.39 [Reserved] 242.19 Notice of decision. 242.20 Finality of order. 242.21 Appeals. PART 241—CONTROLLED 242.22 Reopening or reconsideration. SUBSTANCE VIOLATIONS 242.23 Proceedings under section 242(f) of the Act. AUTHORITY: 8 U.S.C. 1103, 1251, 1252, 1357; 8 242.24 Detention and release of juveniles. CFR part 2. 242.25 Proceedings under section 242A(b) of the Act. § 241.1 Controlled substance convic- 242.26 Deportation of S–5, S–6, and S–7 non- tions. immigrant. In determining the deportability of AUTHORITY: 8 U.S.C. 1103, 1182, 1186a, 1251, an alien who has been convicted of a 1252, 1252 note, 1252a, 1252b, 1254, 1362; 8 CFR violation of any law or regulation of a part 2. State, the United States, or a foreign country relating to a controlled sub- § 242.1 Order to show cause and notice of hearing. stance, the term controlled substance as used in section 241(a)(2)(B)(i) of the (a) Commencement. Every proceeding Act, shall mean the same as that ref- to determine the deportability of an erenced in the Controlled Substances alien in the United States is com- Act, 21 U.S.C. 801, et seq., and shall in- menced by the filing of an order to clude any substance contained in show cause with the Office of the Im- Schedules I through V of 21 CFR 1308.1, migration Judge, except for an alien et seq. For the purposes of this section, who has been admitted to the United the term controlled substance includes States under the provisions of section controlled substance analogues as de- 217 of the Act and Part 217 of this chap- fined in 21 U.S.C. 802(23) and 813. ter other than such an alien who has applied for asylum in the United [53 FR 9282, Mar. 22, 1988. Redesignated at 56 States. In the proceeding, the alien FR 8906, Mar. 4, 1991, and amended at 56 FR shall be known as the respondent. Or- 38333, Aug. 13, 1991] ders to show cause may be issued by: (1) District directors (except foreign); PART 242—PROCEEDINGS TO DE- (2) Deputy district directors (except TERMINE DEPORTABILITY OF foreign); ALIENS IN THE UNITED STATES: (3) Assistant district directors for in- APPREHENSION, CUSTODY, vestigations; HEARING, AND APPEAL (4) Deputy assistant district directors for investigations; Sec. (5) Assistant district directors for de- 242.1 Order to show cause and notice of portation; hearing. (6) Deputy assistant district directors 242.2 Apprehension, custody, and detention. for deportation; 242.3 Confined aliens, incompetents, and mi- (7) Assistant district directors for ex- nors. 242.4 Fingerprints and photographs. aminations; 242.5 Voluntary departure prior to com- (8) Deputy assistant district directors mencement of hearing. for examinations; 242.6 Family Unity Program. (9) Officers in charge (except foreign); 242.7 Cancellation proceedings. (10) Assistant officers in charge (ex- 242.7a Waiver of documents; returning resi- cept foreign); dents. 242.8 Immigration judges. (11) Chief patrol agents; 242.9 Trial attorney. (12) Deputy chief patrol agents; 242.10 Representation by counsel. (13) Associate chief patrol agents; 242.11 Incompetent respondents. (14) Assistant chief patrol agents;

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(15) Patrol agents in charge; (d) Visa Waiver Pilot Program. Pursu- (16) The Assistant Commissioner, In- ant to section 217(b)(4)(B) of the Act, vestigations; an alien who has been admitted to the (17) Service center directors; United States under the provisions of (18) Supervisory asylum officers; or that section has waived any right to (19) Institutional Hearing Program contest any action against him or her Directors. for deportation, other than on the basis of an application for asylum. An alien (b) Statement of Nature of Proceedings. admitted to the United States under The Order to Show Cause shall contain section 217 of the Act shall be taken a statement of the nature of the pro- into custody and removed from the ceeding, the legal authority under United States upon a determination by which the proceeding is conducted, a an immigration officer (district direc- concise statement of factual allega- tor who has jurisdiction over the place tions informing the respondent of the where the alien is found) that the alien act or conduct alleged to be in viola- is deportable in accordance with proce- tion of the law, and a designation of dures in § 217.4(c) of this chapter, and the charge against the respondent and without commencement of a proceed- of the statutory provisions alleged to ing under this part, except that such an have been violated. The Order shall re- alien who applies for asylum in the quire the respondent to show cause United States shall be brought into why he should not be deported. The proceedings as otherwise provided in Order shall call upon the respondent to this part. appear before an Immigration Judge for a hearing at a time and place which [22 FR 9796, Dec. 6, 1957, as amended at 44 FR 4653, Jan. 23, 1979; 52 FR 2939, Jan. 29, 1987; 52 shall be specified by the Immigration FR 3098, Jan. 30, 1987; 52 FR 5616, Feb. 25, Court. 1987; 53 FR 24903, June 30, 1988; 55 FR 1579, (c) Service. Service of the order to Jan. 17, 1990; 55 FR 12627, Apr. 5, 1990; 56 FR show cause may be accomplished either 18502, Apr. 23, 1991; 56 FR 50812, Oct. 9, 1991; by personal service or by routine serv- 59 FR 42414, Aug. 17, 1994; 60 FR 34090, June ice; however, when routine service is 30, 1995; 61 FR 8859, Mar. 6, 1996] used and the respondent does not ap- § 242.2 Apprehension, custody, and de- pear for hearing or acknowledge in tention. writing that he has received the order (a) Detainers in general. (1) A detainer to show cause, it shall be reserved by may be issued only in the case of an personal service. When personal deliv- alien who there is reason to believe is ery of an order to show cause is made amenable to exclusion or deportation by an immigration officer, the contents proceedings under any provision of law. of the order to show cause shall be ex- The following immigration officers are plained and the respondent shall be ad- hereby authorized to issue detainers: vised that any statement he makes (i) Border patrol agents, including may be used against him. He shall also aircraft pilots; be advised of his right to representa- (ii) Special agents; tion by counsel of his own choice at no (iii) Deportation officers; expense to the Government. He shall (iv) Immigration inspectors; also be advised of the availability of (v) Immigration examiners; free legal services programs qualified (vi) Supervisory and managerial per- under part 292a of this chapter and or- sonnel who are responsible for super- ganizations recognized pursuant to vising the activities of those officers § 292.2 of this chapter, located in the listed above; and district where his deportation hearing (vii) Immigration officers who need will be held. He shall be furnished with the authority to issue detainers in a list of such programs, and a copy of order to effectively accomplish their Form I–618, Written Notice of Appeal individual missions and who are des- Rights, regardless of the manner in ignated, individually or as a class, by which the service of the order to show the Commissioner. cause was accomplished. Service of (2) Availability of records. In order for these documents shall be noted on the Service to accurately determine Form I–213. the propriety of issuing a detainer,

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serving an order to show cause, or tak- case of a respondent convicted on or ing custody of an alien in accordance after November 18, 1988, of an aggra- with this section, the criminal justice vated felony as defined in section agency requesting such action or in- 101(a)(43) of the Act, the respondent forming the Service of a conviction or shall not be released from custody, ei- act which renders an alien excludable ther before or after a determination of or deportable under any provision of deportability, unless the respondent law shall provide the Service with all has been lawfully admitted and the re- documentary records and information spondent demonstrates to the satisfac- available from the agency which rea- tion of the district director that he or sonably relates to the alien’s status in she is not a threat to the community the United States, or which may have and is likely to appear before any an impact on conditions of release. scheduled hearings. A warrant of arrest (3) Telephonic detainers. Issuance of a may be served only by those immigra- detainer in accordance with this section officers listed in § 287.5(e)(2) of this tion may be authorized telephonically, chapter. A warrant of arrest may be is- provided such authorizations are con- sued only by the following immigration firmed in writing on Form I–247, or by officers: electronic communications transfer (i) District directors (except foreign); media (e.g. the National Law Enforce- (ii) Deputy district directors (except ment Telecommunications System foreign); (NLETS)) within twenty-four hours of (iii) Assistant district directors for the telephonic authorization. The con- investigations; tents of the electronic transfer shall (iv) Deputy assistant district direc- contain substantially the same lan- tors for investigations; guage as the Form I–247. (v) Assistant district directors for de- (4) Temporary detention at Service re- portation; quest. Upon a determination by the (vi) Deputy assistant district direc- Service to issue a detainer for an alien tors for deportation; not otherwise detained by a criminal (vii) Assistant district directors for justice agency, such agency shall main- examinations; tain custody of the alien for a period (viii) Deputy assistant district direc- not to exceed forty-eight hours, in tors for examinations; order to permit assumption of custody (ix) Officers in charge (except for- by the Service. eign); (5) Financial responsibility for deten- (x) Assistant officers in charge (ex- tion. No detainer issued as a result of a cept foreign); determination made under this chapter (xi) Chief patrol agents; shall incur any fiscal obligation on the (xii) Deputy chief patrol agents; part of the Service, until actual as- (xiii) Associate chief patrol agents; sumption of custody by the Service, ex- (xiv) Assistant chief patrol agents; cept as provided in paragraph (a)(4) of (xv) Patrol agents in charge; this section. (xvi) The Assistant Commissioner, (b) Use of convictions. The term con- Investigations; or viction as used in section 242(i) of the (xvii) Institutional Hearing Program Act means that— Directors. (1) There has been a conviction by a (2) If, after the issuance of a warrant court of competent jurisdiction; and of arrest, a determination is made not (2) All direct appeal rights have been to serve it, any officer authorized to exhausted or waived; or issue such warrant may authorize its (3) The appeal period has lapsed. cancellation. When a warrant of arrest (c) Warrant of arrest. (1) At the time is served under this part, the respond- of issuance of the Order to Show Cause, ent shall have explained to him/her the or at any time thereafter and up to the contents of the order to show cause, time the respondent becomes the sub- the reason for the arrest and the right ject of a duly issued warrant of depor- to be represented by counsel of his/her tation, the respondent may be arrested own choice at no expense to the Gov- and taken into custody under the au- ernment. He/she shall also be advised of thority of a warrant of arrest. In the the availability of free legal services

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programs qualified under part 292a of spondent in custody, or to release a re- this chapter and organizations recog- spondent from custody, and to deter- nized pursuant to § 292.2 of this chapter, mine whether a respondent shall be re- located in the district where the depor- leased under bond, and the amount of tation hearing will be held. The re- the bond, if any. Application for the ex- spondent shall be furnished with a list ercise of such authority shall be made of such programs, and a copy of Form pursuant to § 3.19 of this chapter. In I–618, Written Notice of Appeal Rights. connection with such application, the Service of these documents shall be Immigration Judge shall advise the re- noted on Form I–213. The respondent spondent of his or her right to rep- shall be advised that any statement resentation by counsel of his or her made may be used against him/her. He/ choice at no expense to the govern- she shall also be informed whether cus- ment. He or she shall also be advised of tody is to be continued or, if release the availability of free legal services from custody has been authorized, of programs qualified under part 292a of the amount and conditions of the bond this chapter and organizations recog- or the conditions of release. Except in nized pursuant to § 292.2 of this chapter, cases involving an alien convicted on located in the district where his or her or after November 18, 1988, of an aggra- application is heard. The Immigration vated felony as defined in section Judge shall ascertain that the respond- 101(a)(43) of the Act, a respondent on ent has received a list of such programs whom a warrant of arrest has been and a copy of Form I–618 Written No- served may apply to any officer author- tice of Appeal Right. Moreover, if the ized by this section to issue such a war- respondent has been released from cus- rant for release or for amelioration of tody, an application for amelioration the conditions under which he/she may be released. When serving the warrant of conditions must be made within of arrest and when determining any ap- seven (7) days after the date of such re- plication pertaining thereto, the au- lease. Thereafter, application by a re- thorized officer shall furnish the released respondent for modification of spondent with a notice of decision, the terms of release may be made only which may be on Form I–286, indicating to the District Director. Upon render- whether custody will be continued or ing a decision on an application under terminated, specifying any conditions this section, the Immigration Judge (or under which release is permitted, and the district director if he renders the advising the respondent appropriately decision) shall advise the alien of his or whether he/she may apply to an immi- her appeal rights under this section. gration judge pursuant to paragraph The alien and the Service may appeal (d) of this section for release or modi- to the Board of Immigration Appeals fication of the conditions of release or from any determination of the Immi- whether he/she may appeal to the gration Judge as to custody status or Board. A direct appeal to the Board bond, pursuant to § 3.38 of this chapter. from a determination by an officer au- If the determination is appealed, a thorized by this section to issue war- written memorandum shall be prepared rants shall not be allowed except as au- by the Immigration Judge giving rea- thorized by paragraph (d) of this sec- sons for the decision. After a deportation. tion order becomes administratively (d) Authority of the Immigration Judge; final, or if recourse to the Immigration Appeals. After an initial determination Judge is no longer available because pursuant to paragraph (c) of this sec- the seven day period established by tion, and at any time before a deporta- this paragraph has expired, the re- tion order becomes administratively spondent may appeal directly to the final, upon application by the respond- Board from a determination by the Dis- ent for release from custody or for trict Director, Acting District Direc- amelioration of the conditions under tor, Deputy District Director, Assist- which he or she may be released, an ant District Director for Investiga- Immigration Judge may exercise the tions, or Officer in charge of an office authority contained in section 242 of enumerated in § 242.1(a). Such an appeal the Act to continue to detain a re- shall be perfected by filing a notice of

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appeal with the District Director with- appropriate consular or diplomatic of- in 10 days after the date when written ficers whenever nationals of the follow- notification of the determination is ing countries are detained in exclusion served upon the respondent and the or expulsion proceedings, whether or Service, except that no appeal shall be not requested by the alien and even if allowed when the Service notifies the the alien requests that no communica- alien that it is ready to execute the tion be undertaken in his or her behalf: order of deportation and takes him Albania 1 into custody for that purpose. Upon the Antigua filing of a notice of appeal from a Dis- Armenia trict Director’s determination, the Dis- Azerbaijan trict Director shall immediately trans- Bahamas mit to the Board all records and infor- Barbados mation pertaining to that determina- Belarus Belize tion. The filing of an appeal from a de- Brunei termination of an Immigration Judge Bulgaria or a District Director shall not operate China (People’s Republic of) 2 to delay compliance, during the pend- Costa Rica ency of the appeal, with the custody di- Cyprus rective from which the appeal is taken, Czech Republic or to stay the administrative proceed- Dominica Fiji ings or deportation. Gambia, The (e) Revocation. When an alien who, Georgia having been arrested and taken into Ghana custody, has been released, such re- Grenada lease may be revoked at any time in Guyana the discretion of the district director, Hungary Jamaica acting district director, deputy district Kazakhstan director, assistant district director for Kiribati investigations, or officer in charge of Kuwait an office enumerated in § 242.1(a), in Kyrgyzstan which event the alien may be taken Malaysia into physical custody and detained. If Malta detained, unless a breach has occurred, Mauritius Moldova any outstanding bond shall be revoked Mongolia and cancelled. The provisions of para- Nigeria graph (d) of this section shall govern Philippines availability to the respondent of re- Poland course to other administrative author- Romania ity for release from custody. Russian Federation (f) Supervision. Until an alien against St. Kitts/Nevis St. Lucia whom a final order of deportation has St. Vincent/Grenadines been outstanding for more than six Seychelles months is deported, he shall be subject Sierra Leone to supervision by a district director, Singapore acting district director, deputy district Slovak Republic director, assistant district director for South Korea investigations, or officer in charge of Tajikistan Tanzania an office enumerated in § 242.1(a), and Tonga required to comply with the provisions Trinidad/Tobago of section 242(d) of the Act relating to Turkmenistan his availability for deportation. Tuvalu (g) Privilege of communication. Every Ukraine detained alien shall be notified that he United Kingdom 3 4 or she may communicate with the con- U.S.S.R. Uzbekistan sular or diplomatic officers of the Zambia country of his or her nationality in the 1. Arrangements with these countries pro- United States. Existing treaties re- vide that U.S. authorities shall notify require immediate communication with sponsible representatives within 72 hours of

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the arrest or detention of one of their na- cluding the giving of a bond. If an ap- tionals. pearance bond is prescribed as a condi- 2. When Taiwan nationals (who carry ‘‘Re- tion of such release, it shall be in an public of China’’ passports) are detained, notification should be made to the nearest of- appropriate and sufficient amount to fice of the Coordination Council for North encourage compliance with demands American Affairs, the unofficial entity rep- for appearance and with any other con- resenting Taiwan’s interests in the United ditions of release. States. (i) Notification to Executive Office for 3. British dependencies are also covered by this agreement. They are: Anguilla, British Immigration Review of change in custody Virgin Islands, Hong Kong, Bermuda, status. The Service shall notify the Im- Montserrat, and the Turks and Caicos Is- migration Court having administrative lands. Their residents carry British pass- control over the Record of Proceeding ports. of any change in custody location or of 4. All U.S.S.R. successor states are covered release from, or subsequent taking by this agreement. They are: Armenia, Azer- baijan, Belarus, Georgia, Kazakhstan, into, Service custody of a respondent/ Kyrgyzstan, Moldova, Russian Federation, applicant pursuant to 8 CFR 3.19(g). Tajikistan, Turkmenistan, Ukraine, and [28 FR 8280, Aug. 13, 1963, as amended at 39 Uzbekistan. FR 20367, June 10, 1974; 39 FR 20959, June 17, (h) Custody issues; release procedures. 1974; 40 FR 30470, July 21, 1975; 48 FR 31005, (1) A lawful permanent resident alien July 6, 1983; 51 FR 34081, Sept. 25, 1986; 52 FR convicted of an aggravated felony may 2939, Jan. 29, 1987; 52 FR 16372, May 5, 1987; 53 be released from custody, after having FR 9283, Mar. 22, 1988; 55 FR 1579, Jan. 17, completed serving the sentence for 1990; 55 FR 24859, June 19, 1990; 55 FR 43327, such conviction, if the Attorney Gen- Oct. 29, 1990; 56 FR 18503, Apr. 23, 1991; 56 FR eral determines that he or she is not a 23214, May 21, 1991; 57 FR 11573, Apr. 6, 1992; danger to the community and that he 57 FR 30898, July 13, 1992; 59 FR 42415, Aug. 17, 1994; 60 FR 16043, Mar. 29, 1995; 60 FR 34090, or she is likely to appear for all sched- June 30, 1995; 61 FR 8859, Mar. 6, 1996] uled hearings. Review of each case to determine custody or release condi- § 242.3 Confined aliens, incompetents, tions shall include, but need not be and minors. limited to, consideration of the following factors: (a) Service. If the respondent is con- (i) Seriousness of the crime(s) of fined, or if he is an incompetent, or a which convicted; minor under the age of 14, the order to (ii) Prior criminal history, especially show cause, and the warrant of arrest, the nature of the crimes and number of if issued, shall be served in the manner arrests; prescribed in § 242.1(c) upon the person (iii) Sentence(s) imposed and time ac- or persons named in § 103.5a(c) of this tually served; chapter. (iv) History of failures to appear for (b) Service custody; cost of mainte- court (defaults); nance. An alien confined because of (v) Probation history; physical or mental disability in an in- (vi) Evidence of rehabilitative effort stitution or hospital shall not be ac- or recidivism; cepted into physical custody by the (vii) Equities in the United States; Service until an order of deportation (viii) Availability of relief from de- has been entered and the Service is portation and the likelihood of its ready to deport the alien. When such being granted; and an alien is an inmate of a public or pri- (ix) Prior immigration violations and vate institution at the time of the history. (2) If, after consideration of all fac- commencement of the deportation pro- tors listed in paragraph (h)(1) of this ceedings, expenses for the maintenance section, it is determined that the alien of the alien shall not be incurred by is not a threat to public safety and is the Government until he is taken into likely to appear for all scheduled hear- physical custody by the Service. ings, he or she may be released from [22 FR 9796, Dec. 6, 1957, as amended at 37 FR custody under such conditions as the 11470, June 8, 1972; 43 FR 48620, Oct. 19, 1978] Attorney General may prescribe, in-

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§ 242.4 Fingerprints and photographs. of a private bill introduced in his/her behalf; or (vi) who is admissible to the Every alien 14 years of age or older United States as an immigrant and: (A) against whom proceedings are com- Who is an immediate relative of a U.S. menced under this part by service of an citizen, or (B) is otherwise exempt from order to show cause shall be the numerical limitation on immigrant fingerprinted and photographed. Such visa issuance, or (C) has a priority date fingerprints and photographs shall be for an immigrant visa not more than 60 made available to Federal, State, and days later than the date show in the local law enforcement agencies upon latest Visa Office Bulletin and has ap- request to the district director or chief plied for an immigrant visa at an patrol agent having jurisdiction over American Consulate which has accept- the alien’s record. Any such alien, re- ed jurisdiction over the case, or (D) gardless of his or her age, shall be pho- who is a third-preference alien with a tographed and/or fingerprinted if re- priority date earlier than August 9, quired by any immigration officer au- 1978, or (E) who is the beneficiary of an thorized to issue an order to show approved sixth-preference petition who cause as listed in § 242.1(a). satisfies Examinations without an- [59 FR 42415, Aug. 17, 1994] other petition that he/she can qualify for third preference and who cannot ob- § 242.5 Voluntary departure prior to tain a visa solely because a visa num- commencement of hearing. ber is unavailable, and who has a prior- (a)(1) Authorized officers. The authority date earlier than August 9, 1978; or ity contained in section 242(b) of the (vii) who has been granted asylum and act to permit aliens to depart volun- has not been granted parole status or a tarily from the United States may be stay of deportation; (viii) in whose case exercised by district directors, district the district director has determined officers who are in charge of investiga- there are compelling factors warrant- tions, officers in charge, chief patrol ing grant of voluntary departure; or agents, and service center directors, as- (ix) who is the child of a legalized alien sistant district directors for Examina- currently residing in the United tions, Director, Organized Crime Drug States, born during an authorized ab- Enforcement Task Force, or Assistant sence from the United States of the Director, Organized Crime Drug En- mother who is: (A) A legalized alien; or forcement Task Force, (New York, NY; (B) An alien currently residing in the Houston, TX; Los Angeles, CA; and United States under voluntary depar- Miami, FL). ture pursuant to the Family Unity (2) Authorization. Notwithstanding Program. any other provision of this section, an (3) Periods of time/employment. (i) Ex- alien convicted on or after November cept for paragraphs (a)(2) (v) through 18, 1988, of an aggravated felony as de- (ix) of this section, any grant of vol- fined in section 101(a)(43) of the Act, untary departure shall contain a time shall not be eligible for voluntary de- limitation of usually not more than 30 parture prior to commencement of days, and an extension of the original hearing. Voluntary departure may be voluntary departure time shall not be granted to any alien who is statutorily authorized except under meritorious eligible: (i) Who is a native of a foreign circumstances, as determined on a contiguous territory and not within case-by-case basis. Upon failure to de- the purview of class (vi) of this para- part, deportation proceedings will be graph; or (ii) whose application for ex- initiated. As an exception to the 30-day tension of stay as a nonimmigrant is voluntary departure period, an eligible being denied; or (iii) who has volun- alien under: tarily surrendered himself to the Serv- (A) Paragraph (a)(2)(v) of this section ice; or (iv) who presents a valid travel may be granted voluntary departure in document and confirmed reservation increments of 1 year conditioned upon for transportation out of the United the F–1 or J–1 alien maintaining a full States within 30 days; or (v) who is an course of study at an approved institu- F–1, F–2, J–1, or J–2 nonimmigrant and tion of learning, or upon abiding by the who has lost such status solely because terms and conditions of the exchange

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program within the limitations im- is ascertained that the application posed by 22 CFR 514.23; or should not have been granted, that (B) Paragraphs (a)(2)(vi) (A), (B), and grant may be revoked without notice (C) of this section may be granted vol- by any district director, district officer untary departure until the American in charge of investigations, officer in Consul issues an immigrant visa and, charge, chief patrol agent, Director, at the discretion of the district direc- Organized Crime Drug Enforcement tor, issuance may be in increments of Task Force, or Assistant Director, Or- 30 days, conditioned upon continuing ganized Crime Drug Enforcement Task availability of an immigrant visa as Force, (New York, NY; Houston, TX; shown in the latest Visa Office Bulletin Los Angeles, CA; and Miami, FL). and upon the alien’s diligent pursuit of [23 FR 9123, Nov. 26, 1958, as amended at 29 efforts to obtain the visa; or FR 13242, Sept. 24, 1964; 35 FR 16362, Oct. 20, (C) Paragraphs (a)(2)(vi) (D) and (E) 1970; 43 FR 29528, July 10, 1978; 45 FR 27917, of this section may be granted vol- Apr. 25, 1980; 46 FR 25598, May 8, 1981; 47 FR untary departure, conditioned upon the 49954, Nov. 4, 1982; 52 FR 2940, Jan. 29, 1987; 55 continued validity of the approved FR 12627, Apr. 5, 1990; 55 FR 24859, June 19, third- or sixth-preference petition, as 1990; 56 FR 18503, Apr. 23, 1991; 60 FR 66067, appropriate, and the alien’s retention Dec. 21, 1995] of the status established in the petition § 242.6 Family Unity Program. for an indefinite period until an immigrant visa is available; or (a) General. Except as otherwise spe- (D) Paragraphs (a)(2) (vii) and (viii) cifically provided in paragraph (b) of of this section may be granted vol- this section, the definitions contained untary departure in increments of in Title 8 of the Code of Federal Regu- time, not to exceed 1 year, as deter- lations shall apply to the administra- mined by the district director to be ap- tion of this section. propriate in the case; or (b) Definitions. As used in this sec- (E) Paragraph (a)(2)(ix) of this section: tion may be granted voluntary depar- Eligible immigrant means a qualified ture in increments of time, not to ex- immigrant who is the spouse or unmar- ceed 2 years. ried child of a legalized alien. (ii) An alien eligible for voluntary de- Legalized alien means an alien who: parture in paragraphs (a)(2) (v) through (i) Is a temporary or permanent resi- (viii) of this section may apply for em- dent under section 210 or 245A of the ployment authorization under the ap- Act; or propriate citation in § 274a.12 of this (ii) Is a permanent resident under chapter. section 202 of the Immigration Reform (b) Application. Any alien who be- and Control Act of 1986 (Cuban/Haitian lieves himself or herself to be eligible Adjustment). for voluntary departure under section (c) Eligibility—(1) General. An alien 242(b) of the Act may apply therefore who is not a lawful permanent resident at any office of the Service any time is eligible to apply for benefits under prior to the commencement of deporta- the Family Unity Program if he or she tion proceedings against him or her. establishes: The officers designated in paragraph (i) That he or she entered the United (a) of this section may deny or grant States before May 5, 1988 (in the case of the application and determine the con- a relationship to a legalized alien de- ditions under which the alien’s depar- scribed in subsection (b)(2)(B) or ture shall be effected. An appeal shall (b)(2)(C) of section 301 of IMMACT 90)), not lie from a denial of an application or as of December 1, 1988 (in the case of for voluntary departure under this sec- a relationship to a legalized alien de- tion, but the denial shall be without scribed in subsection (b)(2)(A) of sec- prejudice to the alien’s right to apply tion 301 of IMMACT 90), and has been for relief from deportation under any continuously residing in the United provision of law. States since that date; and (c) Revocation. If, subsequent to the (ii) That on May 5, 1988 (in the case of granting of an application for vol- a relationship to a legalized alien de- untary departure under this section, it scribed in subsection (b)(2)(B) or

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(b)(2)(C) of section 301 of IMMACT 90), gram) must be filed with the correct or as of December 1, 1988 (in the case of fee required in § 103.7(b)(1) of this chap- a relationship to a legalized alien deter and the required supporting docu- scribed in subsection (b)(2)(A) of sec- mentation. A separate application with tion 301 of IMMACT 90), he or she was appropriate fee and documentation the spouse of unmarried child of a le- must be filed for each person claiming galized alien, and that he or she has eligibility. been eligible continuously since that (2) Decision. The Service Center direc- time for family-sponsored second pref- tor has sole jurisdiction to adjudicate erence immigrant status under section an application for benefits under the 203(a)(2) of the Act based on the same Family Unity Program. The director relationship. will provide the applicant with specific (2) Legalization application pending as reasons for any decision to deny an ap- of May 5, 1988 or December 1, 1988. An plication. Denial of an application may alien whose legalization application not be appealed. An applicant who be- was filed on or before May 5, 1988 (in lieves that the grounds for denial have the case of a relationship to a legalized been overcome may submit another ap- alien described in subsection (b)(2)(B) plication with the appropriate fee and or (b)(2)(C) of section 301 of IMMACT documentation. 90), or as of December 1, 1988 (in the (3) Referral of denied cases for consider- case of a relationship to a legalized ation of issuance of Order to Show Cause. alien described in subsection (b)(2)(A) If an application is denied, the case of section 301 of IMMACT 90), but not will be referred to the district director approved until after that date will be with jurisdiction over the alien’s place treated as having been a legalized alien of residence for consideration of wheth- as of May 5, 1988 (in the case of a rela- er to issue an Order to Show Cause tionship to a legalized alien described (OSC). After an initial denial, an appli- in subsection (b)(2)(B) or (b)(2)(C) of cant’s case will not be referred for issu- section 301 of IMMACT 90), or as of De- ance of an OSC until 90 days from the cember 1, 1988 (in the case of a relation- date of the initial denial, to allow the ship to a legalized alien described in alien the opportunity to file a new subsection (b)(2)(A) of section 301 of Form I–817 application in order to at- IMMACT 90), for purposes of the Fam- tempt to overcome the basis of the de- ily Unity Program. nial. However, if the applicant is found (d) Ineligible aliens. The following cat- not to be eligible for benefits under egories of aliens are ineligible for bene- paragraph (d)(2) of this section, the fits under the Family Unity Program: Service reserves the right to issue an (1) An alien who is deportable under Order to Show Cause at any time after any paragraph in section 241(a) of the the initial denial. Act, except paragraphs (1)(A), (1)(B), (4) Voluntary departure under § 242.5 (1)(C), and (3)(A); provided that an alien and eligibility for employment under who is deportable under paragraph § 274a.12(c)(12). Children of legalized (1)(A) of such Act is also ineligible for aliens residing in the United States, benefits under the Family Unity Pro- who were born during an authorized ab- gram if deportability is based upon an sence from the United States of moth- exclusion ground described in section ers who are currently residing in the 212(a) (2) or (3) of the Act; United States under voluntary depar- (2) An alien who has been convicted ture pursuant to the Family Unity of a felony or three or more mis- Program may be granted voluntary de- demeanors in the United States; or parture under § 242.5(a)(2)(ix) for a pe- (3) An alien described in section riod of 2 years. 243(h)(2) of the Act. (5) Duration of voluntary departure (e) Filing—(1) General. An application under § 242.6. An alien whose applica- for voluntary departure under the tion for benefits under the Family Family Unity Program must be filed at Unity Program is approved will receive the Service Center having jurisdiction a 2-year period of voluntary departure. over the alien’s place of residence. A The 2-year period will begin on the Form I–817 (Application for Voluntary date the Services approves the applica- Departure under the Family Unity Pro- tion.

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(6) Employment authorization. An alien filed in behalf of him or her. No charg- granted benefits under the Family ing document will be issued for a pe- Unity Program is authorized to be em- riod of 90 days. ployed in the United States and may (9) Supporting documentation for exten- apply for an employment authorization sion application. Supporting docu- document on Form I–765 (Application mentation need not include docu- for Employment Authorization). The mentation provided with the previous application may be filed concurrently application(s). The extension applica- with Form I–817. The application must tion need only include changes to pre- be accompanied by the correct fee re- vious applications and evidence of con- quired by § 103.7(b)(1) of this chapter. tinuing eligibility since the date of the The validity period of the employment prior approval. authorization will coincide with the pe- (f) Eligibility for Federal financial as- riod of voluntary departure. sistance programs. An alien granted (7) Travel outside the United States. An Family Unity Program benefits based alien granted Family Unity Program on a relationship to a legalized alien as benefits who intends to travel outside defined in paragraph (b) of this section the United States temporarily must is ineligible for public welfare assist- apply for advance authorization using ance in the same manner and for the Form I–131 (Application for Travel Doc- same period as the legalized alien is in- ument). The authority to grant an ap- eligible for such assistance under sec- plication for advance authorization for tions 245A(h) or 210(f) of the Act, re- an alien granted Family Unity Pro- spectively. gram benefits rests solely with the dis- (g) Termination of Family Unity Pro- trict director. An alien who is granted gram benefits—(1) Grounds for termi- advance authorization and returns to nation. The Service may terminate the United States in accordance with benefits under the Family Unity Pro- such authorization, and who is found gram whenever the necessity for the not to be excludable under section termination comes to the attention of 212(a) (2) or (3) of the Act, shall be inspected and admitted in the same im- the Service. Such grounds will exist in migration status the alien had at the situations including, but not limited time of departure, and provided the re- to, those in which: mainder of the 2-year voluntary depar- (i) A determination is made that ture previously granted under the Family Unity Program benefits were Family Unity Program. acquired as the result of fraud or will- (8) Extension of voluntary departure. ful misrepresentation of a material An application for an extension of vol- fact; untary departure under the Family (ii) The beneficiary commits an act Unity Program must be filed by the or acts which render him or her inad- alien on Form I–817 along with the cor- missible as an immigrant or ineligible rect fee required in § 103.7(b)(1) of this for benefits under the Family Unity chapter and the required supporting Program; documentation. The submission of a (iii) The legalized alien upon whose copy of the previous approval notice status benefits under the Family Unity will assist in shortening the processing Program were based loses his or her le- time. An extension may be granted if galized status; the alien continues to be eligible for (iv) The beneficiary is the subject of benefits under the Family Unity Pro- a final order of exclusion or deporta- gram. However, an extension may not tion issued subsequent to the grant of be approved if the legalized alien is a benefits on any ground of deportability lawful permanent resident, and a peti- or excludability that would have ren- tion for family-sponsored immigrant dered the alien ineligible for benefits status has not been filed in behalf of under § 242.6(d)(1) of this chapter, re- the applicant. In such case the Service gardless of whether the facts giving will notify the alien of the reason for rise to such ground occurred before or the denial and afford him or her the op- after the benefits were granted; or portunity to file another Form I–817 (v) A qualifying relationship to a le- once the petition, Form I–130, has been galized alien no longer exists.

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(2) Notice procedure. Notice of intent (c) Motion for remand. After com- to terminate and of the grounds there- mencement of the hearing, any officer of shall be served pursuant to the pro- enumerated in paragraph (a) of this visions of § 103.5a of this chapter. The section may move for remand of the alien shall be given 30 days to respond matter to district jurisdiction on the to the notice and may submit to the ground that the foreign relations of the Service additional evidence in rebuttal. United States are involved and require Any final decision of termination shall further consideration. Remand of the also be served pursuant to the provi- matter shall be without prejudice to sions of § 103.5a of the chapter. Nothing the alien or the Service. in this section shall preclude the Serv- (d) Warrant of arrest. When an order ice from commencing exclusion or de- to show cause is cancelled or proceed- portation proceedings prior to termi- ings are terminated under this section nation of Family Unity Program bene- any outstanding warrant of arrest is fits. cancelled. (3) Effect of termination. Termination (e) Termination of deportation proceed- of benefits under the Family Unity ings by immigration judge. An immigra- Program, other than as a result of a tion judge may terminate deportation final order of deportation or exclusion, proceedings to permit the respondent shall render the alien amendable to ex- to proceed to a final hearing on a pend- clusion or deportation proceedings ing application or petition for natu- under sections 236 or 242 of the Act, as ralization when the respondent has es- appropriate. tablished prima facie eligibility for [60 FR 66067, Dec. 21, 1995] naturalization and the matter involves exceptionally appealing or humani- § 242.7 Cancellation proceedings. tarian factors; in every other case, the (a) Cancellation of an order to show deportation hearing shall be completed cause. Any officer authorized by as promptly as possible notwithstand- § 242.1(a) of this part to issue an order ing the pendency of an application for to show cause may cancel an order to naturalization during any state of the show cause prior to jurisdiction vesting proceedings. with the Immigration Judge pursuant [47 FR 49954, Nov. 4, 1982; 47 FR 51351, Nov. 15, to § 3.14 of this chapter provided the of- 1982, as amended at 52 FR 2940, Jan. 29, 1987; ficer is satisfied that: 52 FR 3099, Jan. 30, 1987; 52 FR 5616, Feb. 25, (1) The respondent is a national of 1987; 53 FR 30022, Aug. 10, 1988] the United States; (2) The respondent is not deportable § 242.7a Waiver of documents; return- under immigration laws; ing residents. (3) The respondent is deceased; Pursuant to the authority contained (4) The respondent is not in the Unit- in section 211(b) of the Act, an alien ed States; previously lawfully admitted to the (5) The respondent was placed under United States for permanent residence proceedings for failure to file a timely who, upon return from a temporary ab- petition as required by section 216(c) of sence was excludable because of failure the Act, but his or her failure to file a to have or to present a valid passport, timely petition was excused in accord- immigrant visa, reentry permit, border ance with section 216(d)(2)(B) of the crossing card, or other document re- Act; or quired at the time of entry, may be (6) The Order to Show Cause was im- granted a waiver of such requirement providently issued. in the discretion of the district direc- (b) Motion to dismiss. After com- tor: Provided, That such alien (a) was mencement of proceedings pursuant to not otherwise excludable at the time of § 3.14 of this chapter, any officer enu- entry, or (b) having been otherwise ex- merated in paragraph (a) of this sec- cludable at the time of entry is with tion may move for dismissal of the respect thereto qualified for an exemp- matter on the grounds set out under tion from deportability under section paragraph (a) of this section. Dismissal 241(a)(1)(H) of the Act, and (c) is not of the matter shall be without preju- otherwise subject to deportation. De- dice to the alien or the Service. nial of a waiver by the district director

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shall not be appealable but shall be § 242.9 Trial attorney. without prejudice to renewal of an ap- (a) Authority. When an additional im- plication and reconsideration in proceedings before the immigration judge. migration officer is assigned to a proceedings under this part to perform the [29 FR 6002, May 7, 1964, as amended at 56 FR duties of a trial attorney, he shall 38333, Aug. 13, 1991] present on behalf of the Government evidence material to the issues of de- § 242.8 Immigration judges. portability and any other issues which (a) Authority. In any proceeding con- may require disposition by the special ducted under this part the immigration inquiry officer. The trial attorney is judge shall have the authority to deter- authorized to appeal from a decision of mine deportability and to make deci- the special inquiry officer pursuant to sions, including orders of deportation, § 242.21 and to move for reopening or reas provided by section 242(b) and 242B consideration pursuant to § 242.22. of the Act; to reinstate orders of depor- (b) Assignment. The district director tation as provided by section 242(f) of shall direct the chief legal officer to as- the Act; to determine applications sign a general attorney to each case under sections sections 208, 212(k), 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245 and within the provisions of § 242.16(c) of 249 of the Act; to determine the coun- this part, and to each case in which an try to which an alien’s deportation will unrepresented respondent is incom- be directed in accordance with section petent or under 16 years of age, and is 243(a) of the Act; to order temporary not accompanied by a guardian, rel- withholding of deportation pursuant to ative or friend. A general attorney section 243(h) of the Act; and to take shall be assigned to every case in which any other action consistent with appli- the Commissioner approves the submis- cable law and regulations as may be sion of nonrecord information under appropriate. An immigration judge § 242.17(a) of this part. In his discretion, may certify his or her decision in any whenever he deems such assignment case to the Board of Immigration Ap- necessary or advantageous, the district peals when it involves an unusually director may direct the chief legal offi- complex or novel question of law or cer to assign a general attorney to any fact. Nothing contained in this part other case at any stage of the proceed- shall be construed to diminish the au- ing. thority conferred on immigration judges under section 103 of the Act. [27 FR 9646, Sept. 29, 1962, as amended at 32 (b) Withdrawal and substitution of spe- FR 9631, July 4, 1967; 46 FR 43956, Sept. 2, cial inquiry officers. The special inquiry 1981] officer assigned to conduct the hearing § 242.10 Representation by counsel. shall at any time withdraw if he deems himself disqualified. If a hearing has The respondent may be represented begun but no evidence has been ad- at the hearing by an attorney or other duced other than by the respondent’s representative qualified under part 292 pleading pursuant to § 242.16(b), or if a of this chapter. special inquiry officer becomes un- [22 FR 9797, Dec. 6, 1957] available to complete his duties within a reasonable time, or if at any time the § 242.11 Incompetent respondents. respondent consents to a substitution, another special inquiry officer may be When it is impracticable for the reassigned to complete the case. The new spondent to be present at the hearing special inquiry officer shall familiarize because of mental incompetency, the himself with the record in the case and guardian, near relative, or friend who shall state for the record that he has was served with a copy of the order to done so. show cause shall be permitted to appear on behalf of the respondent. If [22 FR 9797, Dec. 6, 1957, as amended at 47 FR 44237, Oct. 7, 1982; 56 FR 38333, Aug. 13, 1991; such a person cannot reasonably be 57 FR 11574, Apr. 6, 1992; 59 FR 26594, May 23, found or fails or refuses to appear, the 1994]

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custodian of the respondent shall be re- proceedings shall constitute the record quested to appear on behalf of the rein the case. The hearing shall be respondent. corded verbatim except for statements made off the record with the permis- [22 FR 9797, Dec. 6, 1957] sion of the special inquiry officer. In § 242.12 Interpreter. his discretion, the special inquiry officer may exclude from the record any Any person acting as interpreter in a arguments made in connection with hearing before an Immigration Judge motions, applications, requests, or ob- under this part shall be sworn to inter- jections, but in such event the person pret and translate accurately, unless affected may submit a brief. the interpreter is an employee of the United States Government, in which [26 FR 12112, Dec. 19, 1961] event no such oath shall be required. § 242.16 Hearing. [52 FR 2940, Jan. 29, 1987] (a) Opening. The Immigration Judge shall advise the respondent of his right § 242.13 Postponement and adjournment of hearing. to representation, at no expense to the Government, by counsel of his own After the commencement of the hear- choice authorized to practice in the ing, the Immigration Judge may grant proceedings and require him to state a reasonable adjournment either at his then and there whether he desires rep- or her own instance or, for good cause resentation; advise the respondent of shown, upon application by the re- the availability of free legal services spondent or the Service. programs qualified under part 292a of [52 FR 2940, Jan. 29, 1987] this chapter and organizations recognized pursuant to § 292.2 of this chapter, § 242.14 Evidence. located in the district where the depor- (a) Sufficiency. A determination of de- tation hearing is being held; ascertain portability shall not be valid unless it that the respondent has received a list is found by clear, unequivocal and con- of such programs, and a copy of Form vincing evidence that the facts alleged I—618, Written Notice of Appeal as grounds for deportation are true. Rights; advise the respondent that he (b) [Reserved] will have a reasonable opportunity to (c) Use of prior statements. The special examine and object to the evidence inquiry officer may receive in evidence against him, to present evidence in his any oral or written statement which is own behalf and to cross-examine wit- material and relevant to any issue in nesses presented by the Government; the case previously made by the replace the respondent under oath; read the factual allegations and the charges spondent or any other person during in the order to show cause to the re- any investigation, examination, hear- spondent and explain them in nontech- ing, or trial. nical language, and enter the order to (d) Testimony. Testimony of witnesses show cause as an exhibit in the record. appearing at the hearing shall be under Deportation hearings shall be open to oath or affirmation administered by the public, except that the Immigra- the special inquiry officer. tion Judge may, in his discretion and (e) Depositions. The Immigration for the purpose of protecting witnesses, Judge may order the taking of deposi- respondents, or the public interest, ditions pursuant to § 3.33 of this chapter. rect that the general public or particu- [22 FR 9797, Dec. 6, 1957, as amended at 32 FR lar individuals shall be excluded from 2883, Feb. 15, 1967; 52 FR 2940, Jan. 29, 1987] the hearing in any specific case. De- pending upon physical facilities, rea- § 242.15 Contents of record. sonable limitation may be placed upon The hearing before the special in- the number in attendance at any one quiry officer, including the testimony, time, with priority being given to the exhibits, applications and requests, the press over the general public. special inquiry officer’s decision, and (b) Pleading by respondent. The special all written orders, motions, appeals, inquiry officer shall require the re- briefs, and other papers filed in the spondent to plead to the order to show

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cause by stating whether he admits or advise the respondent if he is not rep- denies the factual allegations and his resented by counsel that he may be so deportability under the charges con- represented and also that he may have tained therein. If the respondent ad- a reasonable time within which to mits the factual allegations and admits meet the additional factual allegations his deportability under the charges and and charges. The respondent shall be the special inquiry officer is satisfied required to state then and there wheth- that no issues of law or fact remain, er he desires a continuance for either the special inquiry officer may deter- of these reasons. Thereafter, the provi- mine that deportability as charged has sions of paragraph (b) of this section been established by the admissions of shall apply to the additional factual al- the respondent. The special inquiry of- legations and lodged charges. ficer shall not accept an admission of [27 FR 9646, Sept. 29, 1962, as amended at 29 deportability from an unrepresented FR 13243, Sept. 24, 1964; 32 FR 9632, July 4, respondent who is incompetent or 1967; 44 FR 4654, Jan. 23, 1979; 52 FR 2940, Jan. under age 16 and is not accompanied by 29, 1987; 56 FR 8907, Mar. 4, 1991] a guardian, relative, or friend; nor from an officer of an institution in which a § 242.17 Ancillary matters, applica- respondent is an inmate or patient. tions. When, pursuant to this paragraph, the (a) Creation of the status of an alien special inquiry officer may not accept lawfully admitted for permanent resi- an admission of deportability, he shall dence. The respondent may apply to the direct a hearing on the issues. immigration judge for suspension of (c) Issues of deportability. When de- deportation under section 244(a) of the portability is not determined under the Act; for adjustment of status under provisions of paragraph (b) of this sec- section 245 of the Act, or under section tion, the special inquiry officer shall 1 of the Act of November 2, 1966, or request the assignment of a trial attor- under section 101 or 104 of the Act of ney, and shall receive evidence as to October 28, 1977; or for the creation of any unresolved issues, except that no a record of lawful admission for perma- further evidence need be received as to nent residence under section 249 of the any facts admitted during the pleading. Act. The application shall be subject to The respondent shall provide a court the requirements of parts 244, 245, and certified copy of a Judicial Rec- 249 of this chapter. The approval of any ommendation Against Deportation to application made to the immigration the special inquiry officer when such judge under section 245 of the Act by recommendation will be the basis of an alien spouse (as defined in section denying any charge(s) brought by the 216(g)(1) of the Act) or by an alien en- Service in the proceedings against the trepreneur (as defined in section respondent. No Judicial Recommenda- 216A(f)(1) of the Act), shall result in the tion Against Deportation is effective alien’s obtaining the status of lawful against a charge of deportability under permanent resident on a conditional section 241(a)(11) of the Act or if the basis in accordance with the provisions Judicial Recommendation Against De- of section 216 or 216A of the Act, which- portation was granted on or after No- ever is applicable. However, the Peti- vember 29, 1990. tion to Remove the Conditions on Resi- (d) Additional charges. The Service dence required by section 216(c) of the may at any time during a hearing Act or the Petition by Entrepreneur to lodge additional charges of deportabil- Remove Conditions required by section ity, including factual allegations, 216A(c) of the Act shall be made to the against the respondent. Copies of the director in accordance with part 216 of additional factual allegations and the chapter. In conjunction with any charges shall be submitted in writing application for creation of status of an for service on the respondent and entry alien lawfully admitted for permanent as an exhibit in the record. The Immi- residence made to an immigration gration Judge shall read the additional judge, if the respondent is inadmissible factual allegations and charges to the under any provision of section 212(a) of respondent and explain them to him or the Act and believes that he or she her. The special inquiry officer shall meets the eligibility requirements for

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a waiver of the ground of inadmissibil- the respondent declines to designate a ity, he or she may apply to the immi- country. gration judge for such waiver. The im- (2) If the alien expresses fear of perse- migration judge shall inform the re- cution or harm upon return to any of spondent of his or her apparent eligi- the countries to which the alien might bility to apply for any of the benefits be deported pursuant to paragraph enumerated in this paragraph and shall (c)(1) of this section, and the alien has afford the respondent an opportunity not previously filed an application for to make application therefor during asylum or withholding of deportation the hearing. In exercising discretionary that has been referred to the immigra- power when considering an application tion judge by an asylum officer in ac- under this paragraph, the immigration cordance with § 208.14(b) of this chap- judge may consider and base the deci- ter, the immigration judge shall: sion on information not contained in (i) Advise the alien that he may the record and not made available for apply for asylum in the United States inspection by the respondent, provided or withholding of deportation to those the Commissioner has determined that countries; and such information is relevant and is (ii) Make available the appropriate classified under Executive Order No. application forms. 12356 (47 FR 14874, April 6, 1982) as re- (3) An application for asylum or quiring protection from unauthorized withholding of deportation must be disclosure in the interest of national filed with the Immigration Court, pur- security. Whenever the immigration suant to § 208.4(c) of this chapter. Upon judge believes that he or she can do so receipt of an application that has not while safeguarding both the informa- been referred by an asylum officer, the tion and its source, the immigration Immigration Court shall forward a judge should inform the respondent of copy to the Department of State pursu- the general nature of the information ant to § 208.11 of this chapter and shall in order that the respondent may have calendar the case for a hearing. The an opportunity to offer opposing evi- reply, if any, of the Department of dence. A decision based in whole or in State, unless classified under E.O. 12356 part on such classified information (3 CFR, 1982 Comp., p. 166), shall be shall state that the information is ma- given to both the applicant and to the terial to the decision. trial attorney representing the govern- (b) Voluntary departure. The respond- ment. ent may apply to the special inquiry (4) Applications for asylum or with- officer for voluntary departure in lieu holding of deportation so filed will be of deportation pursuant to section decided by the immigration judge pur- 244(e) of the Act and part 244 of this suant to the requirements and stand- chapter. ards established in part 208 of this (c) Applications for asylum or withhold- chapter after an evidentiary hearing ing of deportation. (1) The immigration that is necessary to resolve factual is- judge shall notify the respondent that sues in dispute. An evidentiary hearing if he is finally ordered deported his de- extending beyond issues related to the portation will in the first instance be basis for a mandatory denial of the ap- directed pursuant to section 243(a) of plication pursuant to 8 CFR 208.14 or the Act to the country designated by 208.16 is not necessary once the immi- the respondent and shall afford him an gration judge has determined that such opportunity then and there to make a denial is required. such designation. The immigration (i) Evidentiary hearings on applica- judge shall then specify and state for tions for asylum or withholding of de- the record the country, or countries in portation will be open to the public un- the alternative, to which respondent’s less the applicant expressly requests deportation will be directed pursuant that it be closed. to section 243(a) of the Act if the coun- (ii) Nothing in this section is in- try of his designation will not accept tended to limit the authority of the him into its territory, or fails to fur- Immigration Judge properly to control nish timely notice of acceptance, or if the scope of any evidentiary hearing.

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(iii) During the deportation hearing, portation submitted to an asylum offi- the applicant shall be examined under cer pursuant to § 208.2 of this chapter oath on his application and may on or after January 4, 1995 as the basis present evidence and witnesses in his for issuance of an Order to Show Cause own behalf. The applicant has the bur- under § 242.1 or to establish alienage or den of establishing that he is a refugee deportability in a case referred to an as defined in section 101(a)(42) of the immigration judge under § 208.14(b) of Act pursuant to the standard set forth this chapter. The respondent shall have in § 208.13 of this chapter. the burden of establishing that he is el- (iv) The trial attorney for the gov- igible for any requested benefit or ernment may call witnesses and privilege and that it should be granted present evidence for the record, includ- in the exercise of discretion. The re- ing information classified under E.O. spondent shall not be required to pay a 12356 (3 CFR, 1982 Comp., p. 166), pro- fee on more than one application with- vided the immigration judge or the in paragraphs (a) and (c) of this sec- Board has determined that such infor- tion, provided that the minimum fee mation is relevant to the hearing. imposed when more than one applica- When the immigration judge receives tion is made shall be determined by the such classified information he shall in- cost of the application with the highest form the applicant. The agency that fee. When a motion to reopen or recon- provides the classified information to sider is made concurrently with an ap- the immigration judge may provide an plication for relief seeking one of the unclassified summary of the informa- immigration benefits set forth in para- tion for release to the applicant, when- graphs (a) and (c) of this section, only ever it determines it can do so consist- the fee set forth in § 103.7(b)(1) of this ently with safeguarding both the clas- chapter for the motion must accom- sified nature of the information and its pany the motion and application for re- source. The summary should be as de- lief. If such a motion is granted, the tailed as possible, in order that the ap- appropriate fee for the application for plicant may have an opportunity to relief, if any, set forth in 8 CFR offer opposing evidence. A decision 103.7(b)(1), must be paid within the based in whole or in part on such clas- time specified in order to complete the sified information shall state whether application. Nothing contained herein such information is material to the de- is intended to foreclose the respondent cision. from applying for any benefit or privi- (5) The decision of an immigration lege which he believes himself eligible judge to grant or deny asylum or with- to receive in proceedings under this holding of deportation shall be commu- part. nicated to the applicant and to the [26 FR 12112, Dec. 19, 1961, as amended at 34 trial attorney for the government. An FR 13921, Aug. 30, 1969; 39 FR 25642, July 12, adverse decision will state why asylum 1974; 39 FR 43055, Dec. 10, 1974; 43 FR 18644, or withholding of deportation was de- May 2, 1978; 45 FR 41393, June 19, 1980; 47 FR nied. 12133, Mar. 22, 1982; 47 FR 44237, Oct. 7, 1982; 47 FR 44990, Oct. 13, 1982; 53 FR 30022, Aug. 10, (d) Application for relief under sections 1988; 55 FR 30687, July 27, 1990; 56 FR 38333, 241(a)(1)(H) and 241(a)(1)(E)(iii). The re- Aug. 13, 1991; 59 FR 26593, 26594, May 23, 1994; spondent may apply to the immigra- 59 FR 62302, Dec. 5, 1994; 60 FR 34090, June 30, tion judge for relief from deportation 1995; 61 FR 46374, Sept. 3, 1996] under sections 241(a)(1)(H) and 241(a)(1)(E)(iii) of the Act. § 242.18 Decision of the immigration (e) General. An application under this judge. section shall be made only during the (a) Contents. The decision of the im- hearing and shall not be held to con- migration judge may be oral or writ- stitute a concession of alienage or deten. Except when deportability is deportability in any case in which the re- termined on the pleadings pursuant to spondent does not admit his alienage § 242.16(b), the decision of the immigra- or deportability. However, nothing in tion judge shall include a discussion of this section shall prohibit the INS from the evidence and findings as to deport- using information supplied in an appli- ability. The formal enumeration of cation for asylum or withholding of de- findings is not required. The decision

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shall also contain a discussion of the decision as provided in § 242.18(b), he evidence pertinent to any application shall serve a copy thereof upon the re- made by the respondent under § 242.17 spondent at the conclusion of the hear- and the reasons for granting or denying ing. Unless appeal from the decision is the request. The decision shall be con- waived, the respondent shall be fur- cluded with the order of the immigra- nished with Notice of Appeal, Form tion judge. EOIR–26, and advised of the provisions (b) Summary decision. Notwithstand- of § 242.21. ing the provisions of paragraph (a) of this section, in any case where deport- [26 FR 12212, Dec. 19, 1961, as amended at 27 ability is determined on the pleadings FR 9647, Sept. 29, 1962; 61 FR 18909, Apr. 29, pursuant to § 242.16(b) and the respond- 1996] ent does not make an application under § 242.17, or the respondent applies for § 242.20 Finality of order. voluntary departure only and the im- The decision of the Immigration migration judge grants the application, Judge shall become final in accordance the immigration judge may enter a with § 3.39 of this chapter. summary decision on Form I–38, if deportation is ordered, or on Form I–39, if [52 FR 2941, Jan. 29, 1987, as amended at 59 voluntary departure is granted with an FR 26595, May 23, 1994] alternate order of deportation. § 242.21 Appeals. (c) Order of the immigration judge. The order of the immigration judge shall (a) Pursuant to part 3 of this chapter, direct the respondent’s deportation, or an appeal shall lie from a decision of the termination of the proceedings, or an Immigration Judge to the Board, such other disposition of the case as except that no appeal shall lie from an may be appropriate. When deportation order of deportation entered in is ordered, the immigration judge shall absentia. The procedures regarding the specify the country, or countries in the filing of a Notice of Appeal (Form alternate, to which respondent’s depor- EOIR–26), fees, and briefs are set forth tation shall be directed. The immigra- in §§ 3.3, 3.31, and 3.38 of this chapter. tion judge is authorized to issue orders An appeal shall be filed within 30 cal- in the alternative or in combination as endar days after the mailing of a writ- he may deem necessary. ten decision, the stating of an oral de- [26 FR 12112, Dec. 19, 1961, as amended at 59 cision, or the service of a summary de- FR 62302, Dec. 5, 1994] cision. The filing date is defined as the date of receipt of the Notice of Appeal § 242.19 Notice of decision. by the Board of Immigration Appeals. (a) Written decision. A written deci- The reasons for the appeal shall be sion shall be served upon the respond- stated in the Notice of Appeal (Form ent and the trial attorney, together EOIR–26) in accordance with the provi- with the notice referred to in § 3.3 of sions of § 3.3(b) of this chapter. Failure this chapter. Service by mail is com- to do so may constitute a ground for plete upon mailing. dismissal of the appeal by the Board (b) Oral decision. An oral decision pursuant to § 3.1(d)(1–a) of this chapter. shall be stated by the special inquiry officer in the presence of the respond- (b) Prohibited appeals; legalization or ent and the trail attorney, if any, at applications. An alien respondent de- the conclusion of the hearing. Unless fined in § 245a.2(c) (6) or (7) of this chap- appeal from the decision is waived, the ter who fails to file an application for respondent shall be furnished with No- adjustment of status to that of a tem- tice of Appeal, Form EOIR–26, and ad- porary resident within the prescribed vised of the provisions of § 242.21. A period(s), and who is thereafter found typewritten copy of the oral decision to be deportable by decision of an im- shall be furnished at the request of the migration judge, shall not be permitted respondent or the trial attorney. to appeal the finding of deportability (c) Summary decision. When the special inquiry officer renders a summary

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based solely on refusal by the immigra- of any properly filed administrative ap- tion judge to entertain such an applica- peal. tion in deportation proceedings. [52 FR 26470, July 15, 1987, as amended at 61 [29 FR 7236, June 3, 1964, as amended at 52 FR FR 18909, Apr. 29, 1996; 61 FR 21065, May 9, 16194, May 1, 1987; 53 FR 10064, Mar. 29, 1988; 1996] 54 FR 29439, July 12, 1989; 61 FR 18909, Apr. 29, 1996] § 242.23 Proceedings under section 242(f) of the Act. § 242.22 Reopening or reconsideration. (a) Order to show cause. In the case of Motions to reopen or reconsider are an alien within the provisions of sec- subject to the requirements and limitation 242(f) of the Act, the order to show cause shall charge him with deportabil- tions set forth in § 3.23 of this chapter. ity under section 242(f) of the Act. The The immigration judge may upon his/ prior order of deportation and evidence her own motion, or upon motion of the of the execution thereof, properly iden- trial attorney or the respondent, re- tified, shall constitute prima facie open or reconsider any case in which cause for deportability under this sec- he/she had made a decision, unless ju- tion. risdiction in the case is vested in the (b) Applicable procedure. Except as Board of Immigration Appeals under otherwise provided in this section, pro- part 3 of this chapter. An order by the ceedings under section 242(f) of the Act immigration judge granting a motion shall be conducted in general accord- to reopen may be made on Form I–328. ance with the rules prescribed in this A motion to reopen will not be granted part. unless the immigration judge is satis- (c) Deportability. In determining the fied that evidence sought to be offered deportability of an alien alleged to be is material and was not available and within the purview of paragraph (a) of could not have been discovered or pre- this section, the issues shall be limited sented at the hearing; nor will any mo- solely to a determination of the iden- tion to reopen for the purpose of pro- tity of the respondent, i.e., whether the viding the respondent with an oppor- respondent is in fact an alien who was tunity to make an application under previously deported, or who departed § 242.17 be granted if respondent’s rights while an order of deportation was out- to make such application were fully ex- standing; whether the respondent was plained to him/her by the immigration previously deported as a member of judge and he/she was afforded an oppor- any of the classes described in paragraph (2), (3) or (4) of section 241(a) of tunity to do so at the hearing, unless the Act; and whether respondent has circumstances have arisen thereafter unlawfully reentered the United on the basis of which the request is States. being made. The filing of a motion (d) Order. If deportability as charged under this section with an immigration in the order to show cause is estab- judge shall not serve to stay the execu- lished, the Immigration Judge shall tion of an outstanding decision; execu- order that the respondent be deported tion shall proceed unless the immigra- under the previous order of deportation tion judge who has jurisdiction over in accordance with section 242(f) of the the motion specifically grants a stay of Act. deportation. The immigration judge (e) Trial attorney; additional charges. may stay deportation pending his/her When a trial attorney is assigned to a determination of the motion and also proceeding under this section and addi- pending the taking and disposition of tional charges are lodged against the an appeal from such determination. respondent, the provisions of para- The filing of a motion to reopen pursu- graphs (c) and (d) of this section shall ant to the provisions of § 3.23(b)(4)(iii) cease to apply. of this chapter shall stay the deporta- [26 FR 12282, Dec. 28, 1961, as amended at 27 tion of the alien pending the disposi- FR 9647, Sept. 29, 1962; 30 FR 2021, Feb. 13, tion of the motion and the adjudication 1965; 56 FR 38333, Aug. 13, 1991]

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§ 242.24 Detention and release of juve- venile’s well-being and to ensure the niles. juvenile’s presence at all future pro- (a) Juveniles. A juvenile is defined as ceedings before the INS or an immigra- an alien under the age of eighteen (18) tion judge. years. (c) Juvenile Coordinator. The case of a (b) Release. Juveniles for whom bond juvenile for whom detention is deter- has been posted, for whom parole has mined to be necessary should be re- been authorized, or who have been or- ferred to the Juvenile Coordinator, dered released on recognizance, shall whose responsibilities should include, be released pursuant to the following but not be limited to, finding suitable guidelines: placement of the juvenile in a facility (1) Juveniles shall be released, in designated for the occupancy of juve- order of preference, to: (i) A parent; (ii) niles. These may include juvenile fa- legal guardian; or (iii) adult relative cilities contracted by the INS, state or (brother, sister, aunt, uncle, grand- local juvenile facilities, or other appro- parent) who are not presently in INS priate agencies authorized to accom- detention, unless a determination is modate juveniles by the laws of the made that the detention of such juve- state or locality. nile is required to secure his timely ap- (d) Detention. In the case of a juvenile pearance before the Service or the im- for whom detention is determined to be migration court or to ensure the juve- necessary, for such interim period of nile’s safety or that of others. time as is required to locate suitable In cases where the parent, legal guard- placement for the juvenile, whether ian or adult relative resides at a loca- such placement is under paragraph (b) tion distant from where the juvenile is or (c) of this section, the juvenile may detained, he or she may secure release be temporarily held by INS authorities at an INS office located near the par- or placed in any INS detention facility ent, legal guardian, or adult relative. having separate accommodations for (2) If an individual specified in para- juveniles. graph (b)(1) of this section cannot be (e) Refusal of release. If a parent of a located to accept custody of a juvenile, juvenile detained by the INS can be lo- and the juvenile has identified a par- cated, and is otherwise suitable to re- ent, legal guardian, or adult relative in ceive custody of the juvenile, and the INS detention, simultaneous release of juvenile indicates a refusal to be re- the juvenile and the parent, legal guardian, or adult relative shall be leased to his/her parent, the parent(s) evaluated on a discretionary case-by- shall be notified of the juvenile’s re- case basis. fusal to be released to the parent(s), (3) In cases where the parent or legal and shall be afforded an opportunity to guardian is in INS detention or outside present their views to the district di- the United States, the juvenile may be rector, chief patrol agent or immigra- released to such person as designated tion judge before a custody determina- by the parent or legal guardian in a tion is made. sworn affidavit, executed before an im- (f) Notice to parent of application for migration officer or consular officer, as relief. If a juvenile seeks release from capable and willing to care for the ju- detention, voluntary departure, parole, venile’s well-being. Such person must or any form of relief from deportation, execute an agreement to care for the where it appears that the grant of such juvenile and to ensure the juvenile’s relief may effectively terminate some presence at all future proceedings be- interest inherent in the parent-child fore the Service or an immigration relationship and/or the juvenile’s judge. rights and interests are adverse with (4) In unusual and compelling cir- those of the parent, and the parent is cumstances and in the discretion of the presently residing in the United States, district director or chief patrol agent, the parent shall be given notice of the a juvenile may be released to an adult, juvenile’s application for relief, and other than those identified in para- shall be afforded an opportunity to graph (b)(1) of this section, who exe- present his or her views and assert his cutes an agreement to care for the ju- or her interest to the district director

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or immigration judge before a deter- (b) Preliminary consideration and No- mination is made as to the merits of tice of Intent to issue a Final Administra- the request for relief. tive Deportation Order; commencement of (g) Voluntary departure. Each juvenile proceedings—(1) Basis of Service charge. apprehended in the immediate vicinity An issuing Service officer shall cause of the border who resides permanently to be served upon an alien a Notice of in Mexico or Canada, shall be informed, Intent to issue a Final Administrative prior to presentation of the voluntary Deportation Order (Notice of Intent, departure form, that he or she may Form I–851), if the officer is satisfied make a telephone call to a parent, that there is sufficient evidence, based close relative, a friend, or to an organi- upon questioning of the alien by an im- zation found on the free legal services migration officer and upon any other list. Each other juvenile apprehended evidence obtained, to support a finding shall be provided access to a telephone that the individual: and must in fact communicate with ei- (i) Is an alien; ther a parent, adult relative, friend, or (ii) Has not been lawfully admitted with an organization found on the free for permanent residence; legal services list prior to presentation (iii) Has been convicted (as dem- of the voluntary departure form. If the onstrated by one or more of the sources juvenile, of his or her own volition, listed in § 3.41 of this chapter) of an ag- asks to contact a consular officer, and gravated felony and such conviction does in fact make such contact the re- has become final; quirements of this section are satisfied. (iv) Is deportable under section (h) Notice and Request for Disposition. 241(a)(2)(A)(iii) of the Act; and When a juvenile alien is apprehended, (v) Does not appear statutorily eligi- he or she must be given a Notice and ble for any relief from deportation Request for Disposition. If the juvenile under the Act. is under fourteen years of age or unable (2) Notice. (i) Deportation proceedings to understand the notice, the notice under section 242A(b) of the Act shall shall be read and explained to the juve- commence upon personal service of the nile in a language the juvenile under- Notice of Intent upon the alien, as pre- stands. In the event a juvenile who has scribed by §§ 103.5a(a)(2) and 103.5a(c)(2) requested a hearing pursuant to the of this chapter. The Notice of Intent Notice subsequently decides to accept shall set for the preliminary deter- voluntary departure, a new Notice and minations and inform the alien of the Request for Disposition shall be given Service’s intention to issue a Final Ad- to, and signed by the juvenile. ministrative Deportation Order (Final Administrative Deportation Order, [53 FR 17450, May 17, 1988] Form I–851A) without a hearing before an Immigration Judge. This Notice § 242.25 Proceedings under section shall constitute the charging docu- 242A(b) of the Act. ment. The Notice of Intent shall in- (a) Definitions. As used in this sec- clude allegations of fact and conclu- tion—Deciding Service officer means a sions of law. It shall advise that the district director, chief patrol agent, or alien: has the privilege of being rep- another immigration officer designated resented by counsel of the alien’s by a district director or chief patrol choosing, at no expense to the Govern- agent, who is not the same person as ment, as long as counsel is authorized the issuing Service officer. Issuing Serv- to practice in deportation proceedings; ice officer means any Service officer may inspect the evidence supporting listed in § 242.1(a) as authorized to issue the Notice of Intent; and may rebut the orders to show cause. Prima facie claim charges within ten (10) calendar days means a claim that, on its face and after service of such Notice (or thirteen consistent with the evidence in the (13) calendar days if service of the No- record of proceeding, demonstrates an tice was by mail). alien’s present statutory eligibility for (ii) The Notice of Intent also shall a specific form of relief from deporta- advise the alien that he or she may tion under the Immigration and Na- designate in writing, within ten (10) tionality Act (‘‘the Act’’). calendar days of service of the Notice

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of Intent (or thirteen (13) calendar days at the address provided in the Notice of if service is by mail), the country to Intent. which he or she chooses to be deported (2) Nature of rebuttal or request to rein accordance with section 243 of the view evidence. (i) If an alien chooses to Act, in the event that a Final Adminis- rebut the allegations contained in the trative Deportation Order is issued, Notice, the alien’s written response and that the Service will honor such must indicate which finding(s) are designation only to the extent per- being challenged and should be accom- mitted under the terms, limitations, panied by affidavit(s), documentary in- and conditions of section 243 of the formation, or other specific evidence Act. supporting the challenge. If the alien (iii) The Service shall provide the asserts that he or she is entitled to alien with a list of available free legal statutory relief from deportation, the services programs qualified under part alien also should include with the re- 292a of this chapter and organizations sponse a completed and signed applica- recognized pursuant to part 292 of this tion designed for the relief sought. chapter, located within the district or (ii) If an alien’s written response re- sector where the Notice of Intent is is- quests the opportunity to review the sued. Government’s evidence, the Service shall serve the alien with a copy of the (iv) The Service must either provide evidence in the record of proceeding the alien with a written translation of upon which the Service is relying to the Notice of Intent or explain the con- support the charge. The alien may, tents of the Notice of Intent to the within ten (10) calendar days following alien in the alien’s native language or service of the Government’s evidence in a language that the alien under- (thirteen (13) calendar days if service is stands. by mail), furnish a final response in ac- (c) Alien’s response—(1) Time for re- cordance with paragraph (c)(1) of this sponse. The alien will have ten (10) cal- section. If the alien’s final response is endar days from service of the Notice a rebuttal of the allegations, such a of Intent, or thirteen (13) calendar days final response should be accompanied if service is by mail, to file a response by affidavit(s), documentary informa- to the Notice. If the final date for filing tion, or other specific evidence sup- such a response falls on a Saturday, porting the challenge. If the alien as- Sunday, or legal holiday, the response serts that he or she is entitled to statu- shall be considered due on the next tory relief from deportation, the alien business day. In the response, the alien also should include with the final re- may: Designate his or her choice of sponse a completed and signed applica- country for deportation; submit a writ- tion designed for the relief sought. ten response rebutting the allegations (d) Determination by deciding Service supporting the charge and/or request- officer—(1) No response submitted or con- ing the opportunity to review the Gov- cession of deportability. If the deciding ernment’s evidence; and/or request in Service officer does not receive a time- writing an extension of time for rely response and the evidence in the sponse, stating the specific reasons record of processing establishes deport- why such an extension is necessary. Al- ability by clear, convincing, and un- ternatively, the alien may, in writing, equivocal evidence, or if the alien con- choose to accept immediate issuance of cedes deportability, then the deciding a Final Administrative Deportation Service officer shall issue and cause to Order. The deciding Service officer be served upon the alien a Final Ad- may extend the time for response for ministrative Deportation Order that good cause shown. A request for exten- states the reasons for the deportation sion of time for response will not auto- decision. The alien may knowingly and matically extend the period for the re- voluntarily waive in writing the 30-day sponse. The alien will be permitted to waiting period before execution of the file a response outside the prescribed final order of deportation provided in period only if the deciding Service offi- paragraph (f) of this section. cer permits it. The alien must send the (2) Response submitted—(i) Insufficient response to the deciding Service officer rebuttal; no prima facie claim or genuine

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issue of material fact: If the alien timely officer finds that the alien is not ame- submits a rebuttal to the allegations, nable to deportation under section but the deciding Service officer finds 242A(b) of the Act or has presented a that deportability is established by prima facie claim of statutory eligi- clear, convincing, and unequivocal evi- bility for a specific form of relief from dence in the record of proceeding, and deportation, the deciding Service offi- that the alien has not demonstrated a cer shall terminate the expedited pro- prima facie claim of eligibility for re- ceedings under section 242A(b) of the lief from deportation under the Act, Act, and shall, where appropriate, the deciding Service officer shall issue cause to be issued an order to show and cause to be served upon the alien a cause for the purpose of initiating an Final Administrative Deportation Immigration Judge proceeding under Order that states the reasons for the section 242(b) of the Act. deportation decision. (3) Termination of proceedings by decid- (ii) Additional evidence required. (A) If ing Service officer. Only the deciding the deciding Service officer finds that Service officer may terminate proceed- the record of proceeding, including the ings under section 242A(b) of the Act, alien’s timely rebuttal, raises a genu- in accordance with this section. ine issue of material fact regarding the (e) Proceedings commenced under sec- preliminary findings, the deciding tion 242(b) of the act. In any proceeding Service officer may either obtain addi- commenced under section 242(b) of the tional evidence from any source, in- Act, if it appears that the respondent cluding the alien, or cause to be issued alien is subject to deportation pursu- an order to show cause to initiate de- ant to section 242A(b) of the Act, the portation proceedings under section Immigration Judge may, upon the 242(b) of the Act. The deciding Service Service’s request, terminate the case officer also may obtain additional evi- and, upon such termination, the Serv- dence from any source, including the ice may commence administrative pro- alien, if the deciding Service officer ceedings under section 242A(b) of the deems that such additional evidence Act. However, in the absence of any may aid the officer in the rendering of such request, the Immigration Judge a decision. shall complete the pending proceeding (B) If the deciding Service officer commenced under section 242(b) of the considers additional evidence from a Act. source other than the alien, that evi- (f) Executing final deportation order of dence shall be made a part of the deciding Service officer—(1) Time of exe- record of proceeding, and shall be pro- cution. Upon the issuance of a Final vided to the alien. If the alien elects to Administrative Deportation Order, the submit a response to such additional Service shall issue a warrant of depor- evidence, such response must be filed tation in accordance with 8 CFR 243.2; with the Service within ten (10) cal- such warrant shall be executed no endar days of service of the additional sooner than 30 calendar days after the evidence (or thirteen (13) calendar days date the Final Administrative Deporta- if service is by mail). If the deciding tion Order is issued, unless the alien Service officer finds, after considering knowingly, voluntarily and in writing all additional evidence, that deport- waives the 30-day period. The 72-hour ability is established by clear, convinc- provisions of § 243.3(b) of this chapter ing, and unequivocal evidence in the shall not apply. record of proceeding, and that the alien (2) Country to which alien is to be de- does not have a prima facie claim of ported. The deciding Service officer eligibility for relief from deportation shall designate the country of deporta- under the Act, the deciding Service of- tion in the manner prescribed by sec- ficer shall issue and cause to be served tion 243(a) of the Act. upon the alien a Final Administrative (g) Arrest and detention. At the time Deportation Order that states the rea- of issuance of a Notice of Intent or at sons for the deportation decision. any time thereafter and up to the time (iii) Statutory eligibility for relief; con- the alien becomes the subject of a war- version to proceedings under section rant of deportation, the alien may be 242(b) of the Act. If the deciding Service arrested and taken into custody under

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the authority of a warrant of arrest is- immigrants in S classification must sued by an officer listed in § 242.2(c)(1) have executed Form I–854, Part B, cer- of this chapter. Pursuant to section tifying that they have knowingly 242(a)(2)(A) of the Act, the deciding waived their right to a deportation Service officer shall not release an hearing and right to contest, other alien who has not been lawfully admit- than on the basis of an application for ted. Pursuant to section 242(a)(2)(B) of withholding of deportation, any depor- the Act, the deciding Service officer tation action, including detention may release an alien who has been law- pending deportation, instituted before fully admitted if, in accordance with lawful permanent resident status is ob- § 242.2(h) of this chapter, the alien dem- tained. onstrates that he or she is not a threat (b) Determination of deportability. A to the community and is likely to ap- determination to deport an alien clas- pear at any scheduled hearings. The de- sified pursuant to section 101(a)(15)(S) cision of the deciding Service officer of the Act shall be made by the district concerning custody or bond shall not director having jurisdiction over the be administratively appealable during place where the alien is located. proceedings initiated under section (1) A determination to deport such an 242A(b) of the Act and this section. alien shall be based on one or more of (h) Record of proceeding. The Service the deportation grounds listed in sec- shall maintain a record of proceeding tion 241 of the Act based on conduct for judicial review of the Final Admin- committed after, or conduct or a condi- istrative Deportation Order sought by tion not disclosed to the Service prior any petition for review. The record of to, the alien’s classification as an S proceeding shall include, but not nec- nonimmigrant under section essarily be limited to: the charging 101(a)(15)(S) of the Act, or for a viola- document (Notice of Intent); the Final tion of, or failure to adhere to, the par- Administrative Deportation Order (in- ticular terms and conditions of status cluding any supplemental memoran- in S nonimmigrant classification. dum of decision); the alien’s response, (c) Deportation procedures. (1) A dis- if any; all evidence in support of the trict director who determines to deport charge; and any admissible evidence, an alien witness or informant in S non- briefs, or documents submitted by ei- immigrant classification shall notify ther party respecting deportability or the Commissioner, the Assistant Attor- relief from deportation. ney General, Criminal Division, and (i) Effective March 3, 1997, the Serv- the relevant LEA in writing to that ef- ice will cease issuance of both Form I– fect. The Assistant Attorney General, 851 and Form I–851A. The Service re- Criminal Division, shall concur in or tains the authority to execute at any object to that decision. Unless the As- time Form I–851A that is final before sistant Attorney General, Criminal Di- March 3, 1997. The Service will resume vision, objects within 7 days, he or she the issuance of Form I–851 and Form I– shall be deemed to have concurred in 851A after April 1, 1997, pursuant to the decision. In the event of an objec- regulations implementing section tion by the Assistant Attorney Gen- 238(b) of the Act, as amended by the Il- eral, Criminal Division, the matter will legal Immigration Reform and Respon- be expeditiously referred to the Deputy sibility Act of 1996. Attorney General for a final resolution. [60 FR 43961, Aug. 24, 1995, as amended at 61 In no circumstances shall the alien or FR 69020, Dec. 31, 1996] the relevant LEA have a right of ap- EFFECTIVE DATE NOTE: At 61 FR 69020, Dec. peal from any decision to deport. 31, 1996, § 242.25 was amended by adding a new (2) A district director, who has pro- paragraph (i), effective Mar. 3, 1997. vided notice as set forth in paragraph (c)(1) of this section and who has been § 242.26 Deportation of S–5, S–6, and S– advised by the Commissioner that the 7 nonimmigrant. Assistant Attorney General, Criminal (a) Condition of classification. As a Division, has not objected, shall issue a condition of classification and contin- warrant of deportation. The alien shall ued stay in classification pursuant to immediately be arrested and taken section 101(a)(15)(S) of the Act, non- into custody by the district director

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initiating the deportation. An alien upon waiver of appeal, or upon expira- classified under the provisions of section of the time allotted for an appeal tion 101(a)(15)(S) of the Act who is de- when no appeal is taken; or, if such an termined, pursuant to a warrant issued order is issued by the Board or ap- by a district director, to be deportable proved by the Board upon certification, from the United States shall be de- it shall be final as of the date of the ported from the United States to his or Board’s decision. her country of nationality or last residence. The LEA who requested the § 243.2 Warrant of deportation. alien’s presence in the United States A Form I–205, Warrant of deporta- shall ensure departure from the United tion, based upon the final administra- States and so inform the district direc- tive order of deportation in the alien’s tor in whose jurisdiction the alien has case shall be issued by a district direc- last resided. The district director, if tor. The district director shall exercise necessary, shall oversee the alien’s de- the authority contained in section 243 parture from the Untied States and, in of the Act to determine at whose ex- any event, shall notify the Commis- pense the alien shall be deported and sioner of the alien’s departure. whether his/her mental or physical (d) Withholding of deportation. An condition requires personal care and alien classified pursuant to section attention en route to his/her destina- 101(a)(15)(S) of the Act who applies for tion. withholding of deportation shall have 10 days from the date the warrant of [54 FR 39337, Sept. 26, 1989] deportation is served upon the alien to § 243.3 Expulsion. file an application for such relief with the district director initiating the de- (a) Execution of Order. Except in the portation order. The procedures con- exercise of discretion by the district di- tained in 8 CFR 208.2 and 208.16 shall rector, and for such reasons as are set forth in § 212.5(a) of this chapter, once apply to such an alien who applies for an order of deportation becomes final, withholding of deportation. an alien shall be taken into custody [60 FR 44268, Aug. 25, 1995] and the order shall be executed. For the purposes of this part, an order of PART 243—DEPORTATION OF deportation is final and subject to exe- ALIENS IN THE UNITED STATES cution upon the date when any of the following occurs: Sec. (1) A grant of voluntary departure ex- 243.1 Final order of deportation. pires; 243.2 Warrant of deportation. (2) An immigration judge enters an 243.3 Expulsion. order of deportation without granting 243.4 Stay of deportation. voluntary departure or other relief, 243.5 Self-deportation. and the alien respondent waives his or 243.6 Notice to transportation line. 243.7 Special care and attention for aliens. her right to appeal; 243.8 Imposition of sanctions. (3) The Board of Immigration Appeals enters an order of deportation on ap- AUTHORITY: 8 U.S.C. 1103, 1253. peal, without granting voluntary de- SOURCE: 26 FR 12113, Dec. 19, 1961, unless parture or other relief; or otherwise noted. (4) A federal district or appellate court affirms an administrative order § 243.1 Final order of deportation. of deportation in a petition for review Except as otherwise required by sec- or habeas corpus action. tion 242(c) of the Act for the specific (b) Service of decision. In the case of purposes of that section, an order of de- an order entered by any of the authori- portation, including an alternate order ties enumerated above, the order shall of deportation coupled with an order of be executed no sooner than 72 hours voluntary departure, made by the spe- after service of the decision, regardless cial inquiry officer in proceedings of whether the alien is in Service cus- under part 242 of this chapter shall be- tody, provided that such period may be come final upon dismissal of an appeal waived on the knowing and voluntary by the Board of Immigration Appeals, request of the alien. Nothing in this

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paragraph shall be construed, however, of deportation shall not be considered to preclude assumption of custody by to have been so deported. the Service at the time of issuance of [29 FR 6485, May 19, 1964] the final order. [51 FR 23042, June 25, 1986] § 243.6 Notice to transportation line. When a transportation line is respon- § 243.4 Stay of deportation. sible for the expenses of an alien’s de- Any request of an alien under a final portation, notification shall be made to administrative order of deportation for such line on Form I–284, when applica- a stay of deportation, except a request ble, and Form I–288. If special care and for withholding of deportation pursu- attention is required, notification to ant to section 243(h) of the Act, shall this effect shall be placed on Form I– be filed on Form I–246 with the district 288. director having jurisdiction over the place where the alien is at the time of § 243.7 Special care and attention for filing. The district director, in his dis- aliens. cretion, may grant a stay of deporta- When a transportation line is respon- tion for such time and under such con- sible for the expenses of an alien’s de- ditions as he may deem appropriate. portation, the alien shall be delivered Written notice of the disposition of the to the master, commanding officer, or alien’s request shall be served upon the officer in charge of the vessel or him and any notice of denial shall in- aircraft on which the alien will be de- clude specific reasons therefor; how- ported, who shall be given Forms I–287, ever, neither the making of the request I–287A, and I–287B. The reverse of Form nor the failure to receive notice of dis- I–287A shall be signed by the officer of position of the request shall relieve the the vessel or aircraft to whom the alien alien from strict compliance with any has been delivered and immediately re- outstanding notice to surrender for de- turned to the immigration officer portation. Denial by the district direc- effecting delivery. Form I–287B shall be tor of a request for a stay is not ap- retained by the receiving officer and pealable but such denial shall not pre- subsequently filled out by the agents clude the Board from granting a stay or persons therein designated and rein connection with a motion to reopen turned by mail to the district director or a motion to reconsider as provided named on the form. The transportation in part 3 of this chapter, nor such de- line shall at its own expense forward nial preclude the special inquiry offi- the alien from the foreign port of dis- cer, in his discretion, from granting a embarkation to the final destination stay in connection with, and pending specified on Form I–287. The special his determination of, a motion to re- care and attention shall be continued open or a motion to reconsider a case to such final destination, except when falling within his jurisdiction pursuant the foreign public officers decline to to § 242.22 of this chapter, and also allow such attendant to proceed and pending an appeal from such deter- themselves take charge of the alien, in which case this fact shall be recorded mination. by the transportation line on the re- [40 FR 50702, Oct. 31, 1975] verse of Form I–287B. If the transportation line fails, refuses, or neglects to § 243.5 Self-deportation. provide the necessary special care and A district director may permit an attention or comply with the direc- alien ordered deported to depart at his tions of Form I–287, the district direc- own expense to a destination of his own tor shall thereafter and without notice choice. Any alien who has departed employ suitable persons, at the expense from the United States while an order of the transportation line, and effect of deportation is outstanding shall be such deportation. considered to have been deported in pursuance of law, except that an alien § 243.8 Imposition of sanctions. who departed before the expiration of The provisions of section 243(g) of the the voluntary departure time granted Act have been applied to residents of in connection with an alternate order the Union of Soviet Socialist Republics

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(USSR), Czechoslovakia, and Cuba. November 18, 1988, for an aggravated These provisions do not apply to an felony as defined in section 101(a)(43) of alien who is residing in Estonia, Lat- the Act, shall not be eligible for vol- via, or Lithuania who is not a national, untary departure as prescribed in part citizen, or subject of the Union of So- 242 of this chapter and section 244 of viet Socialist Republics. These the Act. Pursuant to part 242 of this provisons also do not apply to an alien chapter and section 244 of the Act an who is residing in Cuba and can be clas- immigration judge may authorize the sified as an immediate relative as de- suspension of an alien’s deportation; fined in section 201(b) or a returning or, if the alien establishes that he/she resident as defined in section is willing and has the immediate means 101(a)(27)(A). The sanctions imposed on with which to depart promptly from residents of the Union of Soviet Social- the United States, an immigration ist Republics, Czechoslovakia pursuant judge may authorize the alien to de- to section 243(g) may be waived in an part voluntarily from the United individual case for the beneficiary of a States in lieu of deportation within petition accorded a status under sec- such time as may be specified by the tion 201(b) or section 203(a) of the Act. immigration judge when first authoriz- The sanctions upon the USSR, Czecho- ing voluntary departure, and under slovakia may be waived upon an indi- such conditions as the district director vidual request by the Department of shall direct. An application for suspen- State in behalf of a visa applicant. sion of deportation shall be made on Upon approval of a visa petition or Form EOIR–40. upon an individual request by the De- [46 FR 25598, May 8, 1981, as amended at 55 partment of State in behalf of a visa FR 24859, June 19, 1990; 60 FR 37328, July 20, applicant, the district director shall 1995] determine whether sanctions shall be waived. However, the regional commis- § 244.2 Extension of time to depart. sioner or the Deputy Commissioner, Authority to reinstate or extend the may direct that any case or class of time within which to depart volun- cases be referred to him or her for any tarily specified initially by an immi- such determination. The consular offi- gration judge or the Board is within cer shall be notified of any determina- the sole jurisdiction of the district dition made with respect to the waiver of rector, except that an immigration sanctions if a visa petition is approved. judge or the Board may reinstate vol- If the sanctions are not waived, the no- untary departure in a deportation pro- tice informing the petitoner that the ceeding that has been reopened for a petition has been approved shall also purpose other than solely making an notfiy him or her that the sanctions application for voluntary departure. A imposed by section 243(g) of the Act request by an alien for reinstatement have not been waived. or an extension of time within which to depart voluntarily shall be filed with [48 FR 39034, Aug. 29, 1983, as amended at 56 the district director having jurisdic- FR 48730, Sept. 26, 1991] tion over the alien’s place of residence. Written notice of the district director’s PART 244—SUSPENSION OF DEPOR- decision shall be served upon the alien TATION AND VOLUNTARY DE- and no appeal may be taken therefrom. PARTURE [52 FR 24982, July 2, 1987]

Sec. 244.1 Application. PART 245—ADJUSTMENT OF STATUS 244.2 Extension of time to depart. TO THAT OF PERSON ADMITTED

AUTHORITY: 8 U.S.C. 1103, 1252, 1254; 8 CFR FOR PERMANENT RESIDENCE part 2. Sec. § 244.1 Application. 245.1 Eligibility. 245.2 Application. Notwithstanding any other provision 245.3 Adjustment of status under section 13 of this chapter, an alien who is deport- of the Act of September 11, 1957, as able because of a conviction on or after amended.

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245.4 Documentary requirements. pacity on board a vessel or aircraft or 245.5 Medical examination. was destined to join a vessel or aircraft 245.6 Interview. in the United States to serve in any ca- 245.7 Adjustment of status of certain Soviet and Indochinese parolees under the For- pacity thereon; eign Operations Appropriations Act for (3) Any alien who was not admitted Fiscal Year 1990 (Pub. L. 101–167). or paroled following inspection by an 245.8 Adjustment of status as a special im- immigration officer; migrant under section 101(a)(27)(K) of the (4) Any alien who, on or after Janu- Act. ary 1, 1977, was employed in the United 245.9 Adjustment of Status of Certain Na- States without authorization prior to tionals of the People’s Republic of China filing an application for adjustment of under Public Law 102–404. 245.10 Adjustment of status upon payment status. This restriction shall not apply of additional sum under Public Law 103- to an alien who is: 317. (i) An immediate relative as defined 245.11 Adjustment of aliens in S non- in section 201(b) of the Act; immigrant classification. (ii) A special immigrant as defined in AUTHORITY: 8 U.S.C. 1101, 1103, 1182, 1255; 8 section 101(a)(27)(H) or (J) of the Act; CFR part 2. (iii) Eligible for the benefits of Public Law 101–238 (the Immigration Nursing § 245.1 Eligibility. Relief Act of 1989) and files an applica- (a) General. Any alien who is phys- tion for adjustment of status on or be- ically present in the United States, ex- fore October 17, 1991; or cept for an alien who is ineligible to (iv) Eligible for the benefits of Public apply for adjustment of status under Law 101–238 (the Immigration Nursing paragraph (b) or (c) of this section, Relief Act of 1989), and has not entered may apply for adjustment of status to into or continued in unauthorized em- that of a lawful permanent resident of ployment on or after November 29, 1990. the United States if the applicant is el- (5) Any alien who on or after Novem- igible to receive an immigrant visa and ber 6, 1986 is not in lawful immigration an immigrant visa is immediately status on the date of filing his or her available at the time of filing of the application for adjustment of status, application. A special immigrant de- except an applicant who is an imme- scribed under section 101(a)(27)(J) of diate relative as defined in section the Act shall be deemed, for the pur- 201(b) or a special immigrant as defined pose of applying the adjustment to sta- in section 101(a)(27) (H), (I), or (J). tus provisions of section 245(a) of the (6) Any alien who files an application Act, to have been paroled into the for adjustment of status on or after No- United States, regardless of the actual vember 6, 1986, who has failed (other method of entry into the United than through no fault of his or her own States. or for technical reasons) to maintain (b) Restricted aliens. The following continuously a lawful status since categories of aliens are ineligible to entry into the United States, except an apply for adjustment of status to that applicant who is an immediate relative of a lawful permanent resident alien as defined in section 201(b) of the Act under section 245 of the Act, unless the or a special immigrant as defined in alien establishes eligibility under the section 101(a)(27) (H), (I), or (J) of the provisions of section 245(i) of the Act Act; and § 245.10, is not included in the cat- (7) Any alien admitted as a visitor egories of aliens prohibited from apply- under the visa waiver provisions of ing for adjustment of status listed in § 212.1(e) of this chapter. § 245.1(c), is eligible to receive an immi- (8) Any alien admitted as a Visa grant visa, and has an immigrant visa Waiver Pilot Program visitor under the immediately available at the time of provisions of section 217 of the Act and filing the application for adjustment of part 217 of this chapter other than an status: immediate relative as defined in sec- (1) Any alien who entered the United tion 201(b) of the Act. States in transit without a visa; (c) Ineligible aliens. The following cat- (2) Any alien who, on arrival in the egories of aliens are ineligible to apply United States, was serving in any ca- for adjustment of status to that of a

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lawful permanent resident alien under (6) Any alien admitted to the United section 245 of the Act: States as a nonimmigrant fiance as de- (1) Any nonpreference alien who is fined in section 101(a)(15)(K) of the Act, seeking or engaging in gainful employ- unless the alien is applying for adjustment in the United States who is not ment of status based upon a marriage the beneficiary of a valid individual or which was contracted within 90 days of blanket labor certification issued by entry with the United States citizen the Secretary of Labor or who is not who filed a petition on behalf of the exempt from certification require- alien pursuant to § 214.2(k) of this chap- ments under § 212.8(b) of this chapter; ter. (2) Except for an alien who is apply- (7) A nonimmigrant classified pursuing for residence under the provisions ant to section 101(a)(15)(S) of the Act, of section 133 of the Immigration Act unless the nonimmigrant is applying of 1990, any alien who has or had the for adjustment of status pursuant to status of an exchange visitor under sec- the request of a law enforcement au- tion 101(a)(15)(J) of the Act and who is thority, the provisions of section subject to the foreign residence re- 101(a)(15)(S) of the Act, and 8 CFR quirement of section 212(e) of the Act, 245.11. unless the alien has complied with the (8) Any alien who seeks to adjust sta- foreign residence requirement or has tus based upon a marriage which oc- been granted a waiver of that require- curred on or after November 10, 1986, ment, under that section. An alien who and while the alien was in deportation has been granted a waiver under sec- or exclusion proceedings, or judicial tion 212(e)(iii) of the Act based on a re- proceedings relating thereto. quest by a State Department of Health (i) Commencement of proceedings. The (or its equivalent) under Pub. L. 103–416 period during which the alien is in de- shall be ineligible to apply for adjust- portation or exclusion proceedings, or ment of status under section 245 of the judicial proceedings relating thereto Act if the terms and conditions speci- commences: fied in section 214(k) of the Act and (A) With the issuance of the Order to § 212.7(c)(9) of this chapter have not Show Case and Notice of Hearing been met; (Form I–221) prior to June 20, 1991; (3) Any alien who has nonimmigrant (B) With the filing of the Order to status under paragraph (15)(A), (15)(E), Show Cause and Notice of Hearing or (15)(G) of section 101(a) of the Act, or (Form I–221) issued on or after June 20, has an occupational status which 1991 with the Immigration Court; or would, if the alien were seeking admis- (C) With the issuance of the Notice to sion to the United States, entitle the Applicant for Admission Detained for alien to nonimmigrant status under Hearing before Immigration Judge those paragraphs, unless the alien first (Form I–122). executes and submits the written waiv- (ii) Termination of Proceedings. The er required by section 247(b) of the Act period during which the alien is in de- and part 247 of this chapter; and portation or exclusion proceedings, or (4) Any alien who claims immediate judicial proceedings relating thereto relative status under section 201(b) or terminates: preference status under sections 203(a) (A) When the alien departs from the or 203(b) of the Act, unless the appli- United States while an order of depor- cant is the beneficiary of a valid tation is outstanding or before the ex- unexpired visa petition filed in accord- piration of the voluntary departure ance with part 204 of this chapter. time granted in connection with an al- (5) Any alien who is already an alien ternate order of deportation under 8 lawfully admitted to the United States CFR 243.5; for permanent residence on a condi- (B) When the alien departs from the tional basis pursuant to section 216 or United States pursuant to an order of 216A of the Act, regardless of any other exclusion; quota or non-quota immigrant visa (C) When the alien is found not to be classification for which the alien may excludable or deportable from the otherwise be eligible. United States;

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(D) When the Order to Show Cause is proved under the bona fide marriage canceled pursuant to 8 CFR 242.7(a); exemption to section 204(g) of the Act (E) When the proceedings are termi- will be considered primary evidence of nated by the immigration judge or the eligibility for the bona fide marriage Board of Immigration Appeals; or exemption provided in this part. The (F) When a petition for review or an applicant will not be required to sub- action for habeas corpus is granted by mit additional evidence to qualify for a Federal Court on judicial review. the bona fide marriage exemption pro- (iii) Exemptions. This prohibition vided in this part, unless the district shall no longer apply if: director determines that such addi- (A) The alien is found not to be ex- tional evidence is needed. In cases cludable or deportable from the United where the district director notifies the States; applicant that additional evidence is (B) The Order to Show Cause is can- required, the applicant must submit celed pursuant to 8 CFR 242.7(a); documentary evidence which clearly (C) Proceedings are terminated by and convincingly establishes that the the immigration judge or Board of Im- marriage was entered into in good faith migration Appeals; and not entered into for the purpose of (D) A petition for review or an action procuring the alien’s entry as an immi- for habeas corpus is granted by a Fed- grant. Such evidence may include: eral Court on judicial review; (A) Documentation showing joint (E) The alien has resided outside the ownership of property; United States for two or more years (B) Lease showing joint tenancy of a following the marriage; or common residence; (F) The alien establishes that the (C) Documentation showing commin- marriage is bona fide by providing gling of financial resources; clear and convincing evidence that the marriage was entered into in good faith (D) Birth certificates of children born and in accordance with the laws of the to the applicant and his or her spouse; place where the marriage took place, (E) Affidavits of third parties having was not entered into for the purpose of knowledge of the bona fides of the mar- procuring the alien’s entry as an immi- ital relationship, or grant, and no fee or other consider- (F) Other documentation establishing ation was given (other than to an at- that the marriage was not entered into torney for assistance in preparation of in order to evade the immigration laws a lawful petition) for the filing of a pe- of the United States. tition. (vi) Decision. An application for ad- (iv) Request for exemption. No applica- justment of status filed during the pro- tion or fee is required to request the hibited period shall be denied, unless exemption under section 245(e) of the the applicant establishes eligibility for Act. The request must be made in writ- an exemption from the general prohibi- ing and submitted with the Form I–485. tion. Application for Permanent Residence. (vii) Denials. The denial of an applica- The request must state the basis for re- tion for adjustment of status because questing consideration for the exemp- the marriage took place during the tion and must be supported by docu- prohibited period shall be without prej- mentary evidence establishing eligi- udice to the consideration of a new ap- bility for the exemption. plication or a motion to reopen a pre- (v) Evidence to establish eligibility for viously denied application, if deporta- the bona fide marriage exemption. Sec- tion or exclusion proceedings are ter- tion 204(g) of the Act provides that cer- minated while the alien is in the Unit- tain visa petitions based upon mar- ed States. The denial shall also be riages entered into during deportation, without prejudice to the consideration exclusion or related judicial proceed- of a new application or motion to re- ings may be approved only if the peti- open the adjustment of status applica- tioner provides clear and convincing tion, if the applicant presents clear and evidence that the marriage is bona convincing evidence establishing eligi- fide. Evidence that a visa petition bility for the bona fide marriage ex- based upon the same marriage was ap- emption contained in this part.

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(viii) Appeals. An application for ad- continuation of status to the Service); justment of status to lawful permanent or resident which is denied by the district (ii) A technical violation resulting director solely because the applicant from inaction of the Service (as for ex- failed to establish eligibility for the ample, where an applicant establishes bona fide marriage exemption con- that he or she properly filed a timely tained in this part may be appealed to request to maintain status and the the Associate Commissioner, Examina- Service has not yet acted on that re- tions, in accordance with 8 CFR part quest). An individual whose refugee or 103. The appeal to the Associate Com- asylum status has expired through pas- missioner, Examinations, shall be the sage of time, but whose status has not single level of appellate review estab- been revoked, will be considered to lished by statute. have gone out of status for a technical (d) Definitions—(1) Lawful immigration reason. status. For purposes of section 245(c)(2) (iii) A technical violation caused by of the Act, the term ‘‘lawful immigra- the physical inability of the applicant tion status’’ will only describe the im- to request an extension of non- migration status of an individual who immigrant stay from the Service ei- is: ther in person or by mail (as, for exam- (i) In lawful permanent resident sta- ple, an individual who is hospitalized tus; with an illness at the time non- (ii) An alien admitted to the United immigrant stay expires). The expla- States in nonimmigrant status as de- nation of such a technical violation fined in section 101(a)(15) of the Act, shall be accompanied by a letter ex- whose initial period of admission has plaining the circumstances from the not expired or whose nonimmigrant hospital or attending physician. status has been extended in accordance (iv) A technical violation resulting with part 214 of this chapter; from the Service’s application of the (iii) In refugee status under section maximum five/six year period of stay 207 of the Act, such status not having for certain H–1 nurses only if the appli- been revoked; cant was subsequently reinstated to H– (iv) In asylee status under section 208 1 status in accordance with the terms of the Act, such status not having been of Public Law 101–656 (Immigration revoked; Amendments of 1988). (v) In parole status which has not ex- (3) Effect of departure. The departure pired, been revoked or terminated; or and subsequent reentry of an individ- (vi) Eligible for the benefits of Public ual who was employed without author- Law 101–238 (the Immigration Nursing ization in the United States after Jan- Relief Act of 1989) and files an applica- uary 1, 1977 does not erase the bar to tion for adjustment of status on or be- adjustment of status in section 245(c)(2) fore October 17, 1991. of the Act. Similarly, the departure (2) No fault of the applicant or for tech- and subsequent reentry of an individ- nical reasons. The parenthetical phrase ual who has not maintained a lawful other than through no fault of his or her immigration status on any previous own or for technical reasons shall be lim- entry into the United States does not ited to: erase the bar to adjustment of status (i) Inaction of another individual or in section 245(c)(2) of the Act for any organization designated by regulation application filed on or after November to act on behalf of an individual and 6, 1986. over whose actions the individual has (e) Special categories—(1) Alien medical no control, if the inaction is acknowl- graduates. Any alien who is a medical edged by that individual or organiza- graduate qualified for special immi- tion (as, for example, where a des- grant classification under section ignated school official certified under 101(a)(27)(H) of the Act and is the bene- § 214.2(f) of this chapter or an exchange ficiary of an approved petition as re- propram sponsor under § 214.2(j) of this quired under section 204(a)(1)(E)(i) of chapter did not provide required notifi- the Act is eligible for adjustment of cation to the Service of continuation of status. An accompanying spouse and status, or did not forward a request for children also may apply for adjustment

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of status under this section. Tem- plication for adjustment of status is porary absences from the United States approved no later than October 1, 1993, for 30 days or less, during which the ap- or plicant was practicing or studying (2) A valid, unexpired visa petition medicine, do not interrupt the continu- filed on or after October 1, 1991, which ous presence requirement. Temporary has been approved to grant the appli- absences authorized under the Serv- cant preference, status under section ice’s advance parole procedures will 203(b) (1), (2), or (3) of this Act (as in ef- not be considered interruptive of con- fect on and after October 1, 1991) be- tinuous presence when the alien applies cause of his or her occupation as a reg- for adjustment of status. istered nurse, and (2) Adjustment of certain nurses who (E) The applicant properly files an were in H–1 nonimmigrant status on Sep- application for adjustment of status tember 1, 1989 (Pub. L. 101–238)—(i) Eligi- under the provisions of section 245 of bility. An alien is eligible to apply for the Act. adjustment of status without regard to (ii) Application period. To benefit the numerical limitations of sections from the provisions of Public Law 101– 201 and 202 of the Act if: 238, an alien must properly file an ap- (A) The applicant was admitted to plication for adjustments of status the United States in, or had been under section 245 of the Act on or be- granted a change of status to, non- fore March 20, 1995. immigrant status under section (iii) Application. An applicant for the 101(a)(15)(H)(i) of the Act on or before benefits of Public Law 101–238 must file September 1, 1989, to perform services an application for adjustment of status as a registered nurse (regardless of the on Form I–485, accompanied by the fee date upon which the applicant’s au- and supporting documents described in thorization to remain in the United § 245.2 of this part. Beneficiaries of Pub- States expired or will expire), and the lic Law 101–238 must also submit: applicant had not thereafter been (A) Evidence that the applicant is the granted a change to status to any other beneficiary of: nonimmigrant classification prior to (1) A valid, unexpired visa petition September 1, 1989, filed prior to October 1, 1991, which has (B) The applicant has been employed been approved to grant the applicant in the United States as a registered preference status under section 203(a) nurse for an aggregate of three years (3) or (6) of the Act (as in effect prior to prior to the date of application for ad- October 1, 1991) and is deemed by oper- justment of status, ation of the automatic conversion pro- (C) The applicant’s continued em- visions of section 4 of Public Law 101– ployment as a registered nurse meets 110 to be effective to grant the appli- the standards established for certifi- cant preference status under section cation described in section 203(b) (2) or (3) of the Act (as in effect 212(a)(5)(A)(i) of the Act, on and after October 1, 1991) because of (D) The applicant is the beneficiary his or her occupation as a registered of: nurse, provided the application for ad- (1) A valid, unexpired visa petition justment of status is approved no later filed prior to October 1, 1991, which has than October 1, 1993, or been approved to grant the applicant (2) A valid, unexpired visa petition preference status under section 202(a) filed on or after October 1, 1991, which (3) or (6) of the Act (as in effect prior to has been approved to grant the appli- October 1, 1991), and is deemed by oper- cant preference status under section ation of the automatic conversion pro- 203(b) (1), (2), or (3) of the Act (as in ef- visions of section 4 of Public Law 102– fect on and after October 1, 1991) be- 110 (the Armed Forces Immigration Ad- cause of his or her occupation as a reg- justment Act of 1991), to be effective to istered nurse, and grant the applicant preference status (B) A request, made on Form ETA 750 under section 203(b) (2) or (3) of the Act submitted in duplicate, for a deter- (as in effect on and after October 1, mination by the district director that 1991) because of his or here occupation the alien is qualified for and will en- as a registered nurse, provided the ap- gage in the occupation of registered

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nurse, as currently listed on Schedule maintained lawful nonimmigrant sta- A (20 CFR part 656), tus. An alien who files for adjustment (C) Evidence showing that the appli- after this date will be subject to the cant has been employed in the United statutory bar of section 245(c)(2) of the States as a registered nurse for an ag- Act and will be ineligible to apply for gregate of three years prior to the date adjustment of status if he or she has the application for adjustment of sta- failed to continuously maintain lawful tus is filed, in the form of: nonimmigrant status (other than (1) Letters from employers stating through no fault of his or her own or the beginning and ending dates of em- for technical reasons); if he or she was ployment as a registered nurse, or not in lawful nonimmigrant status at (2) Other evidence of employment as the time the application was filed; or if a registered nurse, such as pay receipts he or she was employed without au- supported by affidavits of co-workers, thorization on or after November 29, which is accompanied by evidence that 1990. Unauthorized employment which the nurse has made reasonable efforts has been waived as a basis for ineli- to obtain employment letter(s), but has gibility for adjustment of status may been unable to do so because the cur- not be used as the basis of a determina- rent or former employer refuses to tion that the applicant is ineligible for issue the letter or has gone out of busi- adjustment of status due to failure to ness, continuously maintain lawful non- (D) Evidence that the applicant was immigrant status. licensed, either temporarily or perma- (C) Motions to reopen. Public Law 101– nently, as a registered nurse during all 649 (the Immigration Act of 1990), periods of qualifying employment, and which became law on November 29, (E) Evidence which establishes that 1990, retroactively amended Public Law the applicant was in the United States 101–238 (the Immigration Nursing Re- in H–1 nonimmigrant status for the lief Act of 1989). An alien whose appli- purpose of performing services as a reg- cation for adjustment of status under istered nurse on September 1, 1989. the provisions of Public Law 101–238 (iv) Effect of section 245(c)(2). An ap- was denied by the district director be- plicant for the benefits of the adjust- fore November 29, 1990, because of un- ment of status provisions of Public authorized employment, failure to con- Law 101–238 must establish eligibility tinuously maintain a lawful non- for adjustment of status under all pro- immigrant status, or not being in law- visions of section 245 unless those pro- ful immigration status at the time of visions have specifically been waived. filing, may file a motion to reopen the (A) Application for adjustment of status adjustment application. The motion to filed on or before October 17, 1991. An ap- reopen must be made in accordance plicant who qualifies for the benefits of with the provisions of 8 CFR 103.5. The Public Law 101–238, who properly files district director will reopen the appli- an application for adjustment of status cation for adjustment of status and on or before October 17, 1991, may be enter a new decision based upon the granted adjustment of status even provisions of Public Law 101–238, as though the alien has engaged or is en- amended by Public Law 101–649. Any gaging in unauthorized employment. other alien whose application for ad- For purposes of adjustment of status, justment of status was denied may file the applicant will be considered to a motion to reopen or reconsider in ac- have continuously maintained a lawful cordance with normal statutory and nonimmigrant status throughout his or regulatory provisions. her stay in the United States as a non- (v) Description of qualifying employ- immigrant and to be in lawful non- ment. Qualifying employment as a reg- immigrant status at the time the ap- istered nurse may have taken place at plication is filed. any time before the alien files the ap- (B) Application for adjustment of status plication for adjustment of status. It filed after October 17, 1991. An alien who may have occurred before, on, or after files an application for adjustment of the enactment of Public Law 101–238. status after October 17, 1991, will not All qualifying employment must have automatically be considered as having occurred in the United States. The

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qualifying employment as a registered date and preference category of the nurse may have occurred while the principal alien. The spouse or child alien was in any immigration status, may use the priority date and category provided that the alien had been admit- when it becomes current, in accordance ted in or changed to H–1 status for the with existing limitations outlined in purpose of performing services as a reg- sections 201 and 202 of the Act. The pri- istered nurse on or before September 1, ority date is not considered imme- 1989, and had not thereafter changed diately available for these family mem- from H–1 status to any other status be- bers under Public Law 101–238. fore September 1, 1989. The employ- (2) Relationship entered into after ad- ment need not have been continuous, justment of status is approved. An alien provided the applicant can establish who acquires lawful permanent resi- that he or she engaged in qualifying dence under the provisions of Public employment for a total of three or Law 101–238 may file a petition under more years. Qualifying employment section 204 of the Act for an alien may include periods when the appli- spouse, unmarried son or unmarried cant possessed a provisional, tem- daughter in accordance with existing porary, interim, or other permit or li- laws and regulations. The priority date cense authorizing the applicant to per- is not considered immediately avail- form services as a registered nurse; able for these family members under provided the license or permit was is- Public Law 101–238. sued or recognized by the State Board (3) Special immigrant juveniles. Any of Nursing of the state in which the alien qualified for special immigrant employment was performed. Qualifying classification under section employment may not include periods when the applicant performed duties as 101(a)(27)(J) of the Act shall be deemed, a registered nurse in violation of any for the purpose of section 245(a) of the state law regulating the employment Act, to have been paroled into the of registered nurses in that state. United States, regardless of the alien’s (vi) Effect of enactment on spouse or actual method of entry into the United child—(A) Spouse or child accompanying States. Neither the provisions of sec- principal alien. The accompanying tion 245(c)(2) nor the exclusion provi- spouse or child of an applicant for ad- sions of sections 212(a)(4), (5)(A), or justment of status who benefits from (7)(A) of the Act shall apply to a quali- Public Law 101–238, may also apply for fied special immigrant under section adjustment of status. All benefits and 101(a)(27)(J) of the Act. The exclusion limitations of this section, including provisions of sections 212(a)(2)(A), those resulting from the implementa- (2)(B), (2)(C) (except for so much of tion of the adjustment of status provi- such paragraph as related to a single sions of section 162(f) of Public Law offense of simple possession of 30 grams 101–649, apply equally to the principal or less of marijuana), (3)(A), (3)(B), applicant and his or her accompanying (3)(C), or (3)(E) of the Act may not be spouse or child. waived. Any other exclusion provision (B) Spouse or child residing outside the may be waived on an individual basis United States or ineligible for adjustment for humanitarian purposes, family of status. A spouse or child who is ineli- unity, or when it is otherwise in the gible to apply for adjustment of status public interest; however, the relation- as an accompanying spouse or child is ship between the alien and the alien’s not immediately eligible for issuance natural parents or prior adoptive par- of an immigrant visa under the provi- ents shall not be considered a factor in sions of Public Law 101–238. However, a discretionary waiver determination. the spouse or child may be eligible for (f) Concurrent applications to overcome visa issuance under other provisions of exclusionary grounds. Except as pro- the Act. vided in parts 235 and 249 of this chap- (1) Existing relationship. A spouse or ter, an application under this part child acquired by the principal alien shall be the sole method of requesting prior to the approval of the principal’s the exercise of discretion under section adjustment of status application may 212 (g), (h), (i), and (k) of the Act, as be accorded the derivative priority they relate to the excludability of an

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alien in the United States. Any appli- or daughter (as defined in section cant for adjustment under this part 216(g)(2) of the Act), an alien entre- may also apply for the benefits of sec- preneur (as defined in section 216A(f)(1) tion 212(c) of the Act, for permission to of the Act), or an alien spouse or child reapply after deportation or removal (as defined in section 216A(f)(2) of the under section 212(a)(17) of the Act, and Act) is granted adjustment of status to for the benefits of section that of lawful permanent residence, the 212(a)(28)(I)(ii) of the Act. No fee is re- alien shall be considered to have ob- quired for filing an application to over- tained such status on a conditional come the exclusionary grounds of the basis subject to the provisions of sec- Act if filed concurrently with an appli- tion 216 or 216A of the Act, as appro- cation for adjustment of status under priate. the provisions of the Act of October 28, (Title I of Pub. L. 95–145 enacted Oct. 28, 1977 1977, and of this part. (91 Stat. 1223), sec. 103 of the Immigration (g) Availability of immigrant visas and Nationality Act (8 U.S.C. 1103). Interpret under section 245 and priority dates—(1) or apply secs. 101, 212, 242 and 245 (8 U.S.C. Availability of immigrant visas under sec- 1101, 1182, 1252 and 1255)) tion 245. An alien is ineligible for the [30 FR 14778, Nov. 30, 1965] benefits of section 245 of the Act unless EDITORIAL NOTE: For FEDERAL REGISTER cian immigrant visa is immediately tations affecting § 245.1, see the List of Sec- available to him or her at the time the tions Affected in the Finding Aids section of application is filed. If the applicant is this volume. a preference alien, the current Depart- ment of State Bureau of Consular Af- § 245.2 Application. fairs Visa Bulletin will be consulted to (a) General—(1) Jurisdiction. An alien determine whether an immigrant visa who believes he meets the eligibility is immediately available. An immi- requirements of section 245 of the Act grant visa is considered available for or section 1 of the Act of November 2, accepting and processing the applica- 1966, and § 245.1 of this chapter shall tion Form I–485 if the preference cat- apply to the director having jurisdic- egory applicant has a priority date on tion over his place of residence unless the waiting list which is earlier than otherwise instructed in 8 CFR part 245. the date shown in the Bulletin (or the After an alien has been served with an Bulletin shows that numbers for visa order to show cause or warrant of ar- applicants in his or her category are rest, his application for adjustment of current), and (if the applicant is seek- status under section 245 of the Act or ing status pursuant to section 203(b) of section 1 of the Act of November 2, 1966 the Act) the applicant presents evi- shall be made and considered only in dence that the appropriate petition proceedings under part 242 of this chap- filed on his or her behalf has been ap- ter. An adjustment application by an proved. An immigrant visa is also con- alien paroled under section 212(d)(5) of sidered immediately available if the the Act, which has been denied by the applicant establishes eligibility for the director, may be renewed in exclusion benefits of Public Law 101–238. Informa- proceedings under section 236 of the tion concerning the immediate avail- Act only under the following two con- ability of an immigrant visa may be ditions: First, the denied application obtained at any Service office. must have been properly filed subse- (2) Priority dates. The priority date of quent to the applicant’s earlier inspec- an applicant who is seeking the allot- tion and admission to the United ment of an immigrant visa number States; second, the applicant’s later ab- under one of the preference classes sence from and return to the United specified in section 203(a) or 203(b) of States must have been under the terms the Act by virtue of a valid visa peti- of an advance parole authorization on tion approved in his or her behalf shall Form I–512 granted to permit the appli- be fixed by the date on which such ap- cant’s absence and return to pursue the proved petition was filed. previously filed adjustment applica- (h) Conditional basis of status. When- tion. ever an alien spouse (as defined in sec- (2) Proper filing of application—(i) tion 216(g)(1) of the Act), an alien son Under section 245. Before an application

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for adjustment of status under section must file Form I–485, with the required 245 of the Act may be considered prop- fee. The alien must also file Supple- erly filed, a visa must be immediately ment A to Form I–485, with any re- available. If a visa would be imme- quired additional sum. diately available upon approval of a (iv) Under the Act of November 2, 1966. visa petition, the application will not An application for adjustment of status be considered properly filed unless such is made on Form I–485A. The applica- petition has first been approved. If an tion must be accompanied by Form I– immediate relative petition filed for 643, Health and Human Services Statis- classification under section tical Data Sheet. The application must 201(b)(2)(A)(i) of the Act or a preference include a clearance from the local po- petition filed for classification under lice jurisdiction for any area in the section 203(a) of the Act is submitted United States when the applicant has simultaneously with the adjustment lived for six months or more since his application, the adjustment applica- or her 14th birthday. tion shall be retained for processing (4) Effect of departure—(i) General. The only if approval of the visa petition effect of a departure from the United would make a visa immediately avail- States is dependent upon the law under able at the time of filing the adjust- which the applicant is applying for ad- ment application. If the visa petition is justment. subsequently approved, the date of fil- (ii) Under section 245. The departure ing the adjustment application shall be from the United States of an applicant deemed to be the date on which the ac- who is under deportation proceedings companying petition was filed. shall be deemed an abandonment of the (ii) Under the Act of November 2, 1966. application constituting grounds for An application for the benefits of sec- termination of the deportation pro- tion 1 of the Act of November 2, 1966 is ceeding by reason of the departure. The not properly filed unless the applicant departure of an applicant who is not was inspected and admitted or paroled under deportation proceedings shall be into the United States subsequent to deemed an abandonment of his or her January 1, 1959. An applicant is ineli- application constituting grounds for gible for the benefits of the Act of No- termination, unless the applicant was vember 2, 1966 unless he or she has been previously granted advance parole by physically present in the United States the Service for such absence, and was for one year (amended from two years inspected upon returning to the United by the Refugee Act of 1980). States. If the application of an individ- (3) Submission of documents—(i) Gen- ual granted advance parole is subse- eral. A separate application shall be quently denied, the applicant will be filed by each applicant for benefits subject to the exclusion provisions of under section 245, or the Act of Novem- section 236 of the Act. No alien granted ber 2, 1966. Each application shall be advance parole and inspected upon re- accompanied by an executed Form G– turn shall be entitled to a deportation 325A, if the applicant has reached his hearing. or her 14th birthday. Form G–325A (iii) Under the Act of November 2, 1966. shall be considered part of the applica- If an applicant who was admitted or tion. An application under this part paroled subsequent to January 1, 1959, shall be accompanied by the document later departs from the United States specified in the instructions which are temporarily with no intention of aban- attached to the application. doning his or her residence, and is re- (ii) Under section 245. An application admitted or paroled upon return, the for adjustment of status is submitted temporary absence shall be disregarded on Form I–485, Application for Perma- for purposes of the applicant’s ‘‘last ar- nent Residence. The application must rival’’ into the United States in regard be accompanied by the appropriate fee to cases filed under section 1 of the Act as explained in the instructions to the of November 2, 1966. application. (5) Decision—(i) General. The appli- (iii) Under section 245(i). An alien who cant shall be notified of the decision of seeks adjustment of status under the the director and, if the application is provisions of section 245(i) of the Act denied, the reasons for the denial.

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(ii) Under section 245. If the applica- The decision on the application shall tion is approved, the applicant’s per- be made by the director. No appeal manent residence shall be recorded as shall lie from his decision. If the appli- of the date of the order approving the cation is approved, the applicant will adjustment of status. An application be furnished with a replacement of his for adjustment of status as a pref- Form I–151 or I–551 bearing the new erence alien shall not be approved until date as of which the lawful admission an immigrant visa number has been al- for permanent residence has been re- located by the Department of State, corded. except when the applicant has estab- (c) Application under section 214(d). An lished eligibility for the benefits of application for permanent resident sta- Public Law 101–238. No appeal lies from tus pursuant to section 214(d) of the the denial of an application by the di- Act shall be filed on Form I–485 with rector, but the applicant retains the the director having jurisdiction over right to renew his or her application in the applicant’s place of residence. A proceedings under part 242 of this chap- separate application shall be filed by ter, or under part 236 if the applicant is each applicant. If the application is ap- a parolee and meets the two conditions proved, the director shall record the outlined in § 245.2(a)(1). At the time of lawful admission of the applicant as of renewal of the application, an appli- the date of approval. The fee previously cant does not need to meet the statu- paid for filing the application shall be tory requirement of section 245(c) of considered payment of the required the Act, or the regulatory require- visa fees, as of the date of the approval ments of § 245.1(g), if in fact those re- of the application. The applicant shall quirements were met at the time the be notified of the decision and, if the renewed application was initially filed application is denied, of the reasons with the director. therefor. No appeal shall lie from the (iii) Under the Act of November 2, 1966. denial of an application by the director If the application is approved, the ap- but such denial shall be without preju- plicant’s permanent residence shall be dice to the alien’s right to renew his recorded in accordance with the provi- application in proceedings under part sions of section 1. No appeal lies from 242 of this chapter. the denial of an application by the director, but the applicant retains the [30 FR 14778, Nov. 30, 1965] right to renew his or her application in EDITORIAL NOTE: For FEDERAL REGISTER ci- proceedings under part 242 of this chap- tations affecting § 245.2, see the List of CFR ter, or under part 236, if the applicant Sections Affected in the Finding Aids sec- is a parolee and meets the two condition of this volume. tions outlined in paragraph 1 of § 245.2(a)(1). § 245.3 Adjustment of status under sec- (b) Application under section 2 of the tion 13 of the Act of September 11, Act of November 2, 1966. An application 1957, as amended. by a native or citizen of Cuba or by his Any application for benefits under spouse or child residing in the United section 13 of the Act of September 11, States with him, who was lawfully ad- 1957, as amended, must be filed on mitted to the United States for perma- Form I–485 with the director having ju- nent residence prior to November 2, risdiction over the applicant’s place of 1966, and who desires such admission to residence. The benefits under section 13 be recorded as of an earlier date pursu- are limited to aliens who were admit- ant to section 2 of the Act of November ted into the United States under sec- 2, 1966, shall be made on Form I–485A. tion 101, paragraphs (a)(15)(A)(i), The application shall be accompanied (a)(15)(A)(ii), (a)(15)(G)(i), or by the Alien Registration Receipt (a)(15)(G)(ii) of the Immigration and Card, Form I–151 or I–551, issued to the Nationality Act who performed diplo- applicant in connection with his lawful matic or semi-diplomatic duties and to admission for permanent residence, and their immediate families, and who es- shall be submitted to the director hav- tablish that there are compelling rea- ing jurisdiction over the applicant’s sons why the applicant or the member place of residence in the United States. of the applicant’s immediate family is

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unable to return to the country rep- findings of the mental and physical resented by the government which ac- condition of the applicant shall be in- credited the applicant and that adjust- corporated into the record. A medical ment of the applicant’s status to that examination shall not be required of an of an alien lawfully admitted for per- applicant for adjustment of status who manent residence would be in the na- entered the United States as a non-im- tional interest. Aliens whose duties migrant fiance or fiancee of a United were of a custodial, clerical, or menial States citizen as defined in section nature, and members of their imme- 101(a)(15)(K) of the Act pursuant to diate families, are not eligible for bene- § 214.2(k) of this chapter if the appli- fits under section 13. In view of the an- cant was medically examined prior to, nual limitation of 50 on the number of and as a condition of, the issuance of aliens whose status may be adjusted the nonimmigrant visa; provided that under section 13, any alien who is the medical examination must have oc- prima facie eligible for adjustment of curred not more than one year prior to status to that of a lawful permanent the date of application for adjustment resident under another provision of law of status. Any applicant certified under shall be advised to apply for adjust- paragraphs (1)(A)(ii) or (1)(A)(iii) of ment pursuant to such other provision section 212(a) of the Act may appeal to of law. An applicant for the benefits of a Board of Medical Officers of the U.S. section 13 shall not be subject to the Public Health Service as provided in labor certification requirement of sec- section 234 of the Act and part 235 of tion 212(a)(14) of the Immigration and this chapter. Nationality Act. The applicant shall be notified of the decision and, if the ap- [56 FR 49841, Oct. 2, 1991] plication is denied, of the reasons for the denial and of the right to appeal § 245.6 Interview. under the provisions of part 103 of this Each applicant for adjustment of sta- chapter. Any applications pending with tus under this part shall be interviewed the Service before December 29, 1981 by an immigration officer. This inter- must be resubmitted to comply with view may be waived in the case of a the requirements of this section. child under the age of 14; when the ap- (Secs. 103, 245, of the Immigration and Na- plicant is clearly ineligible under sec- tionality Act, as amended; 71 Stat. 642, as tion 245(c) of the Act or § 245.1 of this amended, sec. 17, Pub. L. 97–116, 95 Stat. 1619 chapter; or when it is determined by (8 U.S.C. 1103, 1255, 1255b)) the Service that an interview is unnec- [47 FR 44238, Oct. 7, 1982, as amended at 59 FR essary. 33905, July 1, 1994] [57 FR 49375, Nov. 2, 1992]

§ 245.4 Documentary requirements. § 245.7 Adjustment of status of certain The provisions of part 211 of this Soviet and Indochinese parolees chapter relating to the documentary under the Foreign Operations Ap- requirements for immigrants shall not propriations Act for Fiscal Year apply to an applicant under this part. 1990 (Pub. L. 101–167). (Secs. 103, 214, 245 Immigration and National- (a) Application. Each person applying ity Act, as amended; (8 U.S.C. 1103, 1184, 8 for benefits under section 599E of Pub- U.S.C. 1255, Sec. 2, 96 Stat. 1157, 8 U.S.C. 1255 lic Law 101–167 must file Form I–485 note)) (Application for Lawful Permanent [30 FR 14779, Nov. 30, 1965. Redesignated at 48 Residence) with the director having ju- FR 4770, Feb. 3, 1983, and further redesig- risdiction over the applicant’s place of nated at 52 FR 6322, Mar. 3, 1982, and further residence and must pay the appropriate redesignated at 56 FR 49481, Oct. 2, 1991] fee. Each application shall be accompanied by Form I–643 (Health and § 245.5 Medical examination. Human Services Statistical Data Pursuant to section 234 of the Act, an Sheet), the results of a medical exam- applicant for adjustment of status ination given in accordance with § 245.8 shall be required to have a medical ex- of this part, and, if the applicant has amination by a designated civil sur- reached his or her 14th birthday but is geon, whose report setting forth the not over 79 years of age, Form G–325A

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and an applicant fingerprint card sued under the Immigration and Na- (Form FD–258). tionality Act. (b) Aliens eligible to apply for adjust- [55 FR 24860, July 19, 1990. Redesingated at 56 ment. The benefits of this section shall FR 49841, Oct. 2, 1991, as amended at 59 FR only apply to an alien who: 33905, July 1, 1994] (1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia, § 245.8 Adjustment of status as a special immigrant under section and 101(a)(27)(K) of the Act. (2) Was inspected and granted parole (a) Application. Each person applying into the United States during the pe- for adjustment of status as a special riod beginning on August 15, 1988, and immigrant under section 101(a)(27)(K) ending on September 30, 1990, after of the Act must file a Form I–485, Ap- being denied refugee status. plication to Register Permanent Resi- (c) Eligibility. Benefits under Section dence or Adjust Status, with the direc- 599E of Public Law 101–167 are limited tor having jurisdiction over the appli- to any alien described in paragraph (b) cant’s place of residence. Benefits of this section who: under this section are limited to aliens (1) Applies for such adjustment, who have served honorably (or are en- (2) Has been physically present in the listed to serve) in the Armed Forces of United States for at least one year and the United States for at least 12 years, is physically present in the United and their spouses and children. For States on the date the application for purposes of this section, special immi- such adjustment is filed, grants described in section 101(a)(27)(K) (3) Is admissible to the United States of the Act and his or her spouse and as an immigrant, except as provided in children shall be deemed to have been paragraph (d) of this section, and paroled into the United States pursuant to section 245(g) of the Act. Each (4) Pays a fee for the processing of applicant must file a separate applica- such application. tion with the appropriate fee. (d) Waiver of certain grounds for inad- (b) Eligibility. The benefits of this sec- missibility. The provisions of paragraphs tion shall apply only to an alien de- (14), (15), (20), (21), (25), (28) (other than scribed in section 101(a)(27)(K) of the subparagraph (F), and (32) of section Act who applies for such adjustment. 212(a) of the Act shall not apply to ad- The accompanying spouse or child of justment under this section. The At- an applicant for adjustment of status torney General may waive any other who benefits from Public Law 102–110 provision of section 212(a) (other than may also apply for adjustment of sta- paragraph (23)(B), (27), (29), or (33)) with tus. The provisions of section 245(c) of respect to such an adjustment for hu- the Act do not apply to the principal manitarian purposes, to assure family Armed Forces special immigrant or to unity, or when it is otherwise in the his or her spouse or child. public interest. (c) Interview of the applicant. Upon (e) Date of approval. Upon approval of completion of the adjustment of status such an application for adjustment of interview for a special immigrant status, the Attorney General shall cre- under section 101(a)(27)(K) of the Act, ate a record of the alien’s admission as the director shall make a prima facie a lawful permanent resident as of the determination regarding eligibility for naturalization benefits if the applicant date of the alien’s inspection and pa- is to be granted status as an alien law- role described in paragraph (b)(2) of fully admitted for permanent resi- this section. dence. If the director determines that (f) No offset in number of visas avail- the applicant is immediately eligible able. When an alien is granted the sta- for naturalization under section 328 or tus of having been lawfully admitted 329 of the Act, the director shall advise for permanent residence under this sec- the applicant that he or she is eligible tion, the Secretary of State shall not to apply for naturalization on Form N– be required to reduce the number of 400, Application to File Petition for immigrant visas authorized to be is- Naturalization. If the applicant wishes

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to apply for naturalization, the direc- section may apply for adjustment of tor shall instruct the applicant con- status as qualified family members. cerning the requirements for natu- (b) Aliens eligible to apply for adjust- ralization and provide him or her with ment. An alien is eligible to apply for the necessary forms. adjustment of status under the provi- (d) Spouse or child outside the United sions of Public Law 102–404, if the alien: States. When a spouse or child of an (1) Is a national of the People’s Re- alien granted special immigrant status public of China or a qualified family under section 101(a)(27)(K) of the Act is member of an eligible national of the outside the United States, the prin- People’s Republic of China; cipal alien may file Form I–824, Appli- (2) Was in the United States at some cation for Action on an Approved Ap- time between June 5, 1989, and April 11, plication or Petition, with the office 1990, inclusive, or would have been in which approved the original applica- the United States during this time pe- tion. riod except for a brief, casual, and in- (e) Deportation provisions of section nocent departure from this country; 241. If the Service is made aware by no- (3) Has resided continuously in the tification from the appropriate executive department or by any other means United States since April 11, 1990, ex- that a section 101(a)(27)(K) special im- cept for brief, casual, and innocent ab- migrant who has already been granted sences; permanent residence fails to complete (4) Was not physically present in the his or her total active duty service ob- People’s Republic of China for more ligation for reasons other than an hon- than a cumulative total of 90 days be- orable discharge, the alien may become tween April 11, 1990, and October 9, subject to the deportation provisions of 1992; section 241 of the Act, provided the (5) Is admissible to the United States alien is in one or more of the classes of as an immigrant, unless the basis for deportable aliens specified in section excludability has been waived; 241 of the Act. The Service shall obtain (6) Establishes eligibility for adjust- a current Form DD–214, Certificate of ment of status under all provisions of Release or Discharge from Active section 245 of the Act, unless the basis Duty, from the appropriate executive for ineligibility has been waived; and department for verification of the (7) Properly files an application for alien’s failure to maintain eligibility. adjustment of status under section 245 (f) Rescission proceedings under section of the Act. If the Service determines 246 of the Act. (c) Qualified family member who is not that a military special immigrant a national of the People’s Republic of under section 101(a)(27)(K) of the Act China. A qualified family member was not in fact eligible for adjustment of status, the Service may pursue re- within the meaning of this section in- scission proceedings under section 246 cludes the spouse, child, son, or daugh- of the Act. ter of a national of the People’s Repub- lic of China who is eligible for benefits [57 FR 33862, July 31, 1992, as amended at 58 under the provisions of paragraph (b) of FR 50836, Sept. 29, 1993] this section, provided that: (1) He or she qualified as the spouse § 245.9 Adjustment of Status of Certain Nationals of the People’s Republic or child (as defined in section 101(b)(1) of China under Public Law 102–404. of the Act) of an eligible national of the People’s Republic of China as of (a) Principal applicant status. All nationals of the People’s Republic of April 11, 1990; and China who qualify under the provisions (2) The qualifying relationship con- of paragraph (b) of this section may tinues to exist, or the family member apply for adjustment of status as prin- is a son or daughter of an eligible na- cipals in their own right, regardless of tional of the People’s Republic of China age or marital status. Nationals of and the family member was unmarried other countries who meet the require- and under the age of 21 on April 11, ments of paragraphs (b) and (c) of this 1990.

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(d) Waivers of excludability under sec- (i) The date of the applicant’s last ar- tion 212(a). An applicant for the bene- rival in the United States before or on fits of the adjustment of status provi- April 11, 1990; sions of Public Law 102–404 automati- (ii) The date of each departure the cally exempted from compliance with applicant made from the United States the requirements of section 212(a)(5) since that arrival (if the applicant did and 212(a)(7)(A) of the Act. A Public not depart the United States after the Law 102–404 applicant may also apply initial date of arrival, the applicant for one or more waivers of exclud- should write ‘‘I was in the United ability under section 212(a) of the Act, States on April 11, 1990, and I have not except for excludability under section departed the United States since April 212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B), 11, 1990’’); 212(a)(3)(C) or 212(a)(3)(E) of the Act. (iii) The reason for each departure; (e) Waiver of the two-year foreign resi- and dence requirement of section 212(e). An (iv) The date of each return to the applicant for the benefits of the adjust- United States. ment of status provisions of Public (3) An attachment on a plain piece of Law 102–404 is automatically exempted paper showing: from compliance with the two-year for- (i) The date the applicant arrived in eign residence requirement of section the People’s Republic of China; and 212(e) of the Act. (ii) The date the applicant left the (f) Waiver of section 245(c) of the Act. People’s Republic of China for each trip Public Law 102–404 provides that the the applicant made to the People’s Re- provisions of section 245(c) of the Act public of China between April 11, 1990, shall not apply to persons applying for and October 9, 1992 (if the applicant did the adjustment of status benefits of not travel to the People’s Republic of Public Law 102–404. China, the applicant should write ‘‘I was not in the People’s Republic of (g) Application. Each applicant must China between April 11, 1990, and Octo- file an application for adjustment of ber 9, 1992’’); status on Form I–485, Application to (4) A copy of evidence showing that Register Permanent Residence or Ad- the applicant was found eligible for just Status, accompanied by the pre- benefits under E.O. 12711, such as described fee, and the supporting docu- ferred enforced departure (DED), em- ments specified on the instructions to ployment authorization, and/or waiver Form I–485 and described in § 245.2. Sec- of the two-year foreign residence re- ondary evidence may be submitted if quirement, if the applicant previously the applicant is unable to obtain the applied for benefits under E.O. 12711; required primary evidence. Applicants and who are nationals of the People’s Re- (5) Primary or secondary evidence of public of China should complete Part 2 a qualifying family relationship to an of Form I–485 by checking box ‘‘h— eligible national of the People’s Repub- other’’ and writing ‘‘CSPA—Principal’’ lic of China, such as a birth or mar- next to that block. Applicants who are riage certificate, if the applicant is a not nationals of the People’s Republic qualified family member who is not a of China should complete Part 2 of national of the People’s Republic of Form I–485 by checking box ‘‘h—other’’ China. and writing ‘‘CSPA—Qualified Family (h) Secondary evidence. If any required Member’’ next to that block. Each ap- primary evidence is unavailable, plicant for the benefits of Public Law church or school records, or other sec- 102–404 must also submit evidence of ondary evidence pertinent to the facts eligibility for the adjustment of status in issue, may be submitted. If such doc- benefits of Public Law 102–404: uments are unavailable, affidavits may (1) A photocopy of all pages of the ap- be submitted. The applicant may sub- plicant’s most recent passport or an ex- mit as many types of secondary evi- planation of why the applicant does dence as necessary to establish the not have a passport; birth, marriage, or other event. Docu- (2) An attachment on a plain piece of mentary evidence establishing that paper showing: primary evidence is unavailable need

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not accompany secondary evidence of under section 203(b)(3)(A)(i) of the Act. birth or marriage in the People’s Re- The applicant may request initial or public of China. continued employment authorization (i) Filing. The application period be- during this period by filing Form I–765, gins on July 1, 1993. To benefit from Application for Employment Author- the provisions of Public Law 102–404 ization. If the applicant needs to travel (the Chinese Student Protection Act of outside the United States during this 1992), an alien must properly file an ap- period, he or she may file a request for plication for adjustment of status advance parole on Form I–131, Applica- under section 245 of the Act on or be- tion for Travel Document. fore June 30, 1994. All applications for (l) Decision. In the case of an applica- the benefits of Public Law 102–404 must tion for adjustment of status filed pur- be submitted by mail to the Service suant to the provisions of Public Law Center having jurisdiction over the ap- 102–404, the authority conferred upon plicant’s place of residence in the Unit- district directors in 8 CFR part 245 to ed States. Pursuant to the deactivation clause of Public Law 102–404, if the accept and adjudicate an application President of the United States deter- for adjustment of status under section mines and certifies to Congress before 245 of the Act is delegated exclusively July 1, 1993, that conditions in the Peo- to the service center director having ple’s Republic of China permit persons jurisdiction over the applicant’s place covered by Public Law 102–404 to safely of residence in the United States. If the return to the People’s Republic of service center director transfers the China, no applications for lawful per- application to the district director, au- manent resident status under Public thority to adjudicate an application for Law 102–404 will be processed or grant- adjustment of status filed pursuant to ed. the provisions of Public Law 102–404 (j) Immigrant classification and assign- lies with the district director having ment of priority date. Public Law 102–404 jurisdiction over the applicant’s place provides eligible applicants with auto- of residence. matic classifications as immigrants (m) Effect of enactment on family mem- under section 203(b)(3)(A)(i) of the Act. bers other than qualified family members. No immigrant visa petition is required The adjustment of status benefits and and applicants need not meet the usual waivers provided by Public Law 102–404 requirements for classification as do not apply to a spouse or child who is skilled workers. The applicant’s prior- not a qualified family member as de- ity date shall be the date his or her ap- fined in paragraph (c) of this section. plication for adjustment of status However, a spouse or child whose rela- under Public Law 102–404 is properly tionship to the principal alien was es- filed with the Service. tablished prior to the approval of the (k) Effect of immigrant visa number lim- principal’s adjustment of status appli- itations. Eligible Public Law 102–404 ap- cation may be accorded the derivative plicants are exempt from the per-coun- priority date and preference category try immigrant visa number limitations of the principal alien, in accordance of section 202(a)(2) of the Act. Eligible Public Law 102–404 applicants may file with the provisions of section 203(d) of an application for adjustment of status the Act. The spouse or child may use under Public Law 102–404 without re- the priority date and category when it gard to immigrant visa number limita- becomes current, in accordance with tions of sections 202(a)(2) and the limitations set forth in sections 201 203(b)(3)(A)(i) of the Act. However, the and 202 of the Act. Persons who are un- adjustment of status application may able to maintain lawful nonimmigrant not be approved and adjustment of sta- status in the United States and are not tus to that of a lawful permanent resi- immediately eligible to apply for ad- dent of the United States may not be justment of status may request vol- granted until a visa number becomes untary departure pursuant to 8 CFR available for the applicant under the part 242. Persons who have been grant- worldwide allocation of immigrant visa ed voluntary departure may request numbers for employment-based aliens employment authorization by filing

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Form I–765, Application for Employ- (3) The child of a legalized alien, is ment Authorization. unmarried and less than 21 years of [58 FR 35838, July 1, 1993] age, qualifies for and has properly filed Form I-817, and submits a copy of his § 245.10 Adjustment of status upon or her receipt or approval notice for fil- payment of additional sum under ing Form I-817. Public Law 103–317. (c) Application period. An application (a) Eligibility. Any alien who is infor the adjustment of status benefits of cluded in the categories of restricted section 245(i) of the Act may not be aliens under § 245.1(b) may apply for ad- filed before October 1, 1994. An applica- justment of status under section 245 of tion for the adjustment of status bene- the Act if the alien: fits of section 245(i) of the Act cannot (1) Is physically present in the United be granted on or after October 1, 1997. A States; prospective applicant who is seeking (2) Is eligible for immigrant classi- the benefits of section 245(i) of the Act fication and has an immigrant visa must file the application sufficiently in number immediately available at the time of filing for adjustment of status; advance of October 1, 1997, to ensure (3) Is not excludable from the United that it may be completed before that States under any provision of section date. 212 of the Act, or all grounds for ex- (d) Adjustment application filed on or cludability have been waived; after October 1, 1994, without Supplement (4) Properly files Form I–485, Applica- A to Form I–485. An adjustment of station to Register Permanent Residence tus applicant will be allowed the oppor- or Adjust Status on or after October 1, tunity to amend an adjustment of sta- 1994, with the fee required for that ap- tus application filed on or after Octo- plication; ber 1, 1994, to request consideration (5) Properly files Supplement A to under the provisions of section 245(i) of Form I–485 on or after October 1, 1994; the Act, if it appears that the alien is (6) Pay an additional sum of five not otherwise ineligible for adjustment times the fee required for filing Form of status. The applicant will be notified I–485, unless payment of the additional in writing of the intent to deny the ad- sum is waived under section 245(i) of justment of status application unless the Act; and Supplement A to Form I–485 and any (7) Will adjust status under section required additional sum is filed within 245 of the Act to that of a lawful per- thirty days of the date of the notice. manent resident of the United States on or after October 1, 1994, and before (e) Applications for Adjustment of Sta- October 1, 1997. tus filed before October 1, 1994. The pro- (b) Payment of additional sum. An ap- visions of section 245(i) of the Act shall plicant filing under the provisions of not apply to an application for adjust- section 245(i) of the Act must pay the ment of status that was filed before Oc- standard adjustment of status filing tober 1, 1994. The provisions of section fee, as shown on Form I–485 and con- 245(i) of the Act shall also not apply to tained in § 103.7(b)(1) of this chapter. a motion to reopen or reconsider an ap- The applicant must also pay an addi- plication for adjustment of status if tional sum of five times the standard the application for adjustment of sta- filing fee, unless at the time the appli- tus was filed before October 1, 1994. If cation for adjustment of status is filed, otherwise eligible for adjustment of the alien is: status under the provisions of section (1) Unmarried and less than 17 years 245(i) of the Act, the alien may file a of age; new application for adjustment of sta- (2) The spouse of a legalized alien, tus, accompanied by the required filing qualifies for and has properly filed fee, Supplement A to Form I–485, and Form I–817, Application for Voluntary any additional sum required by section Departure under the Family Unity Pro- 245(i) of the Act. gram, and submits a copy of his or her receipt or approval notice for filing [59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20, Form I–817; or 1994]

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§ 245.11 Adjustment of aliens in S non- view the information and determine immigrant classification. whether to certify the request to the (a) Eligibility. An application on Form Commissioner in accordance with the I–854, requesting that an alien witness instructions on the form. or informant in S nonimmigrant classi- (3) Submission of requests for adjust- fication be allowed to adjust status to ment of status to the Commissioner. No that of lawful permanent resident, may application by an LEA on Form I–854 only be filed by the federal or state law requesting the adjustment to lawful enforcement authority (‘‘LEA’’) (which permanent resident status of an S non- shall include a federal or state court or immigrant shall be forwarded to the a United States Attorney’s Office) that Commissioner unless first certified by originally requested S classification the Assistant Attorney General, Crimi- for the alien. The completed applica- nal Division. tion shall be filed with the Assistant (4) Decision on request to allow adjust- Attorney General, Criminal Division, ment of S nonimmigrant. The Commis- Department of Justice, who will for- sioner shall make the final decision on ward only properly certified applica- a request to allow an S nonimmigrant tions to the Commissioner, Immigra- to apply for adjustment of status to tion and Naturalization Service, for ap- lawful permanent resident. proval. Upon receipt of an approved (i) In the event the Commissioner de- Form I–854 allowing the S non- cides to deny an application on Form I– immigrant to adjust status to that of 854 to allow an S nonimmigrant to lawful permanent resident, the alien apply for adjustment of status, the As- may proceed to file with that Form, sistant Attorney General, Criminal Di- Form I–485, Application to Register vision, and the relevant LEA shall be Permanent Residence or Adjust Status, notified in writing to that effect. The pursuant to the following process. Assistant Attorney General, Criminal (1) Request to allow S nonimmigrant to Division, shall concur in or object to apply for adjustment of status to that of that decision. Unless the Assistant At- lawful permanent resident. The LEA that torney General, Criminal Division, ob- requested S nonimmigrant classifica- jects within 7 days, he or she shall be tion for an S nonimmigrant witness or informant pursuant to section deemed to have concurred in the deci- 101(a)(15)(S) of the Act may request sion. In the event of an objection by that the principal S nonimmigrant be the Assistant Attorney General, Crimi- allowed to apply for adjustment of sta- nal Division, the matter will be expedi- tus by filing Form I–854 with the As- tiously referred to the Deputy Attor- sistant Attorney General, Criminal Di- ney General for a final resolution. In vision, in accordance with the instruc- no circumstances shall the alien or the tions on, or attached to, that form and relevant LEA have a right of appeal certifying that the alien has fulfilled from any decision to deny. the terms of his or her admission and (ii) Upon approval of the request on classification. The same Form I–854 Form I–854, the Commissioner shall may be used by the LEA to request forward a copy of the approved form to that the principals nonimmigrant’s the Assistant Attorney General and the spouse, married and unmarried sons S nonimmigrant, notifying them that and daughters, regardless of age, and the S nonimmigrant may proceed to parents who are in derivative S non- file Form I–485 and request adjustment immigrant classification and who are of status to that of lawful permanent qualified family members as described resident, and that, to be eligible for ad- in paragraph (b) of this section simi- justment of status, the nonimmigrant larly be allowed to apply for adjust- must otherwise: ment of status pursuant to section (A) Meet the requirements of para- 101(a)(15)(S) of the Act. graph (b) of this section, if requesting (2) Certification. Upon receipt of an adjustment as a qualified family mem- LEA’s request for the adjustment of an ber of the certified principal S non- alien in S nonimmigrant classification immigrant witness or informant; on Form I–854, the Assistant Attorney (B) Be admissible to the United General, Criminal Division, shall re- States as an immigrant, unless the

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ground of excludability has been tion. However, a spouse or an unmar- waived; ried child who is less than 21 years old, (C) Establish eligibility for adjust- and whose relationship to the principal ment of status under all provisions of S nonimmigrant or qualified family section 245 of the Act, unless the basis member was established prior to the for ineligibility has been waived; and approval of the principal S non- (D) Properly file with his or her immigrant’s adjustment of status ap- Form I–485, Application to Register plication, may be accorded the priority Permanent Residence or Adjust Status, date and preference category of the the approved Form I–854. principal S nonimmigrant or qualified (b) Family members—(1) Qualified fam- family member, in accordance with the ily members. A qualified family member provisions of section 203(d) of the Act. of an S nonimmigrant includes the Such a spouse or child: spouse, married or unmarried son or (i) May use the principal S non- daughter, or parent of a principal S immigrant or qualified member’s prior- nonimmigrant who meets the require- ity date and category when it becomes ments of paragraph (a) of this section, current, in accordance with the limita- provided that: tions set forth in sections 201 and 202 of (i) The family member qualified as the Act; the spouse, married or unmarried son (ii) May seek immigrant visa issu- or daughter, or parent (as defined in ance abroad or adjustment of status to section 101(b) of the Act) of the prin- that of a lawful permanent resident of cipal S nonimmigrant when the family the United States when the priority member was admitted as or granted a date becomes current for the spouse’s change of status to that of a non- or child’s country of chargeability immigrant under section 101(a)(15)(S) under the fourth employment-based of the Act; preference classification; (ii) The family member was admitted (iii) Must meet all the requirements in S nonimmigrant classification to ac- for immigrant visa issuance or adjust- company, or follow to join, the prin- ment of status, unless those require- cipal S–5 or S–6 alien pursuant to the ments have been waived; LEA’s request; (iv) Is not applying for adjustment of (iii) The family member is not ex- status under 101(a)(15)(S) of the Act, is cludable from the United States as a not required to file Form I–854, and is participant in Nazi persecution or not required to obtain LEA certifi- genocide as described in section cation; and 212(a)(3)(E) of the Act; (v) Will lose eligibility for benefits if (iv) The qualifying relationship con- the child marries or has his or her tinues to exist; and twenty-first birthday before being ad- (v) The principal alien has adjusted mitted with an immigrant visa or status, has a pending application for granted adjustment of status. adjustment of status or is concurrently (c) Waivers of excludability. An alien filing an application for adjustment of seeking to adjust status pursuant to status under section 101(a)(15)(S) of the the provisions of section 101(a)(15)(S) of Act. the Act may not be denied adjustment (vi) Paragraphs (b)(1)(iv) and (v) of of status for conduct or a condition this section do not apply if the alien which: witness or informant has died and, in (1) Was disclosed to the Attorney the opinion of the Attorney General, General prior to admission; and was in compliance with the terms of (2) Was specifically waived pursuant his or her S classification under sec- to the waiver provisions set forth at tion 245(i) (1) and (2) of the Act. section 212(d)(1) and 212(d)(3) of the (2) Other family member. The adjust- Act. ment provisions in this section do not (d) Application. Each S nonimmigrant apply to a family member who has not requesting adjustment of status under been classified as an S nonimmigrant section 101(a)(15)(S) of the Act must: pursuant to a request on Form I–854 or (1) File Form I–485, with the pre- who does not otherwise meet the re- scribed fee, accompanied by the ap- quirements of paragraph (b) of this sec- proved Form I–854, and the supporting

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documents specified in the instructions pending by filing Form I–765, Applica- to Form I–485 and described in 8 CFR tion for Employment Authorization. If 245.2. Secondary evidence may be sub- the alien needs to travel outside the mitted if the nonimmigrant is unable United States during this period, he or to obtain the required primary evi- she may file a request for advance pa- dence as provided in 8 CFR 103.2(b)(2). role on Form I–131, Application for The S nonimmigrant applying to ad- Travel Document. just must complete Part 2 of Form I– (g) Filing and decision. An application 485 by checking box ‘‘h-other’’ and for adjustment of status filed by an S writing ‘‘S’’ or ‘‘S-Qualified Family nonimmigrant under section Member.’’ Qualified family members 101(a)(15)(S) of the Act shall be filed must submit documentary evidence of with the district director having juris- the relationship to the principal S non- diction over the alien’s place of resi- immigrant witness or informant. dence. Upon approval of adjustment of (2) Submit detailed and inclusive evi- status under this section, the district dence of eligibility for the adjustment director shall record the alien’s lawful of status benefits of S classification, admission for permanent residence as which shall include: of the date of such approval. The dis- (i) A photocopy of all pages of the trict director shall notify the Commis- alien’s most recent passport or an ex- sioner and the Assistant Attorney Gen- planation of why the alien does not eral, Criminal Division, of the adjust- have a passport; or ment. (ii) An attachment on a plain piece of (h) Deportation under section 241 of the paper showing the dates of all arrivals Act. Nothing in this section shall pre- and departures from the United States vent an alien adjusted pursuant to the in S nonimmigrant classification and terms of these provisions from being the reason for each departure; and deported for conviction of a crime of (iii) Primary evidence of a qualifying moral turpitude committed within 10 relationship to the principal S non- years after being provided lawful per- immigrant, such as birth or marriage manent residence under this section or certificate. If any required primary for any other ground under section 241 evidence is unavailable, church or of the Act. school records, or other secondary evi- (i) Denial of application. In the event dence may be submitted. If such docu- the district director decides to deny an ments are unavailable, affidavits may application on Form I–485 and an ap- be submitted as provided in 8 CFR proved Form I–854 to allow an S non- 103.2(b)(2). immigrant to adjust status, the Assist- (e) Priority date. The S non- ant Attorney General, Criminal Divi- immigrant’s priority date shall be the sion, and the relevant LEA shall be no- date his or her application for adjust- tified in writing to that effect. The As- ment of status as an S nonimmigrant sistant Attorney General, Criminal Di- is properly filed with the Service. vision, shall concur in or object to that (f) Visa number limitation. An adjust- decision. Unless the Assistant Attor- ment of status application under sec- ney General, Criminal Division, objects tion 101(a)(15)(S) of the Act may be within 7 days, he or she shall be filed regardless of the availability of deemed to have concurred in the deci- immigrant visa numbers. The adjust- sion. In the event of an objection by ment of status application may not, the Assistant Attorney General, Crimi- however, be approved and the alien’s nal Division, the matter will be expedi- adjustment of status to that of lawful tiously referred to the Deputy Attor- permanent resident of the United ney General for a final resolution. In States may not be granted until a visa no circumstances shall the alien or the number becomes available for the alien relevant LEA have a right of appeal under the worldwide allocation for em- from any decision to deny. A denial of ployment-based immigrants under sec- an adjustment application under this tion 201(d) and section 203(b)(4) of the paragraph may not be renewed in sub- Act. The alien may request initial or sequent deportation proceedings. continued employment authorization [60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. while the adjustment application is 5, 1995]

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PART 245a—ADJUSTMENT OF STA- to emergent reasons, his or her return TUS TO THAT OF PERSONS AD- to the United States could not be accomplished within the time period al- MITTED FOR LAWFUL TEMPORARY lowed; OR PERMANENT RESIDENT STATUS (ii) The alien was maintaining resi- UNDER SECTION 245A OF THE dence in the United States; and IMMIGRATION AND NATIONAL- (iii) The alien’s departure from the ITY ACT United States was not based on an order of deportation. Sec. An alien who has been absent from the 245a.1 Definitions. United States in accordance with the 245a.2 Application for temporary residence. 245a.3 Application for adjustment from tem- Service’s advance parole procedures porary to permanent resident status. shall not be considered as having inter- 245a.4 Adjustment to lawful resident status rupted his or her continuous residence of certain nationals of countries for as required at the time of filing an ap- which extended voluntary departure has plication. been made available. (2) Continuous residence, as used in 245a.5 Temporary disqualification of certain section 245A(b)(1)(B) of the Act, means newly legalized aliens from receiving that the alien shall be regarded as hav- benefits from programs of financial assistance furnished under federal law. ing resided continuously in the United States if, at the time of applying for AUTHORITY: 8 U.S.C. 1101, 1103, 1255a and adjustment from temporary residence 1255a note. to permanent resident status: No single SOURCE: 52 FR 16208, May 1, 1987, unless absence from the United States has ex- otherwise noted. ceeded thirty (30) days, and the aggregate of all absences has not exceeded § 245a.1 Definitions. ninety (90) days between the date of As used in this chapter: granting of lawful temporary resident (a) Act means the Immigration and status and of applying for permanent Nationality Act, as amended by The resident status, unless the alien can es- Immigration Reform and Control Act tablish that due to emergent reasons of 1986. the return to the United States could (b) Service means the Immigration not be accomplished within the time and Naturalization Service (INS). period(s) allowed. (c)(1) Resided continuously as used in (d) In the term alien’s unlawful status section 245A(a)(2) of the Act, means was known to the government, the term that the alien shall be regarded as hav- government means the Immigration and ing resided continuously in the United Naturalization Service. An alien’s un- States if, at the time of filing of the lawful status was known to the govern- application for temporary resident sta- ment only if: tus: (1) The Service received factual infor- An alien who after appearing for a mation constituting a violation of the scheduled interview to obtain an immi- alien’s nonimmigrant status from any grant visa at a Consulate or Embassy agency, bureau or department, or sub- in Canada or Mexico but who subse- division thereof, of the Federal govern- quently is not issued an immigrant ment, and such information was stored visa and who is paroled back into the or otherwise recorded in the official United States, pursuant to the state- Service alien file, whether or not the side criteria program, shall be regarded Service took follow-up action on the as having been granted advance parole information received. In order to meet by the Service. the standard of information constituting (i) No single absence from the United a violation of the alien’s nonimmigrant States has exceeded forty-five (45) status, the alien must have made a days, and the aggregate of all absences clear statement or declaration to the has not exceeded one hundred and other federal agency, bureau or depart- eighty (180) days between January 1, ment that he or she was in violation of 1982 through the date the application nonimmigrant status; or for temporary resident status is filed, (2) An affirmative determination was unless the alien can establish that due made by the Service prior to January

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1, 1982 that the alien was subject to de- stated to nonimmigrant student sta- portation proceedings. Evidence that tus. may be presented by an alien to sup- (e) The term to make a determination port an assertion that such a deter- as used in § 245a.2(t)(3) of this part mination was made may include, but is means obtaining and reviewing all in- not limited to, official Service docu- formation required to adjudicate an ap- ments issued prior to January 1, 1982, plication for the benefit sought and i.e., Forms I–94, Arrival-Departure making a decision thereon. If fraud, Records granting a period of time in willful misrepresentation or conceal- which to depart the United States ment of a material fact, knowingly without imposition of proceedings; providing a false writing or document, Forms I–210, Voluntary Departure No- knowingly making a false statement or tice letter; and Forms I–221, Order to representation, or any other activity Show Cause and Notice of Hearing. Evi- prohibited by section 245A(c)(6) of the dence from Service records that may be Act is established during the process of used to support a finding that such a making the determination on the ap- determination was made may include, plication, the Service shall refer to the but is not limited to, record copies of United States Attorney for prosecution the aforementioned forms and other of the alien or of any person who cre- documents contained in alien files, i.e., ated or supplied a false writing or doc- Forms I–213, Record of Deportable ument for use in an application for ad- Alien; justment of status under this part. (f) The term continuous physical pres- Unexecuted Forms I–205, Warrant of ence as used in section 245A(a)(3)(A) of Deportation; Forms I–265, Application the Act means actual continuous pres- for Order to Show Cause and Process- ence in the United States since Novem- ing Sheet; Forms I–541, Order of Denial ber 6, 1986 until filing of any applica- of Application for Extension of Stay tion for adjustment of status. Aliens granting a period of time in which to who were outside of the United States depart the United States without impo- on the date of enactment or departed sition of proceedings, or any other the United States after enactment may Service record reflecting that the apply for legalization if they reentered alien’s nonimmigrant status was con- prior to May 1, 1987, provided they sidered by the Service to have termi- meet the continuous residence require- nated or the alien was otherwise deter- ments, and are otherwise eligible for mined to be subject to deportation pro- legalization. ceedings prior to January 1, 1982, (g) Brief, casual, and innocent means a whether or not deportation proceedings departure authorized by the Service were instituted; or (advance parole) subsequent to May 1, (3) A copy of a response by the Serv- 1987 of not more than thirty (30) days ice to any other agency which advised for legitimate emergency or humani- that agency that a particular alien had tarian purposes unless a further period no legal status in the United States or of authorized departure has been grant- for whom no record could be found. ed in the discretion of the district di- (4) The applicant produces docu- rector or a departure was beyond the mentation from a school approved to alien’s control. enroll foreign students under § 214.3 (h) The term brief and casual absences which establishes that the said school as used in section 245a(b)(3)(A) of the forwarded to the Service a report that Act permits temporary trips abroad as clearly indicated the applicant had vio- long as the alien establishes a continu- lated his or her nonimmigrant student ing intention to adjust to lawful per- status prior to January 1, 1982. A manent resident status. However, such school may submit an affirmation that absences must comply with the school did forward to the Service § 245a.3(b)(2) of this chapter in order for the aforementioned report and that the the alien to maintain continuous resi- school no longer has available copies of dence as specified in the Act. the actual documentation sent. In (i) Public cash assistance means in- order to be eligible under this part, the come or needs-based monetary assist- applicant must not have been rein- ance to include, but not limited to,

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supplemental security income received or (2) a crime treated as a misdemeanor by the alien through federal, state, or under 8 CFR 245a.1(p). For purposes of local programs designed to meet sub- this definition, any crime punishable sistence levels. It does not include as- by imprisonment for a maximum term sistance in kind, such as food stamps, of five days or less shall not be consid- public housing, or other non-cash bene- ered a misdemeanor. fits, nor does it include work-related (p) Felony means a crime committed compensation or certain types of medi- in the United States, punishable by im- cal assistance (Medicare, Medicaid, prisonment for a term of more than emergency treatment, services to preg- one year, regardless of the term such nant women or children under 18 years alien actually served, if any, except: of age, or treatment in the interest of When the offense is defined by the public health). State as a misdemeanor and the sen- (j) Legalization Office means local of- tence actually imposed is one year or fices of the Immigration and Natu- less regardless of the term such alien ralization Service which accept and actually served. Under this exception, process applications for Legalization or for purposes of 8 CFR part 245a, the Special Agricultural Worker status, crime shall be treated as a mis- under the authority of the INS district demeanor. directors in whose districts such offices (q) Subject of an Order to Show Cause are located. means actual service of the Order to (k) Regional Processing Facility means Show Cause upon the alien through the Service offices established in each of mail or by personal service. the four Service regions to adjudicate, (r) A qualified designated entity in under the authority of the INS Direc- good-standing with the Service means tors of the Regional Processing Facili- those designated entities whose cooper- ties, applications for adjustment of sta- ative agreements were not suspended tus under section 210, 245A(a) or or terminated by the Service or those 245A(b)(1) of the Act. whose agreements were not allowed to (l) Designated entity means any state, local, church, community, farm labor lapse by the Service prior to January organization, voluntary organization, 30, 1989 (the expiration date of the INS association of agricultural employers cooperative agreements for all des- or individual determined by the Serv- ignated entities), or those whose agree- ice to be qualified to assist aliens in ments were not terminated for cause the preparation of applications for Le- by the Service subsequent to January galization status. 30, 1989. (m) The term family unity as used in Subsequent to January 30, 1989, and section 245(d)(2)(B)(i) of the Act means throughout the period ending on No- maintaining the family group without vember 6, 1990, a QDE in good-standing deviation or change. The family group may: (1) Serve as an authorized course shall include the spouse, unmarried provider under § 245a.3(b)(5)(i)(C) of this minor children under 18 years of age chapter; (2) Administer the IRCA Test who are not members of some other for Permanent Residency (proficiency household, and parents who reside reg- test), provided an agreement has been ularly in the household of the family entered into with and authorization group. has been given by INS under (n) The term prima facie as used in § 245a.1(s)(5) of this chapter; and, (3) section 245(e)(1) and (2) of the Act Certify as true and complete copies of means eligibility is established if the original documents submitted in sup- applicant presents a completed I–687 port of Form I–698 in the format pre- and specific factual information which scribed in § 245a.3(d)(2) of this chapter. in the absence of rebuttal will establish (s) Satisfactorily pursuing, as used in a claim of eligibility under this part. section 245A(b)(1)(D)(i)(II) of the Act, (o) Misdemeanor means a crime com- means: mitted in the United States, either (1) (1) An applicant for permanent resi- punishable by imprisonment for a term dent status has attended a recognized of one year or less, regardless of the program for at least 40 hours of a mini- term such alien actually served, if any, mum 60-hour course as appropriate for

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his or her ability level, and is dem- tional English within the context of onstrating progress according to the the history and government of the performance standards of the English/ United States. Such test may be given citizenship course prescribed by the by INS, as well as, State Departments recognized program in which he or she of Education (SDEs) (and their accred- is enrolled (as long as enrollment oc- ited educational agencies) and Quali- curred on or after May 1, 1987, course fied Designated Entities in good-stand- standards include attainment of par- ing (QDEs) upon agreement with and ticular functional skills related to authorization by INS. Those SDEs and communicative ability, subject matter QDEs wishing to participate in this ef- knowledge, and English language com- fort should write to the Director of the petency, and attainment of these skills INS Outreach Program at 425 ‘‘I’’ is measured either by successful com- Street, NW., Washington, DC 20536, for pletion of learning objectives appro- further information. priate to the applicant’s ability level, (t) Minimal understanding of ordi- or attainment of a determined score on nary English as used in section a test or tests, or both of these); or 245A(b)(1)(D)(i) of the Act means an ap- (2) An applicant presents a high plicant can satisfy basic survival needs school diploma or general educational and routine social demands. The person development diploma (GED) from a can handle jobs that involve following school in the United States. A GED simple oral and very basic written gained in a language other than Eng- communication. lish is acceptable only if a GED English (u) Curriculum means a defined course proficiency test has been passed. (The for an instructional program. Mini- curriculum for both the high school di- mally, the curriculum prescribes what ploma and the GED must have included is to be taught, how the course is to be at least 40 hours of instruction in Eng- taught, with what materials, and when lish and U.S. history and government); and where. The curriculum must: or (1) Teach words and phrases in ordi- (3) An applicant has attended for a nary, everyday usage; period of one academic year (or the (2) Include the content of the Federal equivalent thereof according to the Citizenship Text series as the basis for standards of the learning institution), curriculum development (other texts a state recognized, accredited learning with similar content may be used in institution in the United States and addition to, but not in lieu of, the Fed- that institution certifies such attend- eral Citizenship Text series); ance (as long as the curriculum in- (3) Be designed to provide at least 60 cluded at least 40 hours of instruction hours of instruction per class level; in English and U.S. history and govern- (4) Be relevant and educationally ap- ment); or propriate for the program focus and the (4) An applicant has attended courses intended audience; and conducted by employers, social, com- (5) Be available for examination and munity, or private groups certified review by INS as requested. (retroactively, if necessary, as long as (v) The term developmentally disabled enrollment occurred on or after May 1, means the same as the term devel- 1987, and the curriculum included at opmental disability defined in section least 40 hours of instruction in English 102(5) of the Developmental Disabilities and U.S. history and government) by Assistance and Bill of Rights Act of the district director or the Director of 1987, Public Law 100–146. As a conven- the Outreach Program under ience to the public, that definition is § 245a.3(b)(5)(i)(D) of this chapter; or printed here in its entirety: (5) An applicant attests to having completed at least 40 hours of individ- The term developmental disability means a ual study in English and U.S. history severe, chronic disability of a person which: (1) Is attributable to a mental or physical and government and passes the pro- impairment or combination of mental and ficiency test for legalization, called the physical impairments; IRCA Test for Permanent Residency, (2) Is manifested before the person attains indicating that the applicant is able to age twenty-two; read and understand minimal func- (3) Is likely to continue indefinitely;

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(4) Results in substantial functional limi- for adjustment to temporary residence tations in three or more of the following status: areas of major life activity: (i) Self-care, (ii) (1) An alien (other than an alien who receptive and expressive language, (iii) entered as a nonimmigrant) who estab- learning, (iv) mobility, (v) self direction, (vi) capacity for independent living, and (vii) lishes that he or she entered the United economic self-sufficiency; and States prior to January 1, 1982, and (5) Reflects the person’s need for a com- who has thereafter resided continu- bination and sequence of special, inter- ously in the United States in an unlaw- disciplinary, or generic care, treatment, or ful status, and who has been physically other services which are of lifelong or ex- present in the United States from No- tended duration and are individually planned vember 6, 1986, until the date of filing and coordinated. the application. [52 FR 16208, May 1, 1987, as amended at 52 (2) An alien who establishes that he FR 43845, Nov. 17, 1987; 53 FR 9863, Mar. 28, or she entered the United States as a 1988; 53 FR 23382, June 22, 1988; 53 FR 43992, nonimmigrant prior to January 1, 1982, Oct. 31, 1988; 54 FR 29448, July 12, 1989; 56 FR and whose period of authorized admis- 31061, July 9, 1991] sion expired through the passage of time prior to January 1, 1982, and who § 245a.2 Application for temporary residence. has thereafter resided continuously in the United States in an unlawful sta- (a) Application period for temporary tus, and who has been physically residence. (1) An alien who has resided present in the United States from No- unlawfully in the United States since vember 6, 1986, until the date of filing January 1, 1982, who believes that he or the application. she meets the eligibility requirements (3) An alien who establishes that he of section 245A of the Act must make or she entered the United States as a application within the twelve month nonimmigrant prior to January 1, 1982, period beginning on May 5, 1987 and and whose unlawful status was known ending on May 4, 1988, except as pro- to the Government as of January 1, vided in the following paragraphs. 1982, and who has thereafter resided (2)(i) [Reserved] continuously in the United States in (ii) An alien who is the subject of an an unlawful status, and who has been Order to Show Cause issued under sec- physically present in the United States tion 242 of the Act during the period from November 6, 1986, until the date of beginning on May 5, 1987 and ending on filing the application. April 4, 1988 must file an application (4) An alien described in paragraphs for adjustment of status to that of a (b) (1) through (3) of this section who temporary resident prior to the thirty- was at any time a nonimmigrant ex- first day after the issuance of the Order change visitor (as defined in section to Show Cause. 101(a)(15)(J) of the Act), must establish (iii) An alien who is the subject of an that he or she was not subject to the Order to Show Cause issued under sec- two-year foreign residence require- tion 242 of the Act during the period ments of section 212(e) or has fulfilled beginning on April 5, 1988 and ending that requirement or has received a on May 4, 1988 must file an application waiver of such requirements and has for adjustment of status to that of a resided continuously in the United temporary resident not later than May States in unlawful status since Janu- 4, 1988. ary 1, 1982. (iv) An alien, described in paragraphs (5) An alien who establishes that he (a)(2)(i) through (iii) of this section, or she was granted voluntary depar- who fails to file an application for ad- ture, voluntary return, extended vol- justment of status to that of a tem- untary departure or placed in deferred porary resident under section 245A(a) action category by the Service prior to of the Act during the respective time January 1, 1982 and who has thereafter period(s), will be statutorily ineligible resided continuously in such status in for such adjustment of status. the United States and who has been (b) Eligibility. The following cat- physically present in the United States egories of aliens, who are otherwise eli- from November 6, 1986 until the date of gible to apply for legalization, may file filing the application.

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(6) An alien who establishes that he dependent family member was also in or she was paroled into the United A and G status when the principal A or States prior to January 1, 1982, and G alien’s status terminated or ceased whose parole status terminated prior to be recognized by the Department of to January 1, 1982, and who has there- State. after resided continuously in such sta- (12) A nomimmigrant who entered tus in the United States, and who has the United States for duration of sta- been physically present in the United tus (‘‘D/S’’) in one of the following States from November 6, 1986, until the classes, F, F–1, or F–2, who completed a date of filing the application. full course of study, including practical (7) An alien who establishes that he training and whose time period if any or she is a Cuban or Haitian Entrant to depart the United States after com- who was physically present in the pletion of study expired prior to Janu- United States prior to January 1, 1982, ary 1, 1982 and who has remained in the and who has thereafter resided con- United States in an unlawful status tinuously in the United States, and since that time. A dependent F–2 alien who has been physically present in the otherwise eligible who was admitted United States from November 6, 1986, into the United States with a specific until the date of filing the application, time period, as opposed to duration of without regard to whether such alien status, documented on Service Form I– has applied for adjustment of status 94, Arrival-Departure Record that ex- pursuant to section 202 of the Act. tended beyond January 1, 1982 is con- (8) An alien’s eligibility under the sidered eligible if the principal F–1 categories described in section alien is found eligible. 245(a)(2)(b) (1) through (7) and (9) (13) An alien who establishes that he through (15) shall not be affected by en- or she is a member of the class in the tries to the United States subsequent Silva-Levi lawsuit (No. 76–C–4268 (N.D. to January 1, 1982 that were not docu- ILL. March 22, 1977)); that is, an alien mented on Service Form I–94, Arrival- from an independent country of the Departure Record. Western Hemisphere who was present (9) An alien who would be otherwise in the United States prior to March 11, eligible for legalization and who was 1977, and was known by the Immigra- present in the United States in an un- tion and Naturalization Service (INS) lawful status prior to January 1, 1982, to have a priority date for the issuance and reentered the United States as a of an immigrant visa between July 1, nonimmigrant, such entry being docu- 1968 and December 31, 1976, inclusive, mented on Service Form I–94, Arrival- Departure Record, in order to return to and who was clearly eligible for an im- an unrelinquished unlawful residence. migrant visa. (10) An alien described in paragraph (14) An alien who filed an asylum ap- (b)(9) of this section must receive a plication prior to January 1, 1982 and waiver of the excludable charge whose application was subsequently de- 212(a)(19) as an alien who entered the nied or whose application has not yet United States by fraud. been decided is considered an alien in (11) A nonimmigrant who entered the an unlawful status known to the gov- United States for duration of status ernment. (‘‘D/S’’) is one of the following classes, (15) An alien, otherwise eligible who A, A–1, A–2, G, G–1, G–2, G–3 or G–4, departed the United States and was pa- whose qualifying employment termi- roled into the United States on or be- nated or who ceased to be recognized fore May 1, 1987 in order to return to an by the Department of State as being unrelinquished unlawful residence. entitled to such classification prior to (c) Ineligible aliens. (1) An alien who January 1, 1982, and who has thereafter has been convicted of a felony, or three continued to reside in the United or more misdemeanors. States in an unlawful status. An alien (2) An alien who has assisted in the who was a dependent family member persecution of any person or persons on and who may be otherwise eligible for account of race, religion, nationality, legalization may be considered a mem- membership in a particular social ber of this class of eligible aliens if the group or political opinion.

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(3) An alien excludable under the pro- ments for these three categories are visions of section 212(a) of the Act discussed below. whose grounds of excludability may (1) Proof of identity. Evidence to es- not be waived, pursuant to section tablish identity is listed below in de- 245A(d)(2)(B)(ii) of this Act. scending order of preference: (4) An alien who at any time was a (i) Passport; nonimmigrant exchange visitor who is (ii) Birth certificate; subject to the two-year foreign resi- (iii) Any national identity document dence requirement unless the require- from the alien’s country of origin bear- ment has been satisfied or waived pur- ing photo and fingerprint (e.g., a ‘‘ce- suant to the provisions of section 212(e) dula’’ or ‘‘cartilla’’); of the Act who has resided continu- (iv) Driver’s license or similar docu- ously in the United States in an unlaw- ment issued by a state if it contains a ful status since January 1, 1982. photo; (5) [Reserved] (v) Baptismal Record/Marriage Cer- (6) An alien who is the subject of an tificate; or Order to Show Cause issued under sec- (vi) Affidavits. tion 242 of the Act during the period (2) Assumed names—(i) General. In beginning on May 5, 1987 and ending on cases where an applicant claims to April 4, 1988 who does not file an appli- have met any of the eligibility criteria under an assumed name, the applicant cation for adjustment of status to that has the burden of proving that the ap- of temporary resident under section plicant was in fact the person who used 245A(a) of the Act prior to the thirty- that name. The applicant’s true iden- first day after issuance of the order. tity is established pursuant to the re- (7) An alien who is the subject of an quirements of paragraph (d)(1) of this Order to Show Cause issued under sec- section. The assumed name must ap- tion 242 of the Act during the period pear in the documentation provided by beginning on April 5, 1988 and ending the applicant to establish eligibility. on May 4, 1988 who does not file an ap- To meet the requirements of this para- plication for adjustment of status to graph documentation must be submit- that of a temporary resident under sec- ted to prove the common identity, i.e., tion 245A(a) of the Act prior to May 5, that the assumed name was in fact 1988. used by the applicant. (8) An alien who was paroled into the (ii) Proof of common identity. The most United States prior to January 1, 1982 persuasive evidence is a document is- and whose parole status terminated or sued in the assumed name which iden- expired subsequent to January 1, 1982, tifies the applicant by photograph, fin- except an alien who was granted ad- gerprint or detailed physical descrip- vance parole. tion. Other evidence which will be con- (d) Documentation. Evidence to sup- sidered are affidavit(s) by a person or port an alien’s eligibility for the legal- persons other than the applicant, made ization program shall include docu- under oath, which identify the affiant ments establishing proof of identity, by name and address, state the proof of residence, and proof of finan- affiant’s relationship to the applicant cial responsibility, as well as photo- and the basis of the affiant’s knowledge graphs, a completed fingerprint card of the applicant’s use of the assumed (Form FD–258), and a completed medi- name. Affidavits accompanied by a cal report of examination (Form I–693). photograph which has been identified All documentation submitted will be by the affiant as the individual known subject to Service verification. Appli- to affiant under the assumed name in cations submitted with unverifiable question will carry greater weight. documentation may be denied. Failure (3) Proof of residence. Evidence to es- by an applicant to authorize release to tablish proof of continuous residence in INS of information protected by the the United States during the requisite Privacy Act and/or related laws in period of time may consist of any com- order for INS to adjudicate a claim bination of the following: may result in denial of the benefit (i) Past employment records, which sought. Acceptable supporting docu- may consist of pay stubs, W–2 Forms,

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certification of the filing of Federal in- (A) Identifies applicant by name; come tax returns on IRS Form 6166, (B) Is signed by an official (whose state verification of the filing of state title is shown); income tax returns, letters from em- (C) Shows inclusive dates of member- ployer(s) or, if the applicant has been ship; in business for himself or herself, let- (D) States the address where appli- ters from banks and other firms with cant resided during membership period; whom he or she has done business. In (E) Includes the seal of the organiza- all of the above, the name of the alien tion impressed on the letter or the let- and the name of the employer or other terhead of the organization, if the or- interested organization must appear on ganization has letterhead stationery; the form or letter, as well as relevant (F) Establishes how the author dates. Letters from employers should knows the applicant; and be on employer letterhead stationery, (G) Establishes the origin of the in- if the employer has such stationery, formation being attested to. and must include: (vi) Additional documents to support (A) Alien’s address at the time of em- the applicant’s claim may include: ployment; (A) Money order receipts for money (B) Exact period of employment; sent in or out of the country; (C) Periods of layoff; (B) Passport entries; (D) Duties with the company; (C) Birth certificates of children born (E) Whether or not the information in the United States; was taken from official company (D) Bank books with dated trans- records; and actions; (F) Where records are located and (E) Letters or correspondence be- whether the Service may have access tween applicant and another person or to the records. organization; If the records are unavailable, an affi- (F) Social Security card; davit form-letter stating that the (G) Selective Service card; alien’s employment records are un- (H) Automobile license receipts, available and why such records are un- title, vehicle registration, etc.; available may be accepted in lieu of (I) Deeds, mortgages, contracts to (3)(i)(E) and (3)(i)(F) of this paragraph. which applicant has been a party; This affidavit form-letter shall be (J) Tax receipts; signed, attested to by the employer (K) Insurance policies, receipts, or under penalty of perjury, and shall letters; and state the employer’s willingness to (L) Any other relevant document. come forward and give testimony if re- (4) Proof of financial responsibility. An quested. applicant for adjustment of status (ii) Utility bills (gas, electric, phone, under this part is subject to the provi- etc.), receipts, or letters from compa- sions of section 212(a)(15) of the Act re- nies showing the dates during which lating to excludability of aliens likely the applicant received service are ac- to become public charges. Generally, ceptable documentation. the evidence of employment submitted (iii) School records (letters, report under paragraph (d)(3)(i) of this section cards, etc.) from the schools that the will serve to demonstrate the alien’s fi- applicant or their children have at- nancial responsibility during the docu- tended in the United States must show mented period(s) of employment. If the name of school and periods of school alien’s period(s) of residence in the attendance. United States include significant gaps (iv) Hospital or medical records in employment or if there is reason to showing treatment or hospitalization believe that the alien may have re- of the applicant or his or her children ceived public assistance while em- must show the name of the medical fa- ployed, the alien may be required to cility or physician and the date(s) of provide proof that he or she has not re- the treatment or hospitalization. ceived public cash assistance. An appli- (v) Attestations by churches, unions, cant for residence who is determined or other organizations to the appli- likely to become a public charge and is cant’s residence by letter which: unable to overcome this determination

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after application of the special rule fice, the district director may, at his or will be denied adjustment. The burden her discretion: of proof to demonstrate the inapplica- (i) Require the applicant to file the bility of this provision of law lies with application in person; or the applicant who may provide: (ii) Require the applicant to file the (i) Evidence of a history of employ- application by mail; or ment (i.e., employment letter, W–2 (iii) Permit the filing of applications Forms, income tax returns, etc.); either by mail or in person. (ii) Evidence that he/she is self-sup- The applicant must appear for a per- porting (i.e., bank statements, stocks, sonal interview at the legalization of- other assets, etc.); or fice as scheduled. If the applicant is 14 (iii) Form I–134, Affidavit of Support, years of age or older, the application completed by a spouse in behalf of the must be accompanied by a completed applicant and/or children of the appli- Form FD–258 (Applicant Card). cant or a parent in behalf of children (2) At the time of the interview, which guarantees complete or partial wherever possible, original documents financial support. Acceptance of the af- must be submitted except the follow- fidavit of support shall be extended to ing: Official government records; em- other family members where family ployment or employment-related circumstances warrant. records maintained by employers, (5) Burden of proof. An alien applying unions, or collective bargaining organi- for adjustment of status under this zations; medical records; school records part has the burden of proving by a maintained by a school or school preponderance of the evidence that he board; or other records maintained by or she has resided in the United States a party other than the applicant. Cop- for the requisite periods, is admissible ies of records maintained by parties to the United States under the provi- other than the applicant which are sub- sions of section 245a of the Act, and is mitted in evidence must be certified as otherwise eligible for adjustment of true and correct by such parties and status under this section. The infer- must bear their seal or signature or the ence to be drawn from the documenta- signature and title of persons author- tion provided shall depend on the ex- ized to act in their behalf. If at the tent of the documentation, its credibil- time of the interview the return of ity and amenability to verification as original documents is desired by the set forth in paragraph (d) of this sec- applicant, they must be accompanied tion. by notarized copies or copies certified (6) Evidence. The sufficiency of all true and correct by a qualified des- evidence produced by the applicant will ignated entity or by the alien’s rep- be judged according to its probative resentative in the format prescribed in value and credibility. To meet his or § 204.2(j)(1) or (2) of this chapter. At the her burden of proof, an applicant must discretion of the district director, provide evidence of eligibility apart original documents, even if accom- from his or her own testimony. In judg- panied by certified copies, may be tem- ing the probative value and credibility porarily retained for forensic examina- of the evidence submitted, greater tion by the Document Analysis Unit at weight will be given to the submission the Regional Processing Facility hav- of original documentation. ing jurisdiction over the legalization (e) Filing of application. (1) The appli- office to which the documents were cation must be filed on Form I–687 at submitted. an office of a designated entity or at a (3) A separate application (I–687) Service Legalization Office within the must be filed by each eligible appli- jurisdiction of the District wherein the cant. All fees required by § 103.7(b)(1) of applicant resides. If the application is this chapter must be submitted in the filed with a designated entity, the alien exact amount in the form of a money must have consented to having the des- order, cashier’s check, or certified ignated entity forward the application bank check, made payable to the Im- to the legalization office. In the case of migration and Naturalization Service. applications filed at a legalization of- No personal checks or currency will be

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accepted. Fees will not be waived or re- (2) An alien who has been absent funded under any circumstances. from the United States in accordance (f) Filing date of application. The date with the Service’s advance parole pro- the alien submits a completed applica- cedures shall not be considered as hav- tion to a Service Legalization Office or ing interrupted his or her continuous designated entity shall be considered residence as required at the time of fil- the filing date of the application, pro- ing an application under this section. vided that in the case of an application (i) Medical examination. An applicant filed at a designated entity the alien under this part shall be required to has consented to having the designated submit to an examination by a des- entity forward the application to the ignated civil surgeon at no expense to Service Legalization Office having ju- the government. The designated civil risdiction over the location of the surgeon shall report on the findings of alien’s residence. The designated enti- the mental and physical condition of ties are required to forward completed the applicant and the determination of applications to the appropriate Service the alien’s immunization status. Re- Legalization Office within sixty days of sults of the medical examinaton must receipt. be presented to the Service at the time (g) Selective Service registration. At the of interview and shall be incorporated time of filing an application under this into the record. Any applicant certified section, male applicants over the age under paragraphs (1), (2), (3), (4), or (5) of 17 and under the age of 26 are re- of section 212(a) of the Act may appeal quired to be registered under the Mili- to a Board of Medical Officers of the tary Selective Service Act. An appli- U.S. Public Health Service as provided cant shall present evidence that he has in section 234 of the Act and part 235 of previously registered under that Act in this chapter. the form of a letter of acknowledge- (j) Interview. Each applicant, regard- ment from the Selective Service Sys- less of age, must appear at the appro- tem, or such alien shall present a com- priate Service Office and must be pleted and signed Form SSS–1 at the fingerprinted for the purpose of issu- time of filing Form I–687 with the Im- ance of an employment authorization migration and Naturalization Service document and Form I–688. Each appli- or a designated entity. Form SSS–1 cant shall be interviewed by an immi- will be forwarded to the Selective Serv- gration officer, except that the inter- ice System by the Service. view may be waived for a child under (h) Continuous residence. (1) For the 14, or when it is impractical because of purpose of this Act, an applicant for the health or advanced age of the appli- temporary resident status shall be re- cant. garded as having resided continuously (k) Applicability of exclusion grounds— in the United States if, at the time of (1) Grounds of exclusion not to be applied. filing of the application: The following paragraphs of section (i) No single absence from the United 212(a) of the Act shall not apply to ap- States has exceeded forty-five (45) plicants for temporary resident status: days, and the aggregate of all absences (14) Workers entering without Labor has not exceeded one hundred and Certification; (20) immigrants not in eighty (180) days between January 1, possession of a valid entry document; 1982 through the date the application (21) visas issued without compliance for temporary resident status is filed, with section 203; (25) illiterates; and unless the alien can establish that due (32) graduates of non-accredited medi- to emergent reasons, his or her return cal schools. to the United States could not be ac- (2) Waiver of grounds of exclusion. Ex- complished within the time period al- cept as provided in paragraph (k)(3) of lowed; this section, the Attorney General may (ii) The alien was maintaining a resi- waive any other provision of section dence in the United States; and 212(a) of the Act only in the case of in- (iii) The alien’s departure from the dividual aliens for humanitarian pur- United States was not based on an poses, to assure family unity, or when order of deportation. the granting of such a waiver is in the

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public interest. If an alien is exclud- (ii) Paragraph (23) (narcotics) except able on grounds which may be waived for a single offense of simple possession as set forth in this paragraph, he or she of thirty grams or less of marijuana; shall be advised of the procedures for (iii) Paragraphs (27) (prejudicial to applying for a waiver of grounds of ex- the public interest), (28) (communist), cludability on Form I–690. When an ap- and (29) (subversive); plication for waiver of grounds of ex- (iv) Paragraph (33) (participated in cludability is filed jointly with an ap- Nazi persecution). plication for temporary residence (4) Special rule for determination of under this section, it shall be accepted public charge. An alien who has a con- for processing at the legalization of- sistent employment history which fice. If an application for waiver of shows the ability to support himself or grounds of excludability is submitted herself even though his or her income after the alien’s preliminary interview may be below the poverty level, may be at the legalization office, it shall be admissible. The alien’s employment forwarded to the appropriate Regional history need not be continuous in that Processing Facility. All applications it is uninterrupted. It should be contin- for waivers of grounds of excludability uous in the sense that the alien shall must be accompanied by the correct fee be regularly attached to the workforce, in the exact amount. All fees for appli- has an income over a substantial pe- cations filed in the United States must riod of the applicable time, and has be in the form of a money order, cash- demonstrated the capacity to exist on ier’s check, or bank check. No personal his or her income without recourse to checks or currency will be accepted. public cash assistance. This regulation Fees will not be waived or refunded is prospective in that the Service shall under any circumstances. An applica- determine, based on the alien’s history, tion for waiver of grounds of exclud- whether he or she is likely to become a ability under this part shall be ap- public charge. Past acceptance of pub- proved or denied by the director of the lic cash assistance within a history of Regional Processing Facility in whose consistent employment will enter into jurisdiction the applicant’s application this decision. The weight given in con- for adjustment of status was filed ex- sidering applicability of the public cept that in cases involving clear stat- charge provisions will depend on many utory ineligibility or admitted fraud, factors, but the length of time an ap- such application may be denied by the plicant has received public cash assist- district director in whose jurisdiction ance will constitute a significant fac- the application is filed, and in cases re- tor. turned to a Service Legalization Office (5) Public assistance and criminal his- for re-interview, such application may tory verification. Declarations by an ap- be approved at the discretion of the plicant that he or she has not been the district director. The applicant shall be recipient of public cash assistance and/ notified of the decision and, if the ap- or has not had a criminal record are plication is denied, of the reason there- subject to a verification of facts by the for. Appeal from an adverse decision Service. The applicant must agree to under this part may be taken by the fully cooperate in the verification applicant on Form I–694 within 30 days process. Failure to assist the Service in after the service of the notice only to verifying information necessary for the the Service’s Administrative Appeals adjudication of the application may re- Unit pursuant to the provisions of sult in a denial of the application. § 103.3(a) of this chapter. (l) Continous physical presence since (3) Grounds of exclusion that may not November 6, 1986. (1) An alien applying be waived. Notwithstanding any other for adjustment to temporary resident provision of the Act, the following pro- status must establish that he or she visions of section 212(a) may not be has been continuously physically waived by the Attorney General under present in the United States since No- paragraph (k)(2) of this section: vember 6, 1986. Aliens who were outside (i) Paragraphs (9) and (10) (crimi- of the United States on the date of en- nals); actment or departed the United States

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after enactment may apply for legal- absence from the United States was ization if they reentered prior to May due merely to a brief temporary trip 1, 1987, and meet the continuous resi- abroad due to emergent or extenuating dence requirements and are otherwise circumstances beyond the alien’s con- eligible for legalization. trol. (2) A brief, casual and innocent ab- (n)(1) Employment and travel author- sence means a departure authorized by ization; general. Authorization for em- the Service (advance parole) subse- ployment and travel abroad for tem- quent to May 1, 1987 of not more than porary resident status applicants under thirty (30) days for legitimate emer- section 245A(a) of the Act may only be gency or humanitarian purposes unless granted by a Service Office. INS dis- a further period of authorized depar- trict directors will determine the Serv- ture has been granted in the discretion of the district director or a departure ice location for the completion of proc- was beyond the alien’s control. essing of travel documentation. In the (m) Departure. (1) During the time pe- case of an application which has been riod from the date that an alien’s ap- filed with a designated entity, employ- plication establishing prima facie eligi- ment authorization may only be grant- bility for temporary resident status is ed by the Service after the application reviewed at a Service Legalization Of- has been properly received at the Serv- fice and the date status as a temporary ice Office. resident is granted, the alien applicant (2) Employment authorization prior to can only be readmitted to the United the granting of temporary resident status. States provided his or her departure (i) Permission to travel abroad and ac- was authorized under the Service’s ad- cept employment may be granted to vance parole provisions contained in the applicant after an interview has § 212.5(e) of this chapter. been conducted in connection with an (2) An alien whose application for application establishing prima facie temporary resident status has been ap- eligibility for temporary resident sta- proved may be admitted to the United tus. Permission to travel abroad may States upon return as a returning tem- be granted in emergent circumstances porary resident provided he or she: in accordance with the Service’s ad- (i) Is not under deportation proceed- vance parole provisions contained in ings, such proceedings having been in- § 212.5(e) of this chapter after an inter- stituted subsequent to the approval of view has been conducted in connection temporary resident status. A temporary resident alien will not be con- with an application establishing prima sidered deported if that alien departs facie eligiblity for temporary resident the United States while under an out- status. standing order of deportation issued (ii) If an interview appointment can- prior to the approval of temporary resi- not be scheduled within 30 days from dent status; the date an application is filed at a (ii) Has not been absent from the Service office, authorization to accept United States more than thirty (30) employment will be granted, valid days on the date application for admis- until the scheduled appointment date. sion is made; Employment authorization, both prior (iii) Has not been absent from the and subsequent to an interview, will be United States for an aggregate period restricted to increments of 1 year, of more than 90 days since the date the pending final determination on the ap- alien was granted lawful temporary plication for temporary resident sta- resident status; tus. If a final determination has not (iv) Presents Form I–688; been made prior to the expiration date (v) Presents himself or herself for in- on the Employment Authorization spection; and Document (Form I–766, Form I–688A or (vi) Is otherwise admissible. Form I–688B), that date may be ex- (3) The periods of time in paragraph tended upon return of the employment (m)(2)(ii) and (m)(2)(iii) of this section authorization document by the appli- may be waived at the discretion of the Attorney General in cases where the cant to the appropriate Service office.

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(3) Employment and travel authoriza- open a proceeding or reconsider a deci- tion upon grant of temporary resident sta- sion shall not be considered under this tus. Upon the granting of an applica- part. tion for adjustment to temporary resi- (r) Certifications. The Regional Proc- dent status, the service center will for- essing Facility director may, in ac- ward a notice of approval to the appli- cordance with § 103.4 of this chapter, cant at his or her last known address certify a decision to the Associate and to his or her qualified designated Commissioner, Examinations (Admin- entity or representative. The applicant istrative Appeals Unit) when the case may appear at any Service office and, involves an unusually complex or novel upon surrender of the previously issued question of law or fact. The party af- Employment Authorization Document, fected shall be given notice of such cer- will be issued Form I–688, Temporary tification and of the right to submit a Resident Card, authorizing employ- brief within thirty (30) days from serv- ment and travel abroad. ice of the notice. (4) Revocation of employment author- (s) Date of adjustment to temporary res- ization upon denial of temporary resident idence. The status of an alien whose ap- status. Upon denial of an application plication for temporary resident status for adjustment to temporary resident is approved shall be adjusted to that of status the alien will be notified that if a lawful temporary resident as of the a timely appeal is not submitted, em- date indicated on the application fee ployment authorization shall be auto- receipt issued at Service Legalization matically revoked on the final day of Office. the appeal period. (t) Limitation on access to information (o) Decision. The applicant shall be and confidentiality. (1) No person other notified in writing of the decision, and, than a sworn officer or employee of the if the application is denied, of the rea- Justice Department or bureau of agen- son therefor. An appeal from an ad- cy thereof, will be permitted to exam- verse decision under this part may be ine individual applications, except em- taken by the applicant on Form I–694. ployees of designated entities where (p) Appeal process. An adverse decision under this part may be appealed to applications are filed with the same the Associate Commissioner, Examina- designated entity. For purposes of this tions (Administrative Appeals Unit). part, any individual employed under Any appeal with the required fee shall contract by the Service to work in con- be filed with the Regional Processing nection with the legalization program Facility within thirty (30) days after shall be considered an ‘‘employee of service of the notice of denial in ac- the Justice Department or bureau or cordance with the procedures of agency thereof.’’ § 103.3(a) of this chapter. An appeal re- (2) Files and records prepared by des- ceived after the thirty (30) day period ignated entites under this section are has tolled will not be accepted. The confidential. The Attorney General and thirty (30) day period includes any time the Service shall not have access to required for service or receipt by mail. these files and records without the con- (q) Motions. The Regional Processing sent of the alien. Facility director may sua sponte reopen (3) No information furnished pursu- and reconsider any adverse decision. ant to an application for legalization When an appeal to the Associate Com- under this section shall be used for any missioner, Examinations (Administra- purpose except: (i) To make a deter- tive Appeals Unit) has been filed, the mination on the application; or, (ii) for INS director of the Regional Process- the enforcement of the provisions en- ing Facility may issue a new decision compassed in section 245A(c)(6) of the that will grant the benefit which has Act, except as provided in paragraph been requested. The director’s new de- (t)(4) of this section. cision must be served on the appealing (4) If a determination is made by the party within 45 days of receipt of any Service that the alien has, in connec- briefs and/or new evidence, or upon ex- tion with his or her application, en- piration of the time allowed for the gaged in fraud or willful misrepresen- submission of any briefs. Motions to re- tation or concealment of a material

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fact, knowingly provided a false writ- if any. The alien must be given an oping or document in making his or her portunity to offer evidence in opposi- application, knowingly made a false tion to the grounds alleged for termi- statement or representation, or en- nation of his or her status. Evidence in gaged in any other activity prohibited opposition must be submitted within by section 245A(c)(6) of the Act, the thirty (30) days after the service of the Service shall refer the matter to the Notice of Intent to Terminate. If the United States Attorney for prosecution alien’s status is terminated, the direc- of the alien or of any person who cre- tor of the regional processing facility ated or supplied a false writing or doc- shall notify the alien of the decision ument for use in an application for ad- and the reasons for the termination, justment of status under this part. and further notify the alien that any (5) Information obtained in a granted Service Form I–94, Arrival-Departure legalization application and contained Record or other official Service docu- in the applicant’s file is subject to sub- ment issued to the alien authorizing sequent review in reference to future employment and/or travel abroad, or benefits applied for (including petitions any Form I–688, Temporary Resident for naturalization and permanent resi- Card previously issued to the alien will dent status for relatives). be declared void by the director of the (u) Termination of temporary resident regional processing facility within staus—(1) Termination of temporary resi- thirty (30) days if no appeal of the ter- dent status; General. The status of an mination decision is filed within that alien lawfully admitted for temporary period. The alien may appeal the deci- residence under section 245A(a)(1) of sion to the Associate Commissioner, the Act may be terminated at any time Examinations (Administrative Appeals in accordance with section 245A(b)(2) of Unit). Any appeal with the required fee the Act. It is not necessary that a final shall be filed with the regional process- order of deportation be entered in order ing facility within thirty (30) days to terminate temporary resident sta- after the service of the notice of termi- tus. The temporary resident status nation. If no appeal is filed within that may be terminated upon the occurence period, the I–94, I–688 or other official of any of the following: Service document shall be deemed (i) It is determined that the alien was void, and must be surrendered without ineligible for temporary residence delay to an immigration officer or to under section 245A of this Act; the issuing office of the Service. (ii) The alien commits an act which (ii) Termination upon entry of final renders him or her inadmissible as an order of deportation or exclusion. (A) The immigrant, unless a waiver is secured Service may institute deportation or pursuant to § 245a.2(k)(2). exclusion proceedings against a tem- (iii) The alien is convicted of any fel- porary resident alien without regard to ony, or three or more misdemeanors; the procedures set forth in paragraph (iv) The alien fails to file for adjust- (u)(2)(i) of this section: ment of status from temporary resi- (1) If the ground for deportation dent to permanent resident on Form I– arises under section 241(a)(2)(A)(iii) of 698 within forty–three (43) months of the Act (8 U.S.C. 1251(a)(2)(A)(iii)); the date he/she was granted status as a (2) If the ground for deportation temporary resident under § 245a.1 of arises after the acquisition of tem- this part. porary resident status, and the basis of (2) Procedure—(i) Termination by the such ground of deportation is not Service. Except as provided in para- waivable pursuant to section graph (u)(2)(ii) of this section, termi- 245A(d)(2)(B)(ii) of the Act (8 U.S.C. nation of an alien’s temporary resident 1255a(d)(2)(B)(ii)); or status under paragraph (u)(1) of this (3) If the ground for exclusion arises section will be made before instituting after the acquisition of temporary resi- deportation proceedings against a tem- dent status and is not waivable pursu- porary resident alien and only on no- ant to section 245A(d)(2)(B)(ii) of the tice sent to the alien by certified mail Act (8 U.S.C. 1255a(d)(2)(B)(ii)). directed to his or her last known ad- (B) In such cases, the entry of a final dress, and to his or her representative, order of deportation or exclusion will

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automatically terminate an alien’s § 245a.3 Application for adjustment temporary resident status acquired from temporary to permanent resi- under section 245A(a)(1) of the Act. dent status. (3) Termination not construed as rescis- (a) Application period for permanent sion under section 246. For the purposes residence. (1) An alien may submit an of this part the phrase termination of application for lawful permanent resi- status of an alien granted lawful tem- dent status, with fee, immediately sub- porary residence under section 245A(a) sequent to the granting of lawful tem- of the Act shall not be construed to ne- porary resident status. Any application cessitate a rescission of status as de- received prior to the alien’s becoming scribed in section 246 of the Act, and eligible for adjustment to permanent the proceedings required by the regula- resident status will be administra- tions issued thereunder shall not apply. tively processed and held by the INS, (4) Return to unlawful status after ter- but will not be considered filed until mination. Termination of the status of the beginning of the nineteenth month any alien previously adjusted to lawful after the date the alien was granted temporary residence under section temporary resident status as defined in 245A(a) of the Act shall act to return § 245a.2(s) of this chapter. such alien to the unlawful status held (2) No application shall be denied for prior to the adjustment, and render failure to timely apply before the end him or her amenable to exclusion or of 43 months from the date of actual deportation proceedings under section approval of the temporary resident ap- 236 or 242 of the Act, as appropriate. plication. (v) Ineligibility for immigration benefits. (3) The Service Center Director shall An alien whose status is adjusted to sua sponte reopen and reconsider with- that of a lawful temporary resident out fee any application which was pre- under section 245A of the Act is not en- viously denied for late filing. No addi- titled to submit a petition pursuant to tional fee will be required for those ap- section 203(a)(2) or to any other benefit plications which are filed during the or consideration accorded under the twelve month extension period but Act to aliens lawfuly admitted for per- prior to July 9, 1991. manent residence. (b) Eligibility. Any alien who has been lawfully admitted for temporary resi- (w) Declaration of Intending Citizen. dent status under section 245A(a) of the An alien who has been granted the sta- Act, such status not having been ter- tus of temporary resident under sec- minated, may apply for adjustment of tion 245A(a)(1) of this Act may assert a status of that of an alien lawfully ad- claim of discrimination on the basis of mitted for permanent residence if the citizenship status under section 274B of alien: the Act only if he or she has previously (1) Applies for such adjustment any- filed Form I–772 (Declaration of Intend- time subsequent to the granting of ing Citizen) after being granted such temporary resident status but on or be- status. The Declaration of Intending fore the end of 43 months from the date Citizen is not required as a basis for fil- of actual approval of the termporary ing a petition for naturalization; nor resident application. The alien need shall it be regarded as a right to United not be physically present in the United States citizenship; nor shall it be re- States at the time of application; how- garded as evidence of a person’s status ever, the alien must establish continu- as a resident. ous residence in the United States in [52 FR 16208, May 1, 1987, as amended at 52 accordance with the provisions of para- FR 43845, 43846, Nov. 17, 1987; 53 FR 23382, graph (b)(2) of this section and must be June 22, 1988; 54 FR 29449, July 12, 1989; 56 FR physically present in the United States 31061, July 9, 1991; 58 45236, Aug. 27, 1993; 60 at the time of interview and/or process- FR 21040, May 1, 1995; 60 FR 21975, May 4, ing for permanent resident status 1995; 61 FR 46536, Sept. 4, 1996] (ADIT processing);

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(2) Establishes continuous residence (ii) The requirements of paragraph in the United States since the date the (b)(4)(i) of this section must be met by alien was granted such temporary resi- each applicant. However, these require- dence status. An alien shall be re- ments shall be waived without formal garded as having resided continuously application for persons who, as of the in the United States for the purpose of date of application or the date of eligi- this part if, at the time of applying for bility for permanent residence under adjustment from temporary to perma- this part, whichever date is later, are: nent resident status, or as of the date (A) Under 16 years of age; or of eligibility for permanent residence, (B) 65 years of age or older; or whichever is later, no single absence (C) Over 50 years of age who have re- from the United States has exceeded sided in the United States for at least thirty (30) days, and the aggregate of 20 years and submit evidence establish- all absences has not exceeded ninety ing the 20-year qualification require- (90) days between the date of approval ment. Such evidence must be submit- of the temporary resident application, ted pursuant to the requirements con- Form I-687 (not the ‘‘roll-back’’ date) tained in Section 245a.2(d)(3) of this and the date the alien applied or be- chapter; or came eligible for permanent resident (D) Developmentally disabled as de- status, whichever is later, unless the fined at § 245a.1(v) of this chapter. Such alien can establish that due to emer- persons must submit medical evidence gent reasons or circumstances beyond concerning their developmental dis- his or her control, the return to the ability; or United States could not be accom- (E) Physically unable to comply. The plished within the time period(s) al- physical disability must be of a nature lowed. A single absence from the Unit- which renders the applicant unable to ed States of more than 30 days, and ag- acquire the four language skills of gregate absences of more than 90 days speaking, understanding, reading, and during the period for which continuous writing English in accordance with the residence is required for adjustment to criteria and precedence established in permanent residence, shall break the OI 312.1(a)(2)(iii) (Interpretations). continuity of such residence, unless the Such persons must submit medical evi- temporary resident can establish to the dence concerning their physical dis- satisfaction of the district director or ability. the Director of the Regional Processing (iii) (A) Literacy and basic citizen- Facility that he or she did not, in fact, ship skills may be demonstrated for abandon his or her residence in the purposes of complying with paragraph United States during such period; (b)(4)(i)(A) of this section by: (3) Is admissible to the United States (1) Speaking and understanding Eng- as an immigrant, except as otherwise lish during the course of the interview provided in paragraph (g) of this sec- for permanent resident status. An ap- tion; and has not been convicted of any plicant’s ability to read and write Eng- felony, or three or more misdemeanors; lish shall be tested by excerpts from and one or more parts of the Federal Text- (4)(i)(A) Can demonstrate that the books on Citizenship at the elementary alien meets the requirements of sec- literacy level. The test of an appli- tion 312 of the Immigration and Na- cant’s knowledge and understanding of tionality Act, as amended (relating to the history and form of government of minimal understanding of ordinary the United States shall be given in the English and a knowledge and under- English language. The scope of the standing of the history and govern- testing shall be limited to subject mat- ment of the United States); or ter covered in the revised (1987) Federal (B) Is satisfactorily pursuing a course Textbooks on Citizenship or other ap- of study recognized by the Attorney proved training material. The test General to achieve such an understand- questions shall be selected from a list ing of English and such a knowledge of 100 standardized questions developed and understanding of the history and by the Service. In choosing the subject government of the United States. matter and in phrasing questions, due

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consideration shall be given to the ex- the form of a ‘‘Certificate of Satisfac- tent of the applicant’s education, back- tory Pursuit’’ (Form I–699) issued by ground, age, length of residence in the the designated school or program offi- United States, opportunities available cial attesting to the applicant’s satis- and efforts made to acquire the req- factory pursuit of the course of study uisite knowledge, and any other ele- as defined at § 245a.1(s)(1) and (4) of this ments or factors relevant to an ap- chapter; or a high school diploma or praisal of the adequacy of his or her general educational development di- knowledge and understanding; or ploma (GED) under § 245a.1(s)(2) of this (2) By passing a standardized section chapter; or certification on letterhead 312 test (effective retroactively as of stationery from a state recognized, ac- November 7, 1988) such test being given credited learning institution under in the English language by the Legal- § 245a.1(s)(3) of this chapter; or evidence ization Assistance Board with the Edu- of having passed the IRCA Test for Per- cational Testing Service (ETS) or the manent Residency under § 245a.1(s)(5) of California State Department of Edu- this chapter. Such applicants shall not cation with the Comprehensive Adult then be required to demonstrate that Student Assessment System (CASAS). they meet the requirements of The scope of the test is based on the § 245a.3(b)(4)(i)(A) of this chapter in 1987 edition of the Federal Textbooks order to be granted lawful permanent on Citizenship series written at the ele- residence provided they are otherwise mentary literacy level. An applicant eligible. Evidence of ‘‘Satisfactory Pur- may evidence passing of the standard- suit’’ may be submitted at the time of ized section 312 test by submitting the filing Form I–698, subsequent to filing approved testing organization’s stand- the application but prior to the inter- ard notice of passing test results at the view, or at the time of the interview time of filing Form I–698, subsequent to (the applicant’s name and A90M num- filing the application but prior to the ber must appear on any such evidence interview, or at the time of the inter- submitted). An applicant need not nec- view. The test results may be independ- essarily be enrolled in a recognized ently verified by INS, if necessary. course of study at the time of applica- (B) An applicant who fails to pass the tion for permanent residency. English literacy and/or the U.S. history (v) Enrollment in a recognized course and government tests at the time of of study as defined in § 245a.3(b)(5) and the interview, shall be afforded a sec- issuance of a ‘‘Certificate of Satisfac- ond opportunity after six (6) months tory Pursuit’’ must occur subsequent (or earlier, at the request of the appli- to May 1, 1987. cant) to pass the tests, submit evidence (5) A course of study in the English of passing an INS approved section 312 language and in the history and gov- standardized examination or submit ernment of the United States shall sat- evidence of fulfillment of any one of isfy the requirement of paragraph the ‘‘satisfactorily pursuing’’ alter- (b)(4)(i) of this section if the course natives listed at § 245a.1(s) of this chap- materials for such instruction include ter. The second interview shall be con- textbooks published under the author- ducted prior to the denial of the appli- ity of section 346 of the Act, and it is cation for permanent residence and (i) Sponsored or conducted by: (A) An may be based solely on the failure to established public or private institu- pass the basic citizenship skills re- tion of learning recognized as such by a quirements. An applicant whose period qualified state certifying agency; (B) of eligibility expires prior to the end of An institution of learning approved to the six-month re-test period, shall still issue Forms I–20 in accordance with be accorded the entire six months with- § 214.3 of this chapter; (C) A qualified in which to be re-tested. designated entity within the meaning (iv) To satisfy the English language of section 245A(c)(2) of the Act, in good- and basic citizenship skills require- standing with the Service; or (D) Is cer- ments under the ‘‘satisfactorily pursu- tified by the district director in whose ing’’ standard as defined at § 245a.1(s) of jurisdiction the program is conducted, this chapter the applicant must submit or is certified by the Director of the evidence of such satisfactory pursuit in Outreach Program nationally.

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(ii) A program seeking certification (6) Notice of participation. All courses as a course of study recognized by the of study recognized under Attorney General under paragraph § 245a.3(b)(5)(i)(A) through (C) of this (b)(5)(i)(D) of this section shall file chapter which are already conducting Form I–803, Petition for Attorney Gen- or will conduct English and U.S. his- eral Recognition to Provide Course of tory and government courses for tem- Study for Legalization: Phase II, with porary residents must submit a Notice the Director of Outreach for national of Participation to the district director level programs or with the district di- in whose jurisdiction the program is rector having jurisdiction over the area conducted. Acceptance of ‘‘Certificates in which the school or program is lo- of Satisfactory Pursuit’’ (Form I–699) cated. In the case of local programs, a shall be delayed until such time as the separate petition must be filed with course provider submits the Notice of each district director when a parent or- Participation, which notice shall be in ganization has schools or programs in the form of a letter typed on the letter- more than one INS district. A petition head of the course provider (if avail- must identify by name and address able) and include the following: those schools or programs included in (i) The name(s) of the school(s)/pro- the petition. No fee shall be required to gram(s). file Form I–803; (ii) The complete addresses and tele- (A) The Director of Outreach and the phone numbers of sites where courses district directors may approve a peti- will be offered, and class schedules. (iii) The complete names of persons tion where they have determined that who are in charge of conducting Eng- (1) a need exists for a course of study in lish and U.S. history and government addition to those already certified courses of study. under § 245a.3(b)(5)(i) (A), (B), or (C); (iv) A statement that the course of and/or (2) of this chapter the petitioner study will issue ‘‘Certificates of Satis- has historically provided educational factory Pursuit’’ to temporary resident services in English and U.S. history enrollees according to INS regulations. and government but is not already cer- (v) A list of designated officials of tified under § 245a.3(b)(5)(i)(A), (B), or the recognized course of study author- (C); and ( ) of this chapter the peti- 3 ized to sign ‘‘Certificates of Satisfac- tioner is otherwise qualified to provide tory Pursuit’’, and samples of their such course of study; original signatures. (B) Upon approval of the petition the (vi) A statement that if a course pro- Director of Outreach and district direc- vider charges a fee to temporary resi- tors shall issue a Certificate of Attor- dent enrollees, the fee will not be ex- ney General Recognition on Form I–804 cessive. to the petitioner. If the petition is de- (vii) Evidence of recognition under 8 nied, the petitioner shall be notified in CFR 245a.3(b)(5)(i)(A), (B), or (C) (e.g., writing of the decision therefor. No ap- certification from a qualified state cer- peal shall lie from a denial of Form I– tifying agency; evidence of INS ap- 803, except that in such case where the proval for attendance by nonimmigrant petitions of a local, cross-district pro- students, such as the school code num- gram are approved in one district and ber, or the INS identification number denied in another within the same from the QDE cooperative agreement). State, the petitioner may request re- The course provider shall notify the view of the denied petition by the ap- district director, in writing, of any propriate Regional Commissioner. The changes to the information contained Regional Commissioner shall then in the Notice of Participation subse- make a determination in this case; quent to its submission within ten (10) (C) Each district director shall com- days of such change. pile and maintain lists of programs ap- A Certificate of Attorney General Rec- proved under paragraph (b)(5)(i)(D) of ognition to Provide Course of Study for this section within his or her jurisdic- Legalization (Phase II), Form I–804, tion. The Director of Outreach shall shall be issued to course providers who compile and maintain lists of approved have submitted a Notice of Participa- national level programs. tion in accordance with the provisions

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of this section by the distict director. (v) Assessment records; A Notice of Participation deficient in (vi) Photocopy of signed ‘‘Certificate any way shall be returned to the course of Satisfactory Pursuit’’ issued to the provider to correct the deficiency. student. Upon the satisfaction of the district di- (10) Issuance of ‘‘Certificate of Satisfac- rector that the deficiency has been cor- tory Pursuit’’ (I–699). (i) Each recognized rected, the course provider shall be is- course of study shall prepare a stand- sued Form I–804. Each district director ardized certificate that is signed by the shall compile and maintain lists of rec- designated official. The Certificate ognized courses within his or her dis- shall be issued to an applicant who has trict. attended a recognized course of study (7) Fee structure. No maximum fee for at least 40 hours of a minimum of standard will be imposed by the Attor- 60-hour course as appropriate for his or ney General. However, if it is believed her ability level, and is demonstrating that a fee charged is excessive, this fac- progress according to the performance tor alone will justify non-certification standards of the English and U.S. his- of the course provider by INS as pro- tory and government course prescribed. vided in § 245a.3(b)(10) and/or (12) of this Such standards shall conform with the section. Once fees are established, any provisions of § 245a.1(s) of this chapter. change in fee without prior approval of (ii) The district director shall reject the district director or the Director of a certificate if it is determined that Outreach may justify de-certification. the certificate is fraudulent or was In determining whether or not a fee is fraudulently issued. excessive, district directors and the Di- (iii) The district director shall reject rector of Outreach shall consider such a Certificate if it is determined that factors as the means of instruction, the course provider is not complying class size, prevailing wages of instruc- with INS regulations. In the case of tors in the area of the program, and ad- non-compliance, the district director ditional costs such as rent, materials, will advise the course provider in writ- utilities, insurance, and taxes. District ing of the specific deficiencies and give directors and the Director of Outreach the provider thirty (30) days within may also seek the assistance of various which to correct such deficiencies. Federal, State and local entities as the (iv) District directors will accept need arises (e.g., State Departments of Certificates from course providers once Education) to determine the appro- it is determined that the deficiencies priateness of course fees. have been satisfactorily corrected. (8) The Citizenship textbooks to be (v) Course providers which engage in used by applicants for lawful perma- fraudulent activities or fail to conform nent residence under section 245A of with INS regulations will be removed the Act shall be distributed by the from the list of INS approved pro- Service to appropriate representatives grams. INS will not accept Certificates of public schools. These textbooks may from these providers. otherwise be purchased from the Super- (vi) Certificates may be accepted if a intendent of Documents, Government program is cited for deficiencies or de- Printing Office, Washington, DC 20402, certified at a later date and no fraud and are also available at certain public was involved. institutions. (vii) Certificates shall not be accept- (9) Maintenance of Student Records. ed from a course provider that has been Course providers conducting courses of decertified unless the alien enrolled in study recognized under § 245a.3(b)(5) of and had been issued a certificate prior this chapter shall maintain for each to the decertification, provided that no student, for a period of three years fraud was involved. from the student’s enrollment, the fol- (viii) The appropriate State agency lowing information and documents: responsbile for SLIAG funding shall be (i) Name (as copied exactly from the notified of all decertifications by the I–688A or I–688); district director. (ii) A-number (90 million series); (11) Designated official. (i) The des- (iii) Date of enrollment; ignated official is the authorized per- (iv) Attendance records; son from each recognized course of

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study whose signature appears on all (E) Assure that fees (if any) assessed ‘‘Certificates of Satisfactory Pursuit’’ by the course provider are in compli- issued by that course; ance in accordance with § 245a.3(b)(7). (ii) The designated official must be a (ii) If INS has reason to believe that regularly employed member of the the service is not being provided to the school administration whose office is applicant, INS will issue a 24-hour min- located at the school and whose com- imum notice to the service provider be- pensation does not come from commis- fore any site visit is conducted. sions for recruitment of foreign stu- (iii) If it is determined that a course dents; provider is not performing according to (iii) (A) The head of the school sys- the standards established in either tem or school, the director of the § 245a.3(b)(10) or (12) of this chapter, the Qualified Designated Entity, the head district director shall institute decerti- of a program approved by the Attorney fication proceedings. Notice of Intent General, or the president or owner of to Decertify shall be provided to the other institutions recognized by the course provider. The course provider Attorney General must specify a des- has 30 days within which to correct ignated official. Such designated official performance according to standards es- may not delegate this designation to tablished. If after the 30 days, the dis- any other person. Each school or insti- trict director is not satisfied that the tution may have up to three (3) des- basis for decertification has been over- ignated officials at any one time. In a come, the course provider will be de- multi-campus institution, each campus certified. The appropriate State agency may have up to three (3) designated of- shall be notified in accordance with ficials at any one time; § 245a.3(b)(10)(viii) of this chapter. A copy of the notice of decertification (B) Each designated official shall shall be sent to the State agency. have read and otherwise be familiar (13) Courses of study recognized by with the ‘‘Requirements and Guidelines the Attorney General as defined at for Courses of Study Recognized by the § 245a.3(b)(5) of this chapter shall pro- Attorney General’’. The signature of a vide certain standards for the selection designated official shall affirm the offi- of teachers. Since some programs may cial’s compliance with INS regulations; be in locations where selection of (C) The name, title, and sample sig- qualified staff is limited, or where nature of each designated official for budget constraints restrict options, the each recognized course of study shall following list of qualities for teacher be on file with the district director in selection is provided as guidance. whose jurisdiction the program is con- Teacher selections should include as ducted. many of the following qualities as pos- (12) Monitoring by INS. (i) INS Out- sible: reach personnel in conjunction with (i) Specific training in Teaching Eng- the district director shall monitor the lish to Speakers of Other Languages course providers in each district in (TESOL); order to: (ii) Experience as a classroom teach- (A) Assure that the program is a er with adults; course of study recognized by the At- (iii) Cultural sensitivity and open- torney General under the provisions of ness; § 245a.3(b)(5). (iv) Familiarity with compentency- (B) Verify the existence of curriculm based education; as defined in § 245a.1(u) on file for each (v) Knowledge of curriculum and ma- level of instruction provided in English terials adaptation; language and U.S. history and govern- (vi) Knowledge of a second language. ment classes. (c) Ineligible aliens. (1) An alien who (C) Assure that ‘‘Certificates of Sat- has been convicted of a felony, or three isfactory Pursuit’’ are being issued in or more misdemeanors in the United accordance with § 245a.3(b)(10). States. (D) Assure that records are main- (2) An alien who is inadmissible to tained on each temporary resident en- the United States as an immigrant, ex- rollee in accordance with § 245a.3(b)(9). cept as provided in § 245a.3(g)(1).

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(3) An alien who was previously an original signature. A facsimile sig- granted temporary resident status pur- nature on a rubber stamp will not be suant to section 245A(a) of the Act who acceptable. has not filed an application for perma- (v) Original documents. Original docu- nent resident status under section ments must be presented when re- 245A(b)(1) of the Act by the end of 43 quested by the Service. Official govern- months from the date of actual ap- ment records, employment or employ- proval of the temporary resident appli- ment-related records maintained by cation. employers, unions, or collective bar- (4) An alien who was not previously gaining organizations, medical records, granted temporary resident status school records maintained by a school under section 245A(a) of the Act. or school board or other records main- (5) An alien whose temporary resi- tained by a party other than the appli- dent status has been terminated under cant which are submitted in evidence § 245a.2(u) of this chapter must be certified as true and complete (d) Filing the application. The provi- by such parties and must bear their sions of part 211 of this chapter relat- seal or signature or the signature and ing to the documentary requirements title of persons authorized to act in for immigrants shall not apply to an their behalf. At the discretion of the applicant under this part. district director and/or the Regional (1) The application must be filed on Processing Facility director, original Form I–698. Form I–698 must be accom- documents may be kept for forensic ex- panied by the correct fee and docu- amination. ments specified in the instructions. (3) A separate application (I–698) The application will be mailed to the must be filed by each eligible appli- director having jurisdiction over the cant. All fees required by § 103.7(b)(1) of applicant’s place of residence. this chapter must be submitted in the (2) Certification of documents. The sub- exact amount in the form of a money mission of original documents is not order, cashier’s check or certified bank required at the time of filing Form I– check. No personal checks or currency 698. A copy of a document submitted in will be accepted. Fees will not be support of Form I–698 filed pursuant to waived or refunded under any cir- section 245A(b) of the Act and this part cumstances. may be accepted, though unaccom- (4) Applicants who filed for tem- panied by the original, if the copy is porary resident status prior to Decem- certified as true and complete by ber 1, 1987, are required to submit the (i) An attorney in the format pre- results of a serologic test for HIV virus scribed in § 204.2(j)(1) of this chapter; or on Form I–693, ‘‘Medical Examination (ii) An alien’s representative in the of Aliens Seeking Adjustment of Sta- format prescribed in § 204.2(j)(2) of this tus’’, completed by a designated civil chapter; or surgeon, unless the serologic test for (iii) A qualified designated entity HIV was performed and the results (QDE) in good standing as defined in were submitted on Form I–693 when the § 245a.1(r) of this chapter, if the copy applicant filed for temporary resident bears a certification by the QDE in status. Applicants who did submit an I– good-standing, typed or rubber- 693 reflecting a serologic test for HIV stamped in the following language: was performed prior to December 1, I certify that I have compared this copy 1987, must submit evidence of this fact with its original and it is a true and com- when filing the I–698 application in plete copy. order to be relieved from the require- Signed: ——————————————————— ment of submitting another I–693. If Date: ———————————————————— such evidence is not available, appli- Name: ———————————————————— cants may note on their I–698 applica- QDE in good-standing representative tion their prior submission of the re- Name of QDE in good-standing: ——————— sults of the serologic test for HIV. This Address of QDE in good-standing: —————— information shall then be verified at INS–QDE Cooperative Agreement Number: — the Regional Processing Facility. Ap- (iv) Authentication. Certification of plicants having to submit an I–693 pur- documents must be authenticated by suant to this section are not required

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to have a complete medical examina- ance of Form I–551. Each applicant tion. All HIV-positive applicants shall shall be interviewed by an immigration be advised that a waiver of the ground officer, except that the adjudicative of excludability under section 212(a)(6) interview may be waived for a child of the Act is available and shall be pro- under 14, or when it is impractical be- vided the opportunity to apply for the cause of the health or advanced age of waiver. To be eligible for the waiver, the applicant. An applicant failing to the applicant must establish that: appear for the scheduled interview (i) The danger to the public health of may, for good cause, be afforded an- the United States created by the other interview. Where an applicant alien’s admission to the United States fails to appear for two scheduled inter- is minimal, views, his or her application shall be (ii) The possibility of the spread of held in abeyance until the end of 43 the infection created by the alien’s ad- months from the date the application mission to the United States is mini- for temporary residence was approved mal, and and adjudicated on the basis of the ex- (iii) There will be no cost incurred by isting record. any government agency without prior (f) Numerical limitations. The numeri- consent of that agency. Provided these cal limitations of sections 201 and 202 criteria are met, the waiver may be of the Act do not apply to the adjust- granted only for humanitarian pur- ment of aliens to lawful permanent poses, to assure family unity, or when resident status under section 245A(b) of the granting of such a waiver is in the the Act. public interest in accordance with (g) Applicability of exclusion grounds— § 245a.3(g)(2) of this chapter. (1) Grounds of exclusion not to be applied. (5) If necessary, the validity of an The following paragraphs of section alien’s temporary resident card (I–688) 212(a) of the Act shall not apply to ap- will be extended in increments of one plicants for adjustment of status from (1) year until such time as the decision temporary resident to permanent resi- on an alien’s properly filed application dent status: (14) workers entering with- for permanent residence becomes final. out labor certification; (20) immigrants (6) An application lacking the proper not in possession of valid entry docu- fee or incomplete in any way shall be ments; (21) visas issued without com- returned to the applicant with request pliance of section 203; (25) illiterates; for the proper fee, correction, addi- and (32) graduates of non-accredited tional information, and/or documenta- medical schools. tion. Once an application has been ac- (2) Waiver of grounds of excludability. cepted by the Service and additional Except as provided in paragraph (g)(3) information and/or documentation is of this section, the Service may waive required, the applicant shall be sent a any provision of section 212(a) of the notice to submit such information and/ Act only in the case of individual or documentation. In such case the ap- aliens for humanitarian purposes, to plication Form I–698 shall be retained assure family unity, or when the grant- at the RPF. If a response to this re- ing of such a waiver is otherwise in the quest is not received within 60 days, a public interest. In any case where a second request for correction, addi- provision of section 212(a) of the Act tional information, and/or documenta- has been waived in connection with an tion shall be made. If the second re- alien’s application for lawful tem- quest is not complied with by the end porary resident status under section of 43 months from the date the applica- 245A(a) of the Act, no additional waiver tion for temporary residence, Form I– of the same ground of excludability 687, was approved the application for will be required when the alien applies permanent residence will be adju- for permanent resident status under dicated on the basis of the existing section 245A(b)(1) of the Act. In the record. event that the alien was excludable (e) Interview. Each applicant regard- under any provision of section 212(a) of less of age, must appear at the appro- the Act at the time of temporary resi- priate Service office and must be dency and failed to apply for a waiver fingerprinted for the purpose of issu- in connection with the application for

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temporary resident status, or becomes under the provisions of section excludable subsequent to the date tem- 212(a)(15) of the act. porary residence was granted, a waiver (iii) Special Rule. An alien who has a of the ground of excludability, if avail- consistent employment history which able, will be required before permanent shows the ability to support himself or resident status may be granted. herself even though his or her income (3) Grounds of exclusion that may not may be below the poverty level is not be waived. Notwithstanding any other excludable under paragraph (g)(3)(ii) of provisions of the Act the following pro- this section. The alien’s employment visions of section 212(a) of the Act may history need not be continuous in that not be waived by the Attorney General it is uninterrupted. It should be contin- under paragraph (g)(2) of this section: uous in the sense that the alien shall (i) Paragraphs (9) and (10) (crimi- be regularly attached to the workforce, nals); has an income over a substantial pe- (ii) Paragraph (15) (public charge) ex- riod of the applicable time, and has cept for an alien who is or was an aged, demonstrated the capacity to exist on blind, or disabled individual (as defined his or her income without recourse to in section 1614(a)(1) of the Social Secu- public cash assistance. The Special rity Act); Rule is prospective in that the Service shall determine, based on the alien’s (iii) Paragraph (23) (narcotics), ex- history, whether he or she is likely to cept for a single offense of simple pos- become a public charge. Past accept- session of thirty grams or less of mari- ance of public cash assistance within a juana; history of consistent employment will (iv) Paragraphs (27) (prejudicial to enter into this decision. The weight the public interest), (28) (communists), given in considering applicability of and (29) (subversives); the public charge provisions will de- (v) Paragraph (33) (participated in pend on many factors, but the length of Nazi persecution). time an applicant has received public (4) Determination of Likely to become a cash assistance will constitute a sig- public charge and Special Rule. Prior to nificant factor. It is not necessary to use of the special rule for determina- file a waiver in order to apply the Spe- tion of public charge, paragraph cial Rule for Determination of Public (g)(4)(iii) of this section, an alien must Charge. first be determined to be excludable (5) Public cash assistance and criminal under section 212(a)(15) of the Act. If history verification. Declarations by an the applicant is determined to be likely applicant that he or she has not been to become a public charge, he or she may the recipient of public cash assistance still be admissible under the terms of and/or has not had a criminal record the Special Rule. are subject to a verification of facts by (i) In determining whether an alien is the Service. The applicant must agree likely to become a public charge financial to fully cooperate in the verification responsibility of the alien is to be es- process. Failure to assist the Service in tablished by examining the totality of verifying information necessary for the alien’s circumstances at the time proper adjudication may result in de- of his or her application for legaliza- nial of the application. tion. The existence or absence of a par- (h) Departure. An applicant for ad- ticular factor should never be the sole justment to lawful permanent resident criteria for determining if an alien is status under section 245A(b)(1) of the likely to become a public charge. The Act who was granted lawful temporary determination of financial responsibil- resident status under section 245A(a) of ity should be a prospective evaluation the Act, shall be permitted to return to based on the alien’s age, health, in- the United States after such brief and come, and vocation. casual trips abroad, as long as the alien (ii) The Special Rule for determina- reflects a continuing intention to ad- tion of public charge, paragraph just to lawful permanent resident sta- (g)(4)(iii) of this section, is to be ap- tus. However, such absences from the plied only after an initial determina- United States must not exceed the pe- tion that the alien is inadmissible riods of time specified in § 245a.3(b)(2)

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of this chapter in order for the alien to nial in accordance with the procedures maintain continuous residence as spec- of § 103.3(a) of this chapter. An appeal ified in the Act. received after the thirty (30) day period (i) Decision. The applicant shall be has tolled will not be accepted. The notified in writing of the decision, and, thirty (30) day period for submitting an if the application is denied, of the rea- appeal begins three days after the no- son therefor. Applications for perma- tice of denial is mailed. If a review of nent residence under this chapter will the Record of Proceeding (ROP) is re- not be denied at local INS offices (dis- quested by the alien or his or her legal tricts, suboffices, and legalization of- representative and an appeal has been fices) until the entire record of pro- properly filed, an additional thirty (30) ceeding has been reviewed. An applica- days will be allowed for this review tion will not be denied if the denial is from the time the Record of Proceed- based on adverse information not pre- ing is photocopied and mailed. A brief viously furnished to the Service by the may be submitted with the appeal form alien without providing the alien an or submitted up to thirty (30) calendar opportunity to rebut the adverse infor- days from the date of receipt of the ap- mation and to present evidence in his peal form at the Regional Processing or her behalf. If inconsistencies are Facility. Briefs filed after submission found between information submitted of the appeal should be mailed directly with the adjustment application and to the Regional Processing Facility. information previously furnished to For good cause shown, the time within the Service, the applicant shall be af- which a brief supporting an appeal may forded the opportunity to explain dis- be submitted may be extended by the crepancies or rebut any adverse infor- Director of the Regional Processing mation. A party affected under this Facility. part by an adverse decision is entitled (k) Motions. The Regional Processing to file an appeal on Form I–694. If an Facility director may reopen and re- application is denied, work authoriza- consider any adverse decision sua tion will be granted until a final deci- sponte. When an appeal to the Associ- sion has been rendered on an appeal or ate Commissioner, Examinations (Ad- until the end of the appeal period if no appeal is filed. An applicant whose ap- ministrative Appeals Unit) has been peal period has ended is no longer con- filed, the INS director of the Regional sidered to be an Eligible Legalized Processing Facility may issue a new Alien for the purposes of the adminis- decision that will grant the benefit tration of State Legalization Impact which has been requested. The direc- Assistance Grants (SLIAG) funding. An tor’s new decision must be served on alien whose application is denied will the appealing party within forty-five not be required to surrender his or her (45) days of receipt of any briefs and/or temporary resident card (I–688) until new evidence, or upon expiration of the such time as the appeal period has time allowed for the submission of any tolled, or until expiration date of the I– briefs. 688, whichever date is later. After ex- (l) Certifications. The Regional Proc- haustion of an appeal, an applicant essing Facility director or district di- who believes that the grounds for de- rector may, in accordance with § 103.4 nial have been overcome may submit of this chapter, certify a decision to another application with fee, provided the Associate Commissioner, Examina- that the application is submitted with- tions (Administrative Appeals Unit) in his or her eligibility period. when the case involves an unusually (j) Appeal process. An adverse decision complex or novel question of law or under this part may be appealed to the fact. The decision on an appealed case Associate Commissioner, Examinations subsequently remanded back to either (Administrative Appeals Unit) the ap- the Regional Processing Facility direc- pellate authority designated in tor or the district director will be cer- § 103.1(f)(2). Any appeal shall be submit- tified to the Administrative Appeals ted to the Regional Processing Facility Unit. with the required fee within thirty (30) (m) Date of adjustment to permanent days after service of the Notice of De- residence. The status of an alien whose

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application for permanent resident station of reports to Congress under sec- tus is approved shall be adjusted to tion 404 of IRCA, or; (iv) For the fur- that of a lawful permanent resident as nishing of information, at the discre- of the date of filing of the application tion of the Attorney General, in the for permanent residence or the eligi- same manner and circumstances as bility date, whichever is later. For pur- census information may be disclosed by poses of making application to petition the Secretary of Commerce under sec- for naturalization, the continuous resi- tion 8 of title 13, Unites States Code. dence requirements for naturalization (o) Rescission. Rescission of adjust- shall begin as of the date the alien’s ment of status under 245a shall occur status is adjusted to that of a person under the guidelines established in sec- lawfully admitted for permanent resi- tion 246 of the Act. dence under this part. [54 FR 29449, July 12, 1989; 54 FR 43384, Oct. (n) Limitation on access to information 24, 1989; as amended at 56 FR 31061, July 9, and confidentiality. (1) No person other 1991; 57 FR 3926, Feb. 3, 1992; 59 FR 33905, July than a sworn officer or employee of the 1, 1994] Department of Justice or bureau of agency thereof, will be permitted to ex- § 245a.4 Adjustment to lawful resident amine individual applications. For pur- status of certain nationals of coun- poses of this part, any individual em- tries for which extended voluntary ployed under contract by the Service departure has been made available. to work in connection with the Legal- (a) Definitions. As used in this sec- ization Program shall be considered an tion: (1) Act means the Immigration employee of the Department of Justice or and Nationality Act, as amended by bureau or agency thereof. the Immigration Reform and Control (2) No information furnished pursu- Act of 1986. ant to an application for permanent (2) Service means the Immigration resident status under this section shall and Naturalization Service (INS). be used for any purpose except: (i) To (3) Resided continuously means that make a determination on the applica- the alien shall be regarded as having tion; or (ii) for the enforcement of the resided continuously in the United provisions encompassed in section States if, at the time of filing of the 245A(c)(6) of the Act, except as provided application for temporary resident sta- in paragraph (n)(3) of this section. tus: (3) If a determination is made by the (i) No single absence from the United Service that the alien has, in connec- States has exceeded 45 days, and the tion with his or her application, en- aggregate of all absences has not ex- gaged in fraud or willful misrepresen- ceeded 180 days between July 21, 1984, tation or concealment of a material through the date the application for fact, knowingly provided a false writ- temporary resident status is filed, un- ing or document in making his or her less the alien can establish that due to application, knowingly made a false emergent reasons, his or her return to statement or representation, or en- the United States could not be accom- gaged in any other activity prohibited plished within the time period allowed; by section 245A(c)(6) of the Act, the (ii) The alien was maintaining resi- Service shall refer the matter to the dence in the United States; and United States Attorney for prosecution (iii) The alien’s departure from the of the alien and/or of any person who United States was not based on an created or supplied a false writing or order of deportation. document for use in an application for An alien who has been absent from the adjustment of status under this part. United States in accordance with the (4) Information contained in granted Service’s advance parole procedures legalization files may be used by the shall not be considered as having inter- Service at a later date to make a deci- rupted his or her continuous residence sion (i) On an immigrant visa petition as required at the time of filing an ap- or other status filed by the applicant plication. An alien who, after appear- under section 204(a) of the Act; (ii) On ing for a scheduled interview to obtain a naturalization application submitted an immigrant visa at a Consulate or by the applicant; (iii) For the prepara- Embassy in Canada or Mexico but who

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subsequently is not issued an immi- ment of status. Aliens who were out- grant visa and who is paroled back into side of the United States after enact- the United States pursuant to the ment may apply for temporary resi- stateside criteria program, shall be dence if they reentered prior to March considered as having resided continu- 21, 1988, provided they meet the continously. uous residence requirements, and are (4) Continous residence means that the otherwise eligible for legalization. alien shall be regarded as having re- (7) Brief, casual, and innocent means a sided continously in the United States departure authorized by the Service if, at the time of applying for adjust- (advance parole) subsequent to March ment from temporary residence to per- 21, 1988, for not more than 30 days for manent resident status: No single ab- legitimate emergency or humanitarian sence from the United States has ex- purposes unless a further period of au- ceeded 30 days, and the aggregate of all thorized departure has been granted in absences has not exceeded 90 days be- the discretion of the district director tween the date on which lawful tem- or a departure was beyond the alien’s porary resident status was granted and the date permanent resident status was control. applied for, unless the alien can estab- (8) Brief and casual means temporary lish that due to emergent reasons or trips abroad as long as the alien estab- extenuating circumstances beyond his lishes a continuing intention to adjust or her control, the return to the United to lawful permanent resident status. States could not be accomplished with- However, such absences must not ex- in the time period(s) allowed. A single ceed the specific periods of time re- absence from the United States of more quired in order to maintain continuous than 30 days, and aggregate absences of residence. more than 90 days during the period for (9) Certain nationals of countries for which continuous residence is required which extended voluntary departure has for adjustment to permanent resident been made available on the basis of a na- status, shall break the continuity of tionality group determination at any time such residence unless the temporary during the 5-year period ending on No- resident can establish to the satisfac- vember 1, 1987 is limited to nationals of tion of the district director that he or Poland, Afghanistan, Ethiopia, and she did not, in fact, abandon his or her Uganda. residence in the United States during (10) Public cash assistance means in- such period. come or need-based monetary assist- (5) To make a determination means ob- ance to include, but not limited to, taining and reviewing all information supplemental security income received required to adjudicate an application by the alien through federal, state, or for the benefit sought and making a de- local programs designed to meet sub- cision thereon. If fraud, willful mis- sistence levels. It does not include as- representation or concealment of a ma- sistance in kind, such as food stamps, terial fact, knowingly providing a false writing or document, knowingly mak- public housing, or other non-cash bene- ing a false statement or representa- fits, nor does it include work related tion, or any other activity prohibited compensation or certain types of medi- by the Act is established during the cal assistance (Medicare, Medicaid, process of making the determination emergency treatment, services to preg- on the application, the Service shall nant women or children under 18 years refer the matter to the United States of age, or treatment in the interest of Attorney for prosecution of the alien public health). or of any person who created or sup- (11) Designated entity means any plied a false writing or document for state, local, church, community, farm use in an application for adjustment of labor organization, voluntary organiza- status under this part. tion, association of agricultural em- (6) Continuous physical presence means ployers or individual determined by the actual continuous presence in the Unit- Service to be qualified to assist aliens ed States since December 22, 1987, until in the preparation of applications for filing of any application for adjust- legalization status.

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(12) Through the passage of time means (C) An alien who is a national of Po- through the expiration date of the non- land, Uganda, Ethiopia, or Afghani- immigrant permission to remain in the stan, and establishes that he or she en- United States, including any exten- tered the United States as a non- sions and/or change of status. immigrant prior to July 21, 1984, and (13) Prima facie eligibility means eligi- who applied for asylum prior to July bility is established if the applicant 21, 1984, and who has thereafter resided presents a completed I–687 and specific continuously in the United States, and factual information which in the ab- who has been physically present in the sence of rebuttal will establish a claim United States from December 22, 1987, of eligibility under this part. until the date of filing the application. (b) Application for temporary resi- (D) An alien who is a national of Po- dence—(1) Application for temporary resi- land, Uganda, Ethiopia, or Afghani- dence. (i) An alien who is a national of stan, who would otherwise be eligible Poland, Uganda, Ethiopia, or Afghani- for temporary resident status and who stan who has resided continuously in establishes that he or she resided con- the United States since prior to July 2l, 1984, and who believes that he or she tinuously in the United States prior to meets the eligibility requirements of July 21, 1984, and who subsequently re- section 245A of the Act must make ap- entered the United States as a non- plication within the 21-month period immigrant in order to return to an beginning on March 21, 1988, and ending unrelinquished residence. An alien de- on December 22, 1989. scribed in this paragraph must have re- (ii) An alien who fails to file an appli- ceived a waiver of 212(a)(19) as an alien cation for adjustment of status to that who entered the United States by of a temporary resident under § 245A.4 fraud. of this part during the time period, will (E) An alien who is a national of Po- be statutorily ineligible for such ad- land, Uganda, Ethiopia, or Afghani- justment of status. stan, and was a nonimmigrant who en- (2) Eligibility (i) The following cat- tered the United States in the classi- egories of aliens who are not otherwise fication A, A–1, A–2, G, G–1, G–2, G–3, excludable under section 212(a) of the or G–4, for Duration of Status (D/S), Act are eligible to apply for status to and whose qualifying employment ter- that of a person admitted for tem- minated or who ceased to be recognized porary residence: by the Department of State as being (A) An alien who is a national of Po- entitled to such classification prior to land, Uganda, Ethiopia, or Afghani- January 21, 1985, and who thereafter stan, (other than an alien who entered continued to reside in the United as a nonimmigrant) who establishes States. that he or she entered the United (F) An alien who is a national of Po- States prior to July 21, 1984, and who land, Uganda, Ethiopia, or Afghani- has thereafter resided continuously in stan, and who was a nonimmigrant who the United States, and who has been entered the United States as an F, F–1, physically present in the United States from December 22, 1987, until the date or F–2 for Duration of Status (D/S), and of filing the application. who completed a full course of studies, (B) An alien who is a national of Po- including practical training (if any), land, Uganda, Ethiopia, or Afghani- and whose time period to depart the stan, and establishes that he or she en- United States after completion of stud- tered the United States as a non- ies expired prior to January 21, 1985, immigrant prior to July 21, 1984, and and who has thereafter continued to re- whose period of authorized admission side in the United States. Those stu- expired through the passage of time dents placed in a nunc pro tunc retro- prior to January 21, 1985, and who has active student status which would oth- thereafter resided continuously in the erwise preclude their eligibility for le- United States, and who has been phys- galization under this section, must ically present in the United States present evidence that they had other- from December 22, 1987, until the date wise terminated their status during the of filing the application. requisite time period. A dependent F–2

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alien otherwise eligible who was admit- (A) Passport; ted into the United States with a spe- (B) Birth certificate; cific time period, as opposed to dura- (C) Any national identity document tion of status, documented on Service from the alien’s country of origin bear- Form I–94, Arrival-Departure Record ing photo and fingerprint; that extended beyond July 21, 1984 is (D) Other credible documents, includ- considered eligible if the principal F–1 ing those created by, or in the posses- alien is found eligible. sion of the INS, or any other docu- (3) Ineligible aliens. (i) An alien who ments (excluding affidavits) that, when has been convicted of a felony, or three taken singly, or together as a whole, or more misdemeanors. establish the alien’s nationality. (ii) An alien who has assisted in the (iii) Assumed names—(A) General. In persecution of any person or persons on cases where an applicant claims to account of race, religion, nationality, have met any of the eligibility criteria membership in a particular social under an assumed name, the applicant group, or political opinion. has the burden of proving that the ap- (iii) An alien excludable under the plicant was in fact the person who used provisions of section 212(a) of the Act that name. The applicant’s true iden- whose grounds of excludability may tity is established pursuant to the re- not be waived. quirements of paragraph (b)(4)(i) and (4) Documentation. Evidence to sup- (ii) of this section. The assumed name port an alien’s eligibility for tem- must appear in the documentation pro- porary residence status shall include documents establishing proof of iden- vided by the applicant to establish eli- tity, proof of nationality, proof of resi- gibility. To meet the requirement of dence, and proof of financial respon- this paragraph, documentation must be sibility, as well as photographs, a com- submitted to prove the common iden- pleted fingerprint card (Form FD–258), tity, i.e., that the assumed name was and a completed medical report of ex- in fact used by the applicant. amination (Form I–693). All docu- (B) Proof of common identity. The most mentation submitted will be subject to persuasive evidence is a document is- Service verification. Applications sub- sued in the assumed name which iden- mitted with unverifiable documenta- tifies the applicant by photograph, fin- tion may be denied. Failure by an ap- gerprint, or detailed physical descrip- plicant to authorize release to INS of tion. Other evidence which will be con- information protected by the Privacy sidered are affidavit(s) by a person or Act and/or related laws in order for INS persons other than the applicant, made to adjudicate a claim may result in de- under oath, which identify the affiant nial of the benefit sought. Acceptable by name and address, state the supporting documents for the four cat- affiant’s relationship to the applicant egories of documentation are discussed and the basis of the affiant’s knowledge as follows: of the applicant’s use of the assumed (i) Proof of identity. Evidence to es- name. Affidavits accompanied by a tablish identity is listed below in de- photograph which has been identified scending order of preference: by the affiant as the individual known (A) Passport; to the affiant under the assumed name (B) Birth certificate; in question will carry greater weight. (C) Any national identity document (iv) Proof of residence. Evidence to es- from the alien’s country of origin bear- tablish proof of continuous residence in ing photo and fingerprint; the United States during the requisite (D) Driver’s license or similar docu- period of time may consist of any comment issued by a state if it contains a bination of the following: photo; (A) Past employment records, which (E) Baptismal Record/Marriage Cer- may consist of pay stubs, W–2 Forms, tificate; or certification of the filing of Federal in- (F) Affidavits. come tax returns on IRS Form 6166, a (ii) Proof of nationality. Evidence to state verification of the filing of state establish nationality is listed as fol- income tax returns, letters from em- lows: ployer(s) or, if the applicant has been

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in business for himself or herself, let- (4) State the address where applicant ters from banks and other firms with resided during membership period; whom he or she has done business. In (5) Include the seal of the organiza- all of the above, the name of the alien tion impressed on the letter or the let- and the name of the employer or other terhead of the organization, if the or- interested organizations must appear ganization has letterhead stationery; on the form or letter, as well as rel- (6) Establish how the author knows evant dates. Letters from employers the applicant; and should be on employer letterhead sta- (7) Establish the origin of the infor- tionery, if the employer has such sta- mation being attested to. tionery, and must include: (F) Additional documents to support (1) Alien’s address at the time of em- the applicant’s claim may include: ployment; (1) Money order receipts for money (2) Exact period of employment; sent into or out of the country; (3) Periods of layoff; (2) Passport entries; (4) Duties with the company; (3) Birth certificates of children born (5) Whether or not the information in the United States; was taken from official company (4) Bank books with dated trans- records; and actions; (6) Where records are located, wheth- (5) Letters or correspondence be- er the Service may have access to the tween applicant and other person or or- records. ganization; If the records are unavailable, an affi- (6) Social Security card; davit form letter stating that the (7) Selective Service card; alien’s employment records are un- (8) Automobile license receipts, title, available and why such records are un- vehicle registration, etc.; available may be accepted in lieu of (9) Deeds, mortgages, contracts to paragraphs (b)(4)(iv)(A)(5) and (6) of which applicant has been a party; this section. This affidavit form letter (10) Tax receipts; shall be signed, attested to by the em- (11) Insurance policies, receipts, or ployer under penalty of perjury, and letters; and shall state the employer’s willingness (12) Any other relevant document. to come forward and give testimony if (v) Proof of financial responsibility. An requested. applicant for adjustment of status (B) Utility bills (gas, electric, phone, under this part is subject to the provi- etc.) receipts, or letters from compa- sions of section 212(a)(15) of the Act re- nies showing the dates during which lating to excludability of aliens likely the applicant received service are ac- to become public charges. Generally, ceptable documentation. the evidence of employment submitted (C) School records (letters, report under paragraph (b)(4)(iv)(A) of this cards, etc.) from the schools that the section will serve to demonstrate the applicant or his or her children have alien’s financial responsibility during attended in the United States must the documented period(s) of employ- show the name of school and periods of ment. If the alien’s period(s) of resi- school attendance. dence in the United States include sig- (D) Hospital or medical records show- nificant gaps in employment or if there ing treatment or hospitalization of the is reason to believe that the alien may applicant or his or her children must have received public assistance while show the name of the medical facility employed, the alien may be required to or physician and the date(s) of the provide proof that he or she has not re- treatment or hospitalization. ceived public cash assistance. An appli- (E) Attestations by churches, unions, cant for residence who is determined or other organizations as to the appli- likely to become a public charge and is cant’s residence by letter which: unable to overcome this determination (1) Identify applicant by name; after application of the Special Rule (2) Are signed by an official (whose under paragraph (b)(11)(iv)(C) of this title is shown); section will be denied adjustment. The (3) Show inclusive dates of member- burden of proof to demonstrate the in- ship; applicability of this provision of law

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lies with the applicant who may pro- (5) Filing of application. (i) The appli- vide: cation must be filed on Form I–687 at (A) Evidence of a history of employ- an office of a designated entity or at a ment (i.e., employment letter, W–2 Service office within the jurisdiction of forms, income tax returns, etc.); the district where the applicant re- (B) Evidence that he/she is self-sup- sides. If the application is filed with a porting (i.e., bank statements, stocks, designated entity, the alien must have other assets, etc.); or consented to having the designated en- (C) Form I–134. Affidavit of Support, tity forward the application to the completed by a spouse on behalf of the Service office. In the case of applica- applicant and/or children of the appli- tions filed at a Service office, the dis- cant or a parent in behalf of children trict director may, at his or her discre- which guarantees complete or partial tion: financial support. Acceptance of the (A) Require the applicant to file the Affidavit of Support shall be extended application in person; or to other family members in unusual (B) Require the applicant to file the family circumstances. application by mail; or Generally, the evidence of employment (C) Permit the filing of applications submitted under paragraph (b)(4)(iv)(A) whether by mail or in person. of this section will serve to dem- The applicant must appear for a per- onstrate the alien’s financial respon- sonal interview at the Service office as sibility during the documented pe- scheduled. If the applicant is 14 years riod(s) of employment. If the alien’s pe- of age or older, the application must be riod(s) of residence in the United accompanied by a completed Form FD– States include significant gaps in em- 258 (Applicant Card). ployment or if there is reason to be- (ii) At the time of the interview, lieve that the alien may have received whenever possible, original documents public assistance while employed, the must be submitted except the follow- alien may be required to provide proof ing: Official government records; em- that he or she has not received public ployment or employment-related cash assistance. An applicant for resi- records maintained by employers, dence who is likely to become a public union, or collective bargaining organi- charge will be denied adjustment. zations; medical records; school records (vi) Burden of proof. An alien apply- maintained by a school or school ing for adjustment of status under this board; or other records maintained by part has the burden of proving by a a party other than the applicant. Cop- preponderance of the evidence that he ies of records maintained by parties or she has resided in the United States other than the applicant which are sub- for the requisite periods, is admissible mitted in evidence must be certified as to the United States under the provi- true and correct by such parties and sions of section 245A of the Act, and is must bear their seal or signature or the otherwise eligible for adjustment of signature and title of persons author- status under this section. The infer- ized to act in their behalf. If at the ence to be drawn from the documenta- time of the interview the return of the tion provided shall depend on the ex- original document is desired by the ap- tent of the documentation, its credibil- plicant, the document must be accom- ity and amenability to verification. panied by notarized copies or copies (vii) Evidence. The sufficiency of all certified true and correct by a qualified evidence produced by the applicant will designated entity or by the alien’s rep- be judged according to its probative resentative in the format prescribed in value and credibility. To meet his or § 204.2(j)(1) or (2) of this chapter. At the her burden of proof, an applicant must discretion of the district director, provide evidence of eligibility apart original documents, even if accom- from his or her own testimony. In judg- panied by certified copies, may be tem- ing the probative value and credibility porarily retained for forensic examina- of the evidence submitted, greater tion by the Document Analysis Unit at weight will be given to the submission the Regional Processing Facility hav- of original documentation. ing jurisdiction over the Service office

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to which the documents were submit- the United States could not be accom- ted. plished within the time period allowed; (iii) A separate application (I–687) (B) The alien was maintaining a resi- must be filed by each eligible appli- dence in the United States; and cant. All fees required by § 103.7(b)(1) of (C) The alien’s departure from the this chapter must be submitted in the United States was not based on an exact amount in the form of a money order of deportation. order, cashier’s check, or certified (ii) An alien who has been absent bank check, made payable to the Im- from the United States in accordance migration and Naturalization Service. with the Service’s advance parole pro- No personal checks or currency will be cedures shall not be considered as hav- accepted. Fees will not be waived or re- ing interrupted his or her continuous funded under any circumstances. residence as required at the time of fil- (6) Filing date of application. The date ing an application under this section. the alien submits a completed applica- (9) Medical examination. (i) An appli- tion to a Service office or designated cant under this part shall be required entity shall be considered the filing to submit to an examination by a des- date of the application, provided that ignated civil surgeon at no expense to in the case of an application filed at a the government. The designated civil designated entity the alien has con- surgeon shall report on the findings of sented to having the designated entity the mental and physical condition of forward the application to the Service the applicant and the determination of office having jurisdiction over the loca- the alien’s immunization status on tion of the alien’s residence. Des- Form I–693, ‘‘Medical Examination of ignated entities are required to forward Aliens Seeking Adjustment of Status, completed applications to the appro- (Pub. L. 99–603)’’. Results of the medi- priate Service office within 60 days of cal examination must be presented to receipt. the Service at the time of interview (7) Selective Service registration. At the and shall be incorporated into the time of filing an application under this record. Any applicant certified under section, male applicants over the age paragraphs (1), (2), (3), (4) or (5) of sec- of 17 and under the age of 26, are re- tion 212(a) of the Act may appeal to a quired to be registered under the Mili- Board of Medical Officers of the U.S. tary Selective Service Act. An appli- Public Health Service as provided in cant shall present evidence that he has section 234 of the Act and part 235 of previously registered under that Act in this chapter. the form of a letter of acknowledge- (ii) All applicants who file for tem- ment from the Selective Service Sys- porary resident status are required to tem, or such alien shall present a com- include the results of a serological test pleted and signed Form SSS–1 at the for the HIV virus on the I–693. All HIV- time of filing Form I–687 with the Im- positive applicants shall be advised migration and Naturalization Service that a waiver is available and shall be or a designated entity. Form SSS–1 provided with the opportunity to apply will be forwarded to the Selective Serv- for a waiver. ice System by the Service. (10) Interview. Each applicant, regard- (8) Continuous residence. (i) For the less of age, must appear at the appro- purpose of this Act, an applicant for priate Service office and must be temporary residence status shall be re- fingerprinted for the purpose of issu- garded as having resided continuously ance of an employment authorization in the United States if, at the time of document and Form I–688. Each appli- filing of the application: cant shall be interviewed by an immi- (A) No single absence from the Unit- gration officer, except that the inter- ed States has exceeded 45 days, and the view may be waived for a child under 14 aggregate of all absences has not ex- years of age, or when it is impractical ceeded 180 days between July 2l, 1984, because of the health or advanced age through the date the application for of the applicant. temporary resident status is filed, un- (11) Applicability of exclusion grounds— less the alien can establish that due to (i) Grounds of exclusion not to be applied. emergent reasons, his or her return to Paragraphs (14), (workers entering

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without labor certification); (20), (im- therefore. Appeal from an adverse deci- migrants not in possession of a valid sion under this part may be taken by entry document); (21), (visas issued the applicant on Form I–694 within 30 without compliance with section 203); days after the service of the notice (25), (illiterates); and (32) (graduates of only to the Service’s Administrative non-accredited medical schools) of sec- Appeals Unit pursuant to the provi- tion 212(a) of the Act shall not apply to sions of section 103.3(a) of this chapter. applicants for temporary resident sta- (iii) Grounds of exclusion that may not tus. be waived. Notwithstanding any other (ii) Waiver of grounds of exclusion. Ex- provision of the Act, the following pro- cept as provided in paragraph visions of section 212(a) may not be (b)(11)(iii) of this section, the Attorney waived by the Attorney General under General may waive any other provision paragraph (b)(11)(ii) of this section: of section 212(a) of the Act only in the (A) Paragraphs (9) and (10) (crimi- case of individual aliens for humani- nals); tarian purposes, to assure family (B) Paragraph (23) (narcotics) except unity, or when the granting of such a for a single offense of simple possession waiver is in the public interest. If an of thirty grams or less of marijuana; alien is excludable on grounds which (C) Paragraphs (27) (prejudicial to the may be waived as set forth in this para- public interest), (28) (communist), and graph, he or she shall be advised of the (29) (subversive); procedures for applying for a waiver of (D) Paragraph (33) (participated in grounds of excludability on Form I–690. Nazi persecution). When an application for waiver of (iv) Determination of Likely to become a grounds of excludability is filed jointly public charge and the special rule. (A) with an application for temporary resi- Prior to use of the special rule for de- dence under this section, it shall be ac- termination of public charge, an alien cepted for processing at the Service of- must first be determined to be exclud- fice. If an application for waiver of able under section 212(a)(15) of the Act. grounds of excludability is submitted If the applicant is determined to be after the alien’s preliminary interview likely to become a public charge, he or at the Service office, it shall be for- she may still be admissible under the warded to the appropriate Regional terms of the Special Rule. Processing Facility. All applications (B) In determining whether an alien for waivers of grounds of excludability is likely to become a public charge, finan- must be accompanied by the correct fee cial responsibility of the alien is to be in the exact amount. All fees for appli- established by examining the totality cations filed in the United States must of the alien’s circumstances at the be in the form of a money order, cash- time of his or her application for legal- ier’s check, or bank check. No personal ization. The existence or absence of a checks or currency will be accepted. particular factor should never be the Fees will not be waived or refunded sole criterion for determining if an under any circumstances. An applica- alien is likely to become a public tion for waiver of grounds of exclud- charge. The determination of financial ability under this part shall be ap- responsibility should be a prospective proved or denied by the director of the evaluation based on the alien’s age, Regional Processing Facility in whose health, income and vocation. jurisdiction the alien’s application for (C) An alien who has a consistent em- adjustment of status was filed except ployment history which shows the abil- that in cases involving clear statutory ity to support himself or herself even ineligibility or fraud, such application though his or her income may be below may be denied by the district director the poverty level may be admissible in whose jurisdiction the application is under this section. The alien’s employ- filed, and in cases returned to a Service ment history need not be continuous in office for re-interview, such application that it is uninterrupted. It should be may be approved at the discretion of continuous in the sense that the alien the district director. The applicant shall be regularly attached to the shall be notified of the decision and, if workforce, has an income over a sub- the application is denied, of the reason stantial period of the applicable time,

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and has demonstrated the capacity to reviewed at a Service office and the exist on his or her income without re- date status as a temporary resident is course to public cash assistance. The granted, the alien applicant can be re- Special Rule is prospective in that the admitted to the United States provided Service shall determine, based on the his or her departure was authorized alien’s history, whether he or she is under the Service’s advance parole pro- likely to become a public charge. Past visions contained in § 212.5(e) of this acceptance of public cash assistance chapter. within a history of consistent employ- (ii) An alien whose application for ment will enter into this decision. The temporary resident status has been ap- weight given in considering applicabil- proved may be admitted to the United ity of the public charge provisions will States upon return as a returning tem- depend on many factors, but the length porary resident provided he or she: of time an applicant has received pub- (A) Is not under deportation proceed- lic cash assistance will constitute a ings, such proceedings having been in- significant factor. It is not necessary stituted subsequent to the approval of to file a waiver in order to apply the temporary resident status. A tem- Special Rule for Determination of Pub- porary resident alien will not be con- lic Charge. sidered deported if that alien departs (v) Public assistance and criminal his- the United States while under an out- tory verification. Declarations by an ap- standing order of deportation issued plicant that he or she has not been the prior to the approval of temporary resi- recipient of public cash assistance and/ dent status; or has not had a criminal record are (B) Has not been absent from the subject to a verification of facts by the United States for more than 30 days on Service. The applicant must agree to the date application for admission is fully cooperate in the verification made; process. Failure to assist the Service in (C) Has not been absent from the verifying information necessary for the United States for an aggregate period adjudication of the application may re- of more than 90 days since the date the sult in a denial of the application. alien was granted lawful temporary (12) Continuous physical presence since resident status; December 22, 1987. (i) An alien applying (D) Presents Form I–688; for adjustment to temporary resident (E) Presents himself or herself for in- status must establish that he or she spection; and has been continuously physically (F) Is otherwise admissible. present in the United States since De- (iii) The periods of time in para- cember 22, 1987. Aliens who were out- graphs (b)(13)(ii)(B) and (C) of this sec- side of the United States on the date of tion may be waived at the discretion of enactment or departed the United the Attorney General in cases where States after enactment may apply for the absence from the United States was legalization if they reentered prior to due merely to a brief and casual trip March 21, 1988, and meet the continu- abroad due to emergent or extenuating ous residence requirements and are circumstances beyond the alien’s con- otherwise eligible for legalization. trol. (ii) A brief, casual and innocent ab- (14) Employment and travel authoriza- sence means a departure authorized by tion—(i) General. Authorization for em- the Service (advance parole) subse- ployment and travel abroad for tem- quent to March 21, 1988, of not more porary resident status applicants under than thirty (30) days for legitimate this section may be granted only by a emergency or humanitarian purposes Service office. INS district directors unless a further period of authorized will determine the Service location for departure has been granted in the dis- the completion of processing travel cretion of the district director or a de- documentation. In the case of an appli- parture was beyond the alien’s control. cation which has been filed with a des- (13) Departure. (i) During the time pe- ignated entity, employment authoriza- riod from the date that an alien’s ap- tion may be granted by the Service plication establishing prima facie eligi- only after the application has been bility for temporary resident status is properly received at the Service office.

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(ii) Employment and travel authoriza- Alien for the purposes of the adminis- tion prior to the granting of temporary tration of State Legalization Impact resident status. (A) Permission to travel Assistance Grants (SLIAG) funding. abroad and accept employment may be (15) Decision. The applicant shall be granted to the applicant after an inter- notified in writing of the decision. If view has been conducted in connection the application is denied, the reason(s) with an application establishing prima for the decision shall be provided to the facie eligibility for temporary resident applicant. An appeal from an adverse status. Permission to travel abroad decision under this part may be taken may be granted in emergent cir- by the applicant on Form I–694. cumstances in accordance with the (16) Appeal process. An adverse deci- Service’s advance parole provisions contained in § 212.5(e) of this chapter sion under this part may be appealed to after an interview has been conducted the Associate Commissioner, Examina- in connection with an application es- tions (Administrative Appeals Unit), tablishing prima facie eligibility for the appellate authority designated in temporary resident status. § 103.1(f)(2). Any appeal shall be submit- (B) If an appointment cannot be ted to the Regional Processing Facility scheduled within 30 days, authorization (RPF) with the required fee within 30 to accept employment will be granted, days after service of the Notice of De- valid until the scheduled appointment nial in accordance with the procedures date. The appointment letter will be of § 103.3(a) of this chapter. An appeal endorsed with the temporary employ- received after the 30-day period will ment authorization. An employment not be accepted. The 30-day period for authorization document will be given submission of an appeal begins three to the applicant after an interview has days after the Notice of Denial is been completed by an immigration offi- mailed as provided in § 103.5a(b) of this cer unless a formal denial is issued by Act. If a review of the Record of Pro- a Service office. This temporary em- ceeding (ROP) is requested by the alien ployment authorization will be re- or his or her legal representative and stricted to six-months duration, pend- an appeal has been properly filed, an ing final determination on the applica- additional 30 days will be allowed for tion for temporary resident status. this review beginning at the time the (iii) Employment and travel authoriza- ROP is mailed. A brief may be submit- tion upon grant of temporary resident stated with the appeal form or submitted tus. Upon grant of an application for adjustment to temporary resident sta- up to 30 calendar days from the date of tus by a Regional Processing Facility, receipt of the appeal form at the RPF. the processing facility will forward a Briefs filed after submission of the ap- notice of approval to the alien at his or peal should be mailed directly to the her last known address, or to his or her RPF. For good cause shown, the time legal representative. The alien will be within which a brief supporting an ap- required to return to the appropriate peal may be submitted may be ex- INS office, surrender the I–688A or em- tended by the Director of the Regional ployment authorization document pre- Processing Facility. viously issued, and obtain Form I–688, (17) Motions. The Regional Processing Temporary Resident Card, authorizing Facility director may sua sponte reopen employment and travel abroad. and reconsider any adverse decision. (iv) Revocation of employment author- When an appeal to the Associate Com- ization upon denial of temporary resident missioner, Examinations (Administra- status. Upon denial of an application tive Appeals Unit) has been filed, the for adjustment to temporary resident INS director of the Regional Process- status, the alien will be notified that if ing Facility may issue a new decision a timely appeal is not submitted, em- granting the benefit which has been re- ployment authorization shall be auto- quested. The director’s new decision matically revoked on the final day of must be served on the appealing party the appeal period. An applicant whose within 45 days of receipt of any briefs appeal period has ended is no longer considered to be an Eligible Legalized

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and/or new evidence, or upon expira- mination of his or her status. Evidence tion of the time allowed for the sub- in opposition must be submitted within mission of any briefs. Motions to re- 30 days after the service of the Notice open a proceeding or reconsider a deci- of Intent to Terminate. If the alien’s sion shall not be considered under this status is terminated, the director of part. the Regional Processing Facility shall (18) Certifications. The Regional Proc- notify the alien of the decision and the essing Facility director may, in ac- reason for the termination, and further cordance with § 103.4 of this chapter, notify the alien that any Service Form certify a decision to the Associate issued to the alien authorizing employ- Commissioner, Examinations (Admin- ment and/or travel abroad, or any istrative Appeals Unit) when the case Form I–688, Temporary Resident Card involves an unusually complex or novel previously issued to the alien will be question of law or fact. The decision on declared void by the director of the Re- an appealed case subsequently regional Processing Facility within 30 manded to the Regional Processing Fa- days if no appeal of the termination de- cility director will be certified to the cision is filed within that period. The Administrative Appeals Unit. alien may appeal the decision to the (19) Date of adjustment to temporary Associate Commissioner, Examinations residence. The status of an alien whose (Administrative Appeals Unit). Any ap- application for temporary resident sta- peal along with the required fee, shall tus is approved shall be adjusted to be filed with the Regional Processing that of a lawful temporary resident as Facility within 30 days after the serv- of the date indicated on the application ice of the notice of termination. If no fee receipt issued at the Service office. appeal is filed within that period, the (20) Termination of temporary resident official Service document shall be status—(i) Termination of temporary resi- deemed void, and must be surrendered dent status (General). The status of an without delay to an immigration offi- alien lawfully admitted for temporary cer or to the issuing office of the Serv- residence under § 245a.4 of this part ice. may be terminated at any time. It is (iii) Termination not construed as re- not necessary that a final order of de- scission under section 246. For the pur- portation be entered in order to termi- poses of this part the phrase terminate temporary resident status. The nation of status of an alien granted law- temporary resident status may be ter- ful temporary residence under this sec- minated upon the occurrence of any of tion shall not be construed to neces- the following: sitate a rescission of status as de- (A) It is determined that the alien scribed in section 246 of the Act, and was ineligible for temporary residence the proceedings required by the regula- under § 245a.4 of this part; tions issued thereunder shall not apply. (B) The alien commits an act which (iv) Return to unlawful status after ter- renders him or her inadmissible as an mination. Termination of the status of immigrant unless a waiver is obtained, any alien previously adjusted to lawful as provided in this part; temporary residence shall act to return (C) The alien is convicted of any fel- such alien to the status held prior to ony, or three or more misdemeanors; the adjustment, and render him or her (D) The alien fails to file for adjust- amenable to exclusion or deportation ment of status from temporary resi- proceedings under sections 236 or 242 of dent to permanent resident within 31 the Act, as appropriate. months of the date he or she was grant- (21) Ineligibility for immigration bene- ed status as a temporary resident. fits. An alien whose status is adjusted (ii) Procedure. Termination of an to that of a lawful temporary resident alien’s status will be made only on no- under § 245a.4 of this part is not enti- tice to the alien sent by certified mail tled to submit a petition pursuant to directed to his or her last known ad- section 203(a)(2), nor is such alien enti- dress, and, if applicable, to his or her tled to any other benefit or consider- representative. The alien must be given ation accorded under the Act to aliens an opportunity to offer evidence in op- lawfully admitted for permanent resi- position to the grounds alleged for ter- dence.

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(22) Declaration of intending citizen. An sion on an immigrant visa petition (or alien who has been granted the status other status petition) filed by the ap- of temporary resident under § 245a.4 of plicant under section 204(a), or for nat- this part may assert a claim of dis- uralization applications submitted by crimination on the basis of citizenship the applicant. status under section 274B of the Act (c) Adjustment from temporary to per- only if he or she has previously filed manent resident status. The provisions of Form I–772 (Declaration of Intending § 245a.3 of this part shall be applied to Citizen) after being granted such sta- aliens adjusting to permanent resi- tus. The Declaration of Intending Citi- dence under this part. zen is not required as a basis for filing a petition for naturalization; nor shall [54 FR 6505, Feb. 13, 1989, as amended at 54 it be regarded as a right to United FR 29455, July 12, 1989; 54 FR 47676, Nov. 16, States citizenship; nor shall it be re- 1989; 60 FR 21976, May 4, 1995] garded as evidence of a person’s status as a resident. § 245a.5 Temporary disqualification of (23) Limitation on access to information certain newly legalized aliens from receiving benefits from programs of and confidentiality. (i) No person other financial assistance furnished than a sworn officer or employee of the under federal law. Department of Justice or bureau or agency thereof, will be permitted to ex- (a) Except as provided in § 245a.5(b), amine individual applications. For pur- any alien who has obtained the status poses of this part, any individual em- of an alien lawfully admitted for tem- ployed under contract by the Service porary residence pursuant to section to work in connection with the Legal- 245A of the Act (Adjustment of Status ization Program shall be considered an of Certain Entrants Before January 1, employee of the Department of Justice or 1982, to that of Person Admitted for bureau or agency thereof. Lawful Residence) or 210A of the Act (ii) No information furnished pursu- (Determinations of Agricultural Labor ant to an application for temporary or Shortages and Admission of Additional permanent resident status under this Special Agricultural Workers) is ineli- section shall be used for any purpose gible, for a period of five years from except: the date such status was obtained, for (A) To make a determination on the benefits financed directly or indirectly, application; or, in whole or in part, through the pro- (B) for the enforcement of the provi- grams identified in § 245a.5(c) of this sions encompassed in section 245A(c)(6) chapter. of the Act, except as provided in para- (b)(1) Section 245a.5(a) shall not apply graph (b)(23)(iii) of this section. to a Cuban or Haitian entrant (as de- (iii) If a determination is made by fined in paragraph (1) or (2)(A) of sec- the Service that the alien has, in con- tion 501(e) of Public Law 96–422, as in nection with his or her application, en- effect on April 1, 1983), or in the case of gaged in fraud or willful misrepresen- assistance (other than aid to families tation or concealment of a material with dependent children) which is fur- fact, knowingly provided a false writing or document in making his or her nished to an alien who is an aged, application, knowingly made a false blind, or disabled individual (as defined statement or representation, or en- in section 1614(a)(1) of the Social Secu- gaged in any other activity prohibited rity Act). by section 245A(c)(6) of the Act, the (2) With respect to any alien who has Service shall refer the matter to the obtained the status of an alien lawfully United States Attorney for prosecution admitted for temporary residence pur- of the alien or of any person who cre- suant to section 210A of the Act only, ated or supplied a false writing or doc- assistance furnished under the Legal ument for use in an application for ad- Services Corporation Act (42 U.S.C. justment of status under this part. 2996, et seq.) or title V of the Housing (iv) Information contained in granted Act of 1949 (42 U.S.C. l471 et seq.) shall legalization files may be used by the not be construed to be financial assist- Service at a later date to make a deci- ance referred to in § 245a.5(a).

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(3) Section 245a.5(a) shall not apply GSA to benefits financed through the pro- Program Num- grams identified in § 245a.5(c), which bers are marked with an asterisk (*), except *Community Services Block GrantÐDiscre- to the extent that such benefits: tionary Awards ...... 13.793 (i) Consist of, or are financed by, fi- Department of Housing and Urban Development: nancial assistance in the form of Mortgage InsuranceÐHousing in Older, De- grants, wages, loan, loan guarantees, clining Areas (223(e)) ...... 14.123 Mortgage InsuranceÐSpecial Credit Risks or otherwise, which is furnished by the (237) ...... 14.140 Federal Government directly, or indi- *Community Development Block Grants/Enti- rectly through a State or local govern- tlement Grants ...... 14.218 *Community Development Block Grants/Small ment or a private entity, to eligible in- Cities Program (Small Cities) ...... 14.219 dividuals or to private suppliers of Section 312 Rehabilitation Loans (312) ...... 14.220 goods or services to such individuals, *Urban development action grants ...... 14.221 *Community Development Block Grants/ or is furnished to a State or local gov- State's Program ...... 14.228 ernment that provides to such individ- Section 221(d)(3) Mortgage Insurance for Mul- uals goods or services of a kind that is tifamily Rental Housing for Low and Mod- offered by private suppliers, and erate Income Families (Below Market Inter- est Rate) ...... 14.136 (ii) Are targeted to individuals in fi- Department of Labor: nancial need; either (A) in order to be Senior Community Service Employment Pro- eligible, individuals must establish gram (SCSEP) ...... 17.235 Office of Personnel Management: that their income or wealth is below Federal Employment for Disadvantaged some maximum level, or, with respect YouthÐPart-Time (Stay-in-School Program) 27.003 to certain loan or loan guarantee pro- Federal Employment for Disadvantaged grams, that they are unable to obtain YouthÐSummer (Summer Aides) ...... 27.004 Small Business Administration: financing from alternative sources, or Small Business Loans (7(a) Loans) ...... 59.012 at prevailing interest rates, or at rates Department of Energy: that would permit the achievement of Weatherization Assistance for Low-Income Persons ...... 81.042 program goals, or (B) distribution of Department of Education: assistance is directed, geographically Patricia Roberts Harris Fellowships (Graduate or otherwise, in a way that is intended and Professional Study; Graduate and Pro- fessional Study Opportunity Fellowships; to primarily benefit persons in finan- Public Service Education Fellowships) ...... 84.094 cial need, as evidenced by references to Legal Training for the Disadvantaged (The such intent in the authorizing legisla- American Bar Association Fund for Public tion. Education) ...... 84.136 Allen J. Ellender Fellowship Program (Ellender (c) The programs of Federal financial Fellowship) ...... 84.148 assistance referred to in § 245a.5(a) are Legal Services Corporation: those identified in the list set forth Payments to Legal Services Corporation ...... below. The General Services Adminis- tration (GSA) Program Numbers set [54 FR 29437, July 12, 1989, as amended at 54 forth in the right column of the pro- FR 49964, Dec. 4, 1989] gram list refer to the program identification numbers used in the Catalog of PART 246—RESCISSION OF Federal Domestic Assistance, pub- ADJUSTMENT OF STATUS lished by the United States General Services Administration, as updated Sec. through December, 1986. 246.1 Notice. 246.2 Allegations admitted; no answer filed; GSA no hearing requested. Program Num- 246.3 Allegations contested or denied; hear- bers ing requested. 246.4 Special inquiry officer’s authority; Department of Agriculture: withdrawal and substitution. Farm Operating Loans ...... 10.406 246.5 Hearing. Farm Ownership Loans ...... 10.407 Department of Health and Human Services: 246.6 Decision and order. Assistance PaymentsÐMaintenance Assist- 246.7 Appeals. ance (Maintenance Assistance; Emergency 246.8 Reopening or reconsideration. Assistance; State Aid; Aid to Families with 246.9 Surrender of Form I–151 or I–551. Dependent Children) ...... 13.780 Low-Income Home Energy Assistance ...... 13.789 AUTHORITY: 8 U.S.C. 1103, 1254, 1255, 1256, *Community Services Block Grant ...... 13.792 1259.

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SOURCE: 27 FR 10789, Nov. 6, 1962, unless ing is requested within such period, otherwise noted. and the status of that of a permanent resident was acquired through adjust- § 246.1 Notice. ment of status under section 245 or 249 If it appears to a district director of the Immigration and Nationality that a person residing in his district Act, the district director shall rescind was not in fact eligible for the adjust- the adjustment of status previously ment of status made in his case, a pro- granted, and no appeal shall lie from ceeding shall be commenced by the per- his decision. sonal service upon such person of a notice of intention to rescind which shall § 246.3 Allegations contested or de- inform him of the allegations upon nied; hearing requested. which it is intended to rescind the ad- If, within the prescribed time follow- justment of his status. In such a pro- ing service of the notice pursuant to ceeding the person shall be known as § 246.1, the respondent has filed an an- the respondent. The notice shall also swer which contests or denies any alle- inform the respondent that he may gation in the notice, or a hearing is re- submit, within thirty days from the quested, a hearing pursuant to § 246.5 date of service of the notice, an answer shall be conducted by a special inquiry in writing under oath setting forth rea- officer and the procedures specified in sons why such rescission shall not be §§ 242.10, 242.11, 242.12, 242.13, 242.14 (c), made, and that he may, within such pe- (d) and (e), and 242.15 of this chapter riod, request a hearing before a special shall apply. inquiry officer in support of, or in lieu [29 FR 13243, Sept. 24, 1964] of his written answer. The respondent shall further be informed that he may § 246.4 Special inquiry officer’s author- have the assistance of or be rep- ity; withdrawal and substitution. resented by counsel or representative In any proceeding conducted under of his choice qualified under part 292 of this part, the special inquiry officer this chapter, without expense of the shall have authority to interrogate, ex- Government, in the preparation of his amine, and cross-examine the respond- answer or in connection with his hear- ent and other witnesses, to present and ing, and that he may present such evi- receive evidence, to determine whether dence in his behalf as may be relevant adjustment of status shall be re- to the rescission. scinded, to make decisions thereon, in- [28 FR 6737, June 29, 1963, as amended at 37 cluding an appropriate order, and to FR 11471, June 8, 1972] take any other action consistent with applicable provisions of law and regula- § 246.2 Allegations admitted; no an- tions as may be appropriate to the dis- swer filed; no hearing requested. position of the case. Nothing contained If the answer admits all the allega- in this part shall be construed to ditions in the notice, or if no answer is minish the authority conferred on spe- filed within the thirty-day period, or if cial inquiry officers by the Act. The no hearing is requested within such pe- special inquiry officer assigned to con- riod, and the status of that of a perma- duct a hearing shall, at any time, with- nent resident was acquired through draw if he deems himself disqualified. suspension of deportation under sec- If a hearing has begun but no evidence tion 19(c) of the Immigration Act of has been adduced other than the notice February 5, 1917, or under section 244 of and answer, if any, pursuant to §§ 246.1 the Immigration and Nationality Act, and 246.2, or if a special inquiry officer the district director shall forward the becomes unavailable to complete his respondent’s file containing a copy of duties within a reasonable time, or if the notice and the answer, if any, to at any time the respondent consents to the regional commissioner for further a substitution, another special inquiry action in accordance with section 246 of officer may be assigned to complete the Immigration and Nationality Act. the case. The new special inquiry offi- If the answer admits the allegations in cer shall familiarize himself with the the notice, or if no answer is filed with- record in the case and shall state for in the thirty-day period, or if no hear- the record that he has done so.

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§ 246.5 Hearing. when a determination of rescission is (a) Trial attorney. The Government based on the respondent’s admissions shall be represented at the hearing by pursuant to § 246.5(c), the decision shall a trial attorney who shall have author- include a discussion of the evidence ity to present evidence, and to interro- and findings as to rescission. The for- gate, examine, and cross-examine the mal enumeration of findings is not re- respondent and other witnesses. The quired. The order shall direct either trial attorney is authorized to appeal that the proceeding be terminated or from a decision of the special inquiry that the adjustment of status be re- officer pursuant to § 246.7 and to move scinded. If status was adjusted through for reopening or reconsideration pursu- suspension of deportation, the rescis- ant to § 246.8. sion order shall further provide that (b) Opening. The special inquiry offi- the matter be referred to Congress pur- cer shall advise the respondent of the suant to section 246 of the Immigration nature of the proceeding and the legal and Nationality Act. Service of the de- authority under which it is conducted; cision and finality of the order of the advise the respondent of his right to special inquiry officer shall be in ac- representation, at no expense to the cordance with, and as stated in §§ 242.19 Government, by counsel of his own (a) and (b) and 242.20 of this chapter. choice qualified under part 292 of this § 246.7 Appeals. chapter and require him to state then and there whether he desires represen- Pursuant to part 3 of this chapter, an tation; advise the respondent that he appeal shall lie from a decision of an will have a reasonable opportunity to Immigration Judge under this part to examine and object to the evidence the Board of Immigration Appeals. An against him, to present evidence in his appeal shall be taken within 30 days own behalf, and to cross-examine wit- after the mailing of a written decision nesses presented by the Government; or the stating of an oral decision. The place the respondent under oath; read reasons for the appeal shall be specifi- the allegations in the notice to the re- cally identified in the Notice of Appeal spondent and explain them in nontech- (Form EOIR–26); failure to do so may nical language, and enter the notice constitute a ground for dismissal of the and respondent’s answer, if any, as ex- appeal by the Board. hibits in the record. [61 FR 18910, Apr. 29, 1996; 61 FR 32924, June (c) Pleading by respondent. The special 26, 1996] inquiry officer shall require the respondent to state for the record wheth- § 246.8 Reopening or reconsideration. er he admits or denies the allegations Except as otherwise provided in this contained in the notice, or any of section, a motion to reopen or recon- them, and whether he concedes that his sider shall be subject to the require- adjustment of status should be re- ments of § 103.5 of this chapter. The scinded. If the respondent admits all of special inquiry officer may upon his the allegations and concedes that the own motion, or upon motion of the adjustment of status in his case should trial attorney or the respondent, re- be rescinded under the allegations set open or reconsider any case in which he forth in the notice, and the special in- has made a decision, unless jurisdiction quiry officer is satisfied that no issues in the case is vested in the Board under of law or fact remain, he may deter- part 3 of this chapter. A motion to re- mine that rescission as alleged has open will not be granted by a special been established by the respondent’s inquiry officer unless he is satisfied admissions. The allegations contained that evidence sought to be offered is in the notice shall be taken as admit- material and was not available and ted when the respondent, without rea- could not have been discovered or pre- sonable cause, fails or refuses to attend sented at the hearing. or remain in attendance at the hearing. § 246.9 Surrender of Form I–151 or I– § 246.6 Decision and order. 551. The decision of the special inquiry A respondent whose status as a per- officer may be oral or written. Except manent resident has been rescinded in

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accordance with section 246 of the Im- Rights, Privileges, Exemptions and Im- migration and Nationality Act and this munities) and, if a French national re- part, shall, upon demand, promptly ceiving salary from the French Repub- surrender to the district director hav- lic, Form I–508F (election as to tax ex- ing administrative jurisdiction over emption under the Convention between the office in which the action under the United States and the French Re- this part was taken, the Form I–151 or public), within 10 days after service of I–551 issued to him at the time of the the notice, or the alien, within such 10- grant of permanent resident status. day period, files with the district director a written answer under oath setting [27 FR 10789, Nov. 6, 1962, as amended at 45 forth reasons why his status should not FR 32657, May 19, 1980] be adjusted. The notice shall also advise the person that he may, within PART 247—ADJUSTMENT OF STATUS such period and upon his request have OF CERTAIN RESIDENT ALIENS an opportunity to appear in person, in support or in lieu of his written an- Sec. swer, before an immigration officer 247.1 Scope of part. designated for that purpose. The person 247.11 Notice. shall further be advised that he may 247.12 Disposition of case. have the assistance of counsel without 247.13 Disposition of Form I–508. 247.14 Surrender of documents. expense to the Government of the Unit- ed States in the preparation of his an- AUTHORITY: Secs. 101, 103, 247, 66 Stat. 166, swer or in connection with such per- 173, 218; 8 U.S.C. 1101, 1103, 1257. sonal appearance, and may examine § 247.1 Scope of part. the evidence upon which it is proposed to base such adjustment. The provisions of this part apply to an alien who is lawfully admitted for [22 FR 9801, Dec. 6, 1957, as amended at 37 FR permanent residence and has an occu- 11471, June 8, 1972] pational status which, if he were seek- § 247.12 Disposition of case. ing admission to the United States, would entitle him to a nonimmigrant (a) Allegations admitted or no answer status under paragraph (15)(A) or filed. If the waiver Form I–508 and, if (15)(G) of section 101(a) of the Act, and applicable, Form I–508F is not filed by to his immediate family; also, an alien the alien within the time prescribed, who was lawfully admitted for perma- and the answer admits the allegations nent residence and has an occupational in the notice, or no answer is filed, the status which, if he were seeking admis- district director shall place a notation sion to the United States, would enti- on the notice describing the alien’s ad- tle him to a nonimmigrant status justed nonimmigrant status and shall under paragraph (15)(E) of section cause a set of Forms I–94 to be prepared 101(a) of the Act, and to his spouse and evidencing the nonimmigrant classi- children. fication to which the alien has been adjusted and no appeal shall lie from such [22 FR 9801, Dec. 6, 1957] decision. Form I–94A shall be delivered to the alien and shall constitute notice § 247.11 Notice. to him of such adjustment. The alien’s If it appears to a district director nonimmigrant status shall be for such that an alien residing in his district, time, under such conditions, and sub- who was lawfully admitted for perma- ject to such regulations as are applica- nent residence, has an occupational ble to the particular nonimmigrant status described in section 247 of the status granted and shall be subject to Act, he shall cause a notice on Form I– such other terms and conditions, in- 509 to be served on such alien by per- cluding the exaction of bond as the dis- sonal service informing him that it is trict director may deem appropriate. proposed to adjust his status, unless (b) Answer filed; personal appearance. the alien requests that he be permitted Upon receipt of an answer asserting a to retain his status as a resident alien defense to the allegations made in the and executes and files with such dis- notice without requesting a personal trict director a Form I–508 (Waiver of appearance, or if a personal appearance

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is requested or directed, the case shall § 247.13 Disposition of Form I–508. be assigned to an immigration officer. If Form I–508 is executed and filed, Pertinent evidence, including testi- the duplicate copy thereof (noted to mony of witnesses, shall be incor- show the election made on Form I– porated in the record. The immigration 508F, if applicable) shall be filed in the officer shall prepare a report summa- office of the Assistant Commissioner, rizing the evidence and containing his Administrative Division, and may be findings and recommendation. The made available for inspection by any record, including the report and rec- interested officer or agency of the ommendation of the immigration offi- United States. cer, shall be forwarded to the district director who caused the notice to be [35 FR 13829, Sept. 1, 1970] served. The district director shall note § 247.14 Surrender of documents. on the report of the immigration officer whether he approves or disapproves An alien whose status as a perma- the recommendation of the immigra- nent resident has been adjusted to that tion officer. If the decision of the dis- of a nonimmigrant in accordance with section 247 of the Act and this part, trict director is that the matter be ter- shall, upon demand, promptly surren- minated, the alien shall be informed of der to the district director having ad- such decision. If the decision of the dis- ministrative jurisdiction over the of- trict director is that the status of the fice in which the action under this part alien should be adjusted to that of a was taken any documents (such as nonimmigrant, his decision shall pro- Form I–151 or I–551 or any other form of vide that unless the alien, within 10 alien-registration receipt card, immi- days of receipt of notification of such grant identification card, resident decision, requests permission to retain alien’s border-crossing identification his status as an immigrant and files card (Form I–187), certificate of reg- with the district director Form I–508 istry, or certificate of lawful entry) in and, if applicable, Form I–508F, the his possession evidencing his former alien’s immigrant status be adjusted to permanent resident status. that of a nonimmigrant. The alien [22 FR 9802, Dec. 6, 1957, as amended at 45 FR shall be informed of such decision and 32657, May 19, 1980] of the reasons therefor, and of his right to appeal in accordance with the provisions of part 103 of this chapter. If the PART 248—CHANGE OF alien does not request that he be per- NONIMMIGRANT CLASSIFICATION mitted to retain status and file the Sec. Form I–508 and, if applicable, Form I– 248.1 Eligibility. 508F within the period provided there- 248.2 Ineligible classes. for, the district director, without fur- 248.3 Application. ther notice to the alien, shall cause a set of Forms I–94 to be prepared evi- AUTHORITY: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2. dencing the nonimmigrant classification to which the alien has been adjusted. Form I–94A shall be delivered to § 248.1 Eligibility. the alien. The alien’s nonimmigrant (a) General. Except for those classes status shall be for such time, under enumerated in § 248.2, any alien law- such conditions, and subject to such fully admitted to the United States as regulations as are applicable to the a nonimmigrant, including an alien particular nonimmigrant status cre- who acquired such status pursuant to ated and shall be subject to such other section 247 of the Act, who is continu- terms and conditions, including the ex- ing to maintain his nonimmigrant sta- action of bond, as the district director tus, may apply to have his non- may deem appropriate. immigrant classification changed to any nonimmigrant classification other [22 FR 9801, Dec. 6, 1957, as amended at 23 FR than that of a fiancee or fiance under 9124, Nov. 26, 1958; 35 FR 13829, Sept. 1, 1970] section 101(a)(15)(K) of the Act, or as an

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alien in transit under section under section 101(a)(15)(H) of the Act if 101(a)(15)(C) of the Act. the education or training which the (b) Timely filing and maintenance of student received while an M–1 student status. A change of status may not be enables the student to meet the quali- approved for an alien who failed to fications for temporary worker classi- maintain the previously accorded sta- fication under section 101(a)(15)(H) of tus or whose status expired before the the Act. application or petition was filed, ex- (e) Change of nonimmigrant classifica- cept that failure to file before the pe- tion to that as described in section riod of previously authorized status ex- 101(a)(15)(N). An application for change pired may be excused in the discretion to N status shall not be denied on the of the Service, and without separate grounds the applicant is an intending application, where it is demonstrated immigrant. Change of status shall be at the time of filing that: granted for three years not to exceed (1) The failure to file a timely appli- termination of eligibility under section cation was due to extraordinary cir- 101(a)(15)(N) of the Act. Employment cumstances beyond the control of the authorization pursuant to section applicant or petitioner, and the Service 274(A) of the Act may be granted to an finds the delay commensurate with the alien accorded nonimmigrant status circumstances; under section 101(a)(15)(N) of the Act. (2) The alien has not otherwise vio- Employment authorization is auto- lated his or her nonimmigrant status; matically terminated when the alien (3) The alien remains a bona fide non- changes status or is no longer eligible immigrant; and for classification under section (4) The alien is not the subject of de- 101(a)(15)(N) of the Act. portation proceedings under 8 CFR part 242. [36 FR 9001, May 18, 1971, as amended at 48 (c) Change of nonimmigrant classifica- FR 14592, Apr. 5, 1983; 52 FR 11621, Apr. 10, 1987; 59 FR 1465, Jan. 11 1994] tion to that of a nonimmigrant student. A nonimmigrant applying for a change to § 248.2 Ineligible classes. classification as a student under sections 101(a)(15)(F)(i) or 101(a)(15)(M)(i) The following categories of aliens are of the Act is not considered ineligible not eligible to change their non- for such a change solely because the immigrant status under section 248 of applicant may have started attendance the Act: at school before the application was (a) Any alien in immediate and con- submitted. The district director shall tinuous transit through the United deny an application for a change to States without a visa; classification as a student under sec- (b) Any alien classified as a non- tion 101(a)(15)(M)(i) of the Act if the ap- immigrant under section 101(a)(15) (C), plicant intends to pursue the course of (D), (K), or (S) of the Act; study solely in order to qualify for a (c) Any alien admitted as a non- subsequent change of nonimmigrant immigrant under section 101(a)(15)(J) classification to that of an alien tem- of the Act, or who acquired such status porary worker under section after admission in order to receive 101(a)(15)(H) of the Act. Furthermore, graduate medical education or train- an alien may not change from classi- ing, whether or not the alien was sub- fication as a student under section ject to, received a waiver of, or fulfilled 101(a)(15)(M)(i) of the Act to that of a the two-year foreign residence require- student under section 101(a)(15)(F)(i) of ment of section 212(e) of the Act. This the Act. restriction shall not apply when the (d) Application for change of non- alien is a foreign medical graduate who immigrant classification from that of a was granted a waiver under section student under section 101(a)(15)(M)(i) to 212(e)(iii) of the Act pursuant to a re- that described in section 101(a)(15)(H). A quest made by a State Department of district director shall deny an applica- Public Health (or its equivalent) under tion for change of nonimmigrant clas- Pub. L. 103–416, and the alien complies sification from that of an M–1 student with the terms and conditions imposed to that of an alien temporary worker on the waiver under section 214(k) of

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the Act and the implementing regula- apply for a change of status on Form I– tions at § 212.7(c)(9) of this chapter. A 539. The application must be filed with foreign medical graduate who was the fee required in § 103.7 of this chap- granted a waiver under Pub. L. 103–416 ter and any initial evidence specified in and who does not fulfill the requisite 3- the applicable provisions of § 214.2 of year employment contract or other- this chapter, and on the application wise comply with the terms and condi- form. More than one person may be in- tions imposed on the waiver is ineli- cluded in an application where the co- gible to apply for change of status to applicants are all members of a single any other nonimmigrant classification; family group and either all hold the and same nonimmigrant status or one (d) Any alien classified as a non- holds a nonimmigrant status and the immigrant under section 101(a)(15)(J) co-applicants are his or her spouse and/ of the Act (other than an alien de- or children who hold derivative non- scribed in paragraph (c) of this section) immigrant status based on the prin- who is subject to the foreign residence cipal’s nonimmigrant status. requirement of section 212(e) of the Act (c) Special provisions for change of non- and who has not received a waiver of immigrant classification to, or from, a po- the residence requirement, except sition classified under section 101(a)(15) when the alien applies to change to a (A) or (G) of the Act. Each application classification under section for change of nonimmigrant classifica- 101(a)(15)(A) or (G) of the Act. tion to, or from, a position classified (e) Any alien admitted as a visitor under section 101(a)(15)(A) or (G) must under the visa waiver provisions of be filed on Form I–539 and be accom- § 212.1(e) of this chapter. panied by a Form I–566, completed and (f) Any alien admitted as a Visa endorsed in accordance with the in- Waiver Pilot Program visitor under the structions on that form. If the Depart- provisions of section 217 of the Act and ment of State recommends against the part 217 of this chapter. change, the application shall be denied. [47 FR 44238, Oct. 7, 1982, as amended at 48 FR An application for a change of classi- 41017, Sept. 13, 1983; 52 FR 48084, Dec. 18, 1987; fication by a principal alien in a posi- 53 FR 24903, June 30, 1988; 60 FR 26683, May tion classified A–1, A–2, G–1, G–2, G–3, 18, 1995; 60 FR 44271, Aug. 25, 1995] or G–4 shall be processed without fee. Members of the principal alien’s imme- § 248.3 Application. diate family who are included on the (a) Change of status on Form I–129. An principal alien’s application shall also employer seeking the services of an be processed without fee. alien as an E–1, E–2, H–1A, H–1B, H–2A, (d) [Reserved] H–2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, (e) Change of classification not re- Q, R–1, or TC nonimmigrant, must, quired. The following do not need to re- where the alien is already in the U.S. quest a change of classification: and does not currently hold such sta- (1) An alien classified as a visitor for tus, apply for a change of status on business under section 101(a)(15)(B) of Form I–129. The form must be filed the Act who intends to remain in the with the fee required in § 103.7 of this United States temporarily as a visitor chapter and the initial evidence speci- for pleasure during the period of au- fied in § 214.2 of this chapter and on the thorized admission; or petition form. Dependents holding de- (2) An alien classified under sections rivative status may be included in the 101(a)(15)(A) or 101(a)(15)(G) of the Act petition if the form is for only one as a member of the immediate family worker. In all other cases, dependents of a principal alien classified under the of the worker should file on Form I–539. same section, or an alien classified (b) Change of status on Form I–539. under section 101(a)(15) (E), (F), (H), (I), Any nonimmigrant who desires a (J), (L), or (M) of the Act as the spouse change of status to any nonimmigrant or child who accompanied or followed classification, other than those listed to join a principal alien who is classi- in paragraph (a) of this section, or to fied under the same section, to attend E–1 or E–2 classification as the spouse school in the United States, as long as or child of a principal E–1 or E–2, must the immediate family member, spouse

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or child continues to be qualified for (2) In the event the Commissioner de- and maintains the status under which cides to deny an application to change the family member, spouse or child is nonimmigrant classification to S non- classified. immigrant classification, the Assistant (f) Approval of application. If the ap- Attorney General, Criminal Division, plication is granted, the applicant shall and the relevant LEA shall be notified be notified of the decision and granted in writing to that effect. The Assistant a new period of time to remain in the Attorney General, Criminal Division, United States without the requirement shall concur in or object to that deci- of filing a separate application and sion. Unless the Assistant Attorney paying a separate fee for an extension General, Criminal Division, objects of stay. The applicant’s nonimmigrant within 7 days, he or she shall be status under his new classification deemed to have concurred in the deci- shall be subject to the terms and condi- sion. In the event of an objection by tions applicable generally to such clas- the Assistant Attorney General, Crimi- sification and to such other additional nal Division, the matter will be expedi- terms and conditions, including exac- tiously referred to the Deputy Attor- tion of bond, which the district direc- ney General for a final resolution. In tor deems appropriate to the case. no circumstances shall the alien or the (g) Denial of application. When the ap- relevant LEA have a right of appeal plication is denied, the applicant shall from any decision to deny. be notified of the decision and the rea- [36 FR 9001, May 18, 1971, as amended at 48 sons for the denial. There is no appeal FR 14593, Apr. 5, 1983; 48 FR 41017, Sept. 13, from the denial of the application 1983; 48 FR 44763, Sept. 30, 1983; 50 FR 25697, under this chapter. June 21, 1985; 59 FR 1466, Jan. 11, 1994; 60 FR 44271, Aug. 25, 1995] (h) Change to S nonimmigrant classification. An eligible state or federal law enforcement agency (‘‘LEA’’), which PART 249—CREATION OF RECORDS shall include a state or federal court or OF LAWFUL ADMISSION FOR PER- a United States Attorney’s Office, may MANENT RESIDENCE seek to change the nonimmigrant classification of a nonimmigrant lawfully Sec. admitted to the United States, except 249.1 Waiver of inadmissibility. those enumerated in § 248.2 of this 249.2 Application. chapter, to that of an alien witness or 249.3 Reopening and reconsideration. informant pursuant to section AUTHORITY: Secs. 103, 212, 249, 66 Stat. 173, 101(a)(15)(S) of the Act by filing with 182, as amended, 219, as amended; 8 U.S.C. the Assistant Attorney General, Crimi- 1103, 1182, 1259. nal Division, Form I–539, Application § 249.1 Waiver of inadmissibility. to Extend/Change Nonimmigrant Sta- tus, with the appropriate fee, and Form In conjunction with an application I–854, Inter-Agency Alien Witness and under section 249 of the Act, an other- Informant Record, with attachments wise eligible alien who is inadmissible establishing eligibility for the change under paragraph (9), (10), or (12) of sec- of nonimmigrant classification. tion 212(a) of the Act or so much of (1) If the Assistant Attorney General, paragraph (23) of section 212(a) of the Criminal Division, certifies the request Act as relates to a single offense of for S nonimmigrant classification in simple possession of 30 grams or less of accordance with the procedures set marihuana may request a waiver of forth in 8 CFR 214.2(t), the Assistant such ground of inadmissibility under Attorney General shall forward the section 212(h) of the Act. Any alien LEA’s request on Form I–854 with within the classes described in subpara- Form I–539 to the Commissioner. No re- graphs (B) through (H) of section quest for change of nonimmigrant clas- 212(a)(28) of the Act may apply for the sification to S classification may pro- benefits of section 212(a)(28)(I)(ii) in conjunction with an application under ceed to the Commissioner unless it has section 249 of the Act. first been certified by the Assistant At- torney General, Criminal Division. [47 FR 44238, Oct. 7, 1982]

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§ 249.2 Application. § 249.3 Reopening and reconsideration. (a) Jurisdiction. An application by an alien who has been served with an An applicant who alleged entry and order to show cause or warrant of ar- residence since prior to July 1, 1924, rest shall be considered only in pro- but in whose case a record was created ceedings under part 242 of this chapter. as of the date of approval of the appli- In any other case, an alien who be- cation because evidence of continuous lieves he or she meets the eligibility residence prior to July 1, 1924, was not requirements of section 249 of the Act submitted, may have his case reopened and reconsidered pursuant to § 103.5 of shall apply to the district director hav- this chapter. Upon the submission of ing jurisdiction over his or her place of satisfactory evidence, a record of ad- residence. The application shall be mission as of the date of alleged entry made on Form I–485 and shall be ac- may be created. companied by Form G–325A, which shall be considered part of the applica- [29 FR 11494, Aug. 11, 1964] tion. The application shall also be accompanied by documentary evidence PART 250—REMOVAL OF ALIENS establishing continuous residence in WHO HAVE FALLEN INTO DISTRESS the United States since prior to Janu- ary 1, 1972, or since entry and prior to Sec. July 1, 1924. All documents must be 250.1 Application. submitted in accordance with § 103.2(b) 250.2 Removal authorization. of this chapter. Documentary evidence AUTHORITY: Secs. 103, 250, 66 Stat. 173, 219; may include any records of official or 8 U.S.C. 1103, 1260. personal transactions or recordings of events occurring during the period of § 250.1 Application. claimed residence. Affidavits of credi- Application for removal shall be ble witnesses may also be accepted. made on Form I–243. No appeal shall lie Persons unemployed and unable to fur- from the decision of the district direc- nish evidence in their own names may tor. furnish evidence in the names of parents or other persons with whom they [22 FR 9802, Dec. 6, 1957] have been living, if affidavits of the § 250.2 Removal authorization. parents or other persons are submitted attesting to the residence. The numeri- If the district director grants the ap- cal limitations of sections 201 and 202 plication he shall issue an authoriza- of the Act shall not apply. tion for the alien’s removal on Form I– (b) Decision. The applicant shall be 202. Upon issuance of the authoriza- notified of the decision and, if the ap- tion, or as soon thereafter as prac- plication is denied, of the reasons ticable, the alien may be removed from the United States at government ex- therefor. If the application is granted, pense. a Form I–551, showing that the applicant has acquired the status of an alien [22 FR 9802, Dec. 6, 1957] lawfully admitted for permanent residence, shall not be issued until the ap- PART 251—ARRIVAL MANIFESTS plicant surrenders any other document AND LISTS: SUPPORTING DOCU- in his or her possession evidencing MENTS compliance with the alien registration requirements of former or existing law. Sec. No appeal shall lie from the denial of 251.1 Arrival manifests and lists. an application by the district director, 251.2 Notification of illegal landings. but such denial shall be without preju- 251.3 Departure manifests and lists for ves- dice to the alien’s right to renew the sels. application in proceedings under part 251.4 Departure manifests and lists for air- 242 of this chapter. craft. 251.5 Exemptions for private vessels and air- [52 FR 6322, Mar. 3, 1987] craft.

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AUTHORITY: 8 U.S.C. 1103, 1182, 1221, 1281, the vessel’s dry bulk cargo is hazardous 1282. and shall show the immigration officer the dangerous cargo manifest which is § 251.1 Arrival manifests and lists. signed by the master or an authorized (a) Vessels—(1) General. The master or representative of the owner, and which agent of every vessel arriving in the under 46 CFR 148.02 must be kept in a United States from a foreign place or conspicuous place near the bridge an outlying possession of the United house. States shall present to the immigra- (iv) If longshore work will be per- tion officer at the port where the im- formed under the prevailing practice migration inspection is performed a exception, the master or agent shall manifest of all crewmen on board on note on the manifest each port at Form I–418, Passenger List-Crew List, which longshore work will be per- in accordance with the instructions formed under this exception. Addition- contained thereon. ally, for each port the master or agent (2) Longshore work notations. The shall note either that: master of the vessel or his or her agent (A) The practice of nonimmigrant shall indicate in writing immediately crewmen doing longshore work is in ac- below the name of the last alien listed cordance with all collective bargaining on the Form I–418 whether or not D agreements covering 30 percent or crewmen aboard the vessel will be used more of the longshore workers in the to perform longshore work at any Unit- port; ed States port before the vessel departs (B) The port has no collective bar- the United States. gaining agreement covering 30 percent (i) If no longshore work will be per- or more of the longshore workers in formed, no further notation regarding the port and an attestation has been longshore work is required. filed with the Secretary of Labor; (ii) If longshore work will be per- (C) An attestation that was pre- formed, the master or agent shall note viously filed is still valid and the ves- which exception listed in section 258 of sel continues to comply with the condi- the Act permits the work. The exceptions stated in that attestation; or tions are: (D) The longshore work consists of (A) The hazardous cargo exception; operating an automated, self-unloading (B) The prevailing practice exception conveyor belt or a vacuum-actuated in accordance with a port’s collective system. bargaining agreements; (v) If longshore work will be per- (C) The prevailing practice exception formed under the reciprocity excep- at a port where there is no collective tion, the master or agent shall note on bargaining agreement, but for which the manifest that the work will be the vessel files an attestation; done under the reciprocity exception, (D) The prevailing practice exception and will note the nationality of the for automated vessels; and vessel’s registry and the nationality or (E) The reciprocity exception. nationalities of the holders of a major- (iii) If longshore work will be per- ity of the ownership interest in the formed under the hazardous cargo ex- vessel. ception, the vessel must either be a (vi) Notations for Great Lakes vessels. tanker or be transporting dry bulk (A) A manifest shall not be required for cargo that qualifies as hazardous. All a vessel of United States, Canadian, or tankers qualify for the hazardous cargo British registry engaged solely in traf- exception, except for a tanker that has fic on the Great Lakes or the St. Law- been gas-freed to load non-hazardous rence River and connecting waterways, dry bulk commodities. herein designated as a Great Lakes ves- (A) To invoke the exception for tank- sel, unless nonimmigrant crewmen in- ers, the master or agent shall note on tend to do longshore work at a port in the manifest that the vessel is a quali- the United States. fying tanker. (B) If nonimmigrant crewmen will do (B) If the vessel is transporting dry longshore work, the master of agent of bulk hazardous cargo, the master or the vessel shall note on the manifest agent shall note on the manifest that which exception in section 258 of the

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Act permits the work and any other States port pursuant to § 235.1(d)(7) of notations described in paragraphs this part must annotate the manifest (a)(2)(ii) through (a)(2)(v) of this sec- to indicate the time, date and place of tion required by the exception invoked. refueling. The surname, given name, (C) A manifest shall be required for and middle initial of each alien crew- crewmen of other than United States, man listed also shall be shown on the Canadian, or British citizenship and manifest. In addition, the captain or shall contain the same information re- agent of the aircraft shall indicate in garding longshore work as is required writing immediately below the name of of other vessels. the last alien listed on the Form or (D) After submission of a manifest on Declaration, the number of United the first voyage of a calendar year, a States citizen crewmen on board, if manifest shall not be required on sub- any. If there are no alien crewmen sequent arrivals unless a non- aboard, the captain or agent shall indi- immigrant crewman of other than Ca- cate in writing on the Form or Dec- nadian or British citizenship is em- laration the number of United States ployed on the vessel who was not citizen crewmen, followed by a state- aboard and listed on the last prior ment that there are no alien crewmen. manifest, or a change has occurred re- (c) Additional documents. The master, garding the performance of longshore captain, or agent shall prepare as a work in the United States by non- part of the manifest, when one is re- immigrant crewmen, or a change has quired for presentation to an immigra- occurred in the exception that the mas- tion officer, a completely executed set ter or agent of the vessel wishes to in- of Forms I–95 for each alien crewman voke which was not noted on the last on board, except: (1) An alien immi- prior manifest. grant crewman in possession of a valid (3) The master or agent of a vessel immigrant visa, reentry permit, or that only bunkers at a United States alien registration receipt card on or I– port pursuant to 8 CFR 235.1(d)(7) shall 551; annotate Form I–418 to indicate the (2) a Canadian or British citizen time, date, and place of bunkering. crewman serving on a vessel plying (4) If documentation is required to solely between Canada and the United support an exception, as described in 8 States; or CFR 258.2, it must accompany the (3) a crewman seeking conditional manifest. landing privileges under section (b) Aircraft. The captain or agent of 252(a)(1) of the Act who is in possession every aircraft arriving in the United of an unmutilated alien crewman land- States from a foreign place or from an ing permit and identification card outlying possession of the United (Form I–184) or an unmutilated condi- States, except an aircraft arriving in tional landing permit (Form I–95) with the United States directly from Canada space for additional endorsements pre- on a flight originating in that country, viously issued to him or her as a mem- shall present to the immigration offi- ber of the crew of the same vessel or an cer at the port where the inspection is aircraft of the same line on his or her performed a manifest on the Bureau of last prior arrival in the United States, Customs Form 7507 or on the Inter- following which he or she departed national Civil Aviation Organization’s from the United States as a member of General Declaration of all the alien the crew of the same vessel or an air- crewmembers on board, including alien craft of the same line. crewmembers who are returning to the (d) Immigration officer notations on ar- United States after taking an aircraft rival manifests. (1) Upon completion of of the same line from the United States the examination of each crewman list- to a foreign place or alien crew- ed on the Form I–418 presented by the members who are entering the United master or agent of an arriving vessel, States as passengers solely for the pur- the immigration officer shall place one pose of taking an aircraft of the same of the following symbols in column (5) line from the United States to a for- of the Form I–418 opposite the name of eign port. The captain or agent of an the crewman: ‘‘USC’’ for a crewman ad- aircraft that only refuels at the United mitted as a United States citizen;

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‘‘RP’’ or ‘‘ARC’’ to indicate respec- man, and furnish any other informa- tively the presentation of a reentry tion and documents which might aid in permit or an alien registration receipt his apprehension, including any pass- card, Form I–151 or I–551, for a crew- port surrendered pursuant to § 252.1(d) man admitted as a lawful permanent of this chapter. Failure to file notice of resident; ‘‘D–1’’ for an alien crewman illegal landing or desertion and to fur- granted a conditional landing permit nish any surrendered passport within 24 under section 252(a)(1) of the Act; ‘‘D– hours of the time of such landing or de- 2’’ for an alien crewman granted a con- sertion becomes known shall be re- ditional landing permit under section garded as lack of compliance with sec- 252(a)(2) of the Act; ‘‘Parolee’’ for an tion 251(d) of the Act. alien crewman paroled pursuant to sec- [28 FR 209, Jan. 9, 1963] tion 212(d)(5) of the Act; and ‘‘Refused’’ for a nonimmigrant crewman whose re- § 251.3 Departure manifests and lists quest for a landing permit has been re- for vessels. fused. (a) Form I–418, Crew List. The master (2) The immigration officer shall or agent of every vessel departing from note on the Form I–410, Receipt for the United States shall submit to the Crew List, whether or not non- immigration officer at the port from immigrant crewmen will perform which such vessel is to depart directly longshore work in the United States, to some foreign place or outlying pos- and if so: session of the United States, except (i) Under which exception in section when a manifest is not required pursu- 258 of the Act it will be performed; and ant to § 251.1(a), a single Form I–418, (ii) What type of documentation ac- Crew List, completed in accordance companied the manifest to support the with the instructions contained herein. exception invoked. Every item in the heading of the Form (3) The examining immigration offi- I–418 must be completed and the follow- cer shall sign his or her name, title, ing endorsement shall be placed on the and the date of the inspection follow- first line of the form: ‘‘Arrival Crew ing the last entry on the Form I–418. List, Form I–418, filed at (show United The master of the vessel shall be fur- States port of entry).’’ Submission of a nished Form I–410 as a receipt for the Form I–418 which lacks that endorse- Form I–418 arrival manifest, and the ment or which lacks other essential in- immigration officer shall list on the formation shall be regarded as lack of Form I–410 both the information re- compliance with section 251(c) of the garding longshore work described in 8 Act. CFR 251.1(a)(2) and the names of all (b) Added crewmen. Under a heading crewmen who have been refused condi- ‘‘Added Crewmen,’’ list the names of tional landing permits. all nonresident alien crewmen who were not members of the crew and [30 FR 6777, May 19, 1965, as amended at 32 FR 9632, July 4, 1967; 34 FR 12560, Aug. 1, 1969; manifested on Form I–418 as such on 34 FR 19799, Dec. 18, 1969; 45 FR 32658, May 19, the occasion of the vessel’s last arrival 1980; 46 FR 43827, Sept. 1, 1981; 56 FR 26017, in the United States and attach for June 6, 1991; 57 FR 40833, Sept. 8, 1992; 58 FR each name on the list the Form I–95 or 48779, Sept. 20, 1993] Form I–94 given to the alien crewman when he last arrived in the United § 251.2 Notification of illegal landings. States. If that form is unavailable, a As soon as discovered, the master or new Form I–95 shall be prepared and at- agent of any vessel from which an alien tached to the Form I–418. crewman has illegally landed or de- (c) Separated crewman. Under a head- serted in the United States shall in- ing ‘‘Separated Crewmen,’’ list the form the immigration officer in charge names of all alien crewmen, other than of the port where the illegal landing or alien permanent residents of the Unit- desertion occurred, in writing, of the ed States, who were listed on the arriv- name, nationality, passport number al Form I–418, as members of the crew and, if known, the personal description, on the occasion of the vessel’s last ar- circumstances and time of such illegal rival in the United States but who for landing or desertion of such alien crew- any reason are not departing with the

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vessel, and for each such separated citizen crewmen, followed by a state- crewman show his nationality, pass- ment that there are no alien crewmen. port number, specific port and date of (b) Notification of changes in employ- separation, and the reasons for failure ment for aircraft. The agent of the air to depart. If an application to pay off transportation line shall immediately or discharge an alien crewman has been notify in writing the nearest immigra- granted subsequent to the vessel’s ar- tion office of the termination of em- rival, the triplicate copy of the relat- ployment in the United States of each ing Form I–408 shall be attached to the alien employee of the line furnishing Form I–418. The list required by para- the name, birthdate, birthplace, na- graph (b) of this section and this para- tionality, passport number, and other graph may be incorporated in a single available information concerning such Form I–418, if space permits. The re- alien. The procedure to follow in ob- quired lists need not be submitted for taining permission to pay off or dis- Canadian or British citizen crewmen of charge an alien crewman in the United Great Lakes vessels. States after initial immigration in- (d) No changes in crew. When there spection, other than an alien lawfully are no added and separated crewmen as admitted for permanent residence, is described in this section, the Form I– set forth in § 252.1(h) of this chapter. 418 shall be endorsed with the notation [30 FR 6777, May 19, 1965, as amended at 33 ‘‘No changes in nonresident alien crew FR 17137, Nov. 19, 1968; 34 FR 12561, Aug. 1, upon departure.’’ 1969]

[30 FR 6777, May 19, 1965, as amended at 33 § 251.5 Exemptions for private vessels FR 17137, Nov. 19, 1968] and aircraft. § 251.4 Departure manifests and lists The provisions of this part relating for aircraft. to submission of arrival and departure manifests and lists shall not apply to a (a) Bureau of Customs Form 7507 or private vessel or a private aircraft not International Civil Aviation Organiza- engaged directly or indirectly in the tion’s General Declaration. The captain carriage of persons or cargo for hire. or agent of every aircraft departing from the United States for a foreign [32 FR 9632, July 4, 1967] place or an outlying possession of the United States, except an aircraft de- PART 252—LANDING OF ALIEN parting from the United States directly CREWMEN to Canada on a flight terminating in that country, shall submit to the im- Sec. migration officer at the port from 252.1 Examination of crewmen. which such aircraft is to depart on the 252.2 Revocation of conditional landing per- Bureau of Customs Form 7507 or on the mits; deportation. International Civil Aviation Organiza- 252.3 Great Lakes vessels and tugboats ar- tion’s General Declaration a list of all riving in the United States from Canada; alien crewmen on board, including special procedures. alien crewmen who arrived in the Unit- 252.4 Permanent landing permit and identi- ed States as crewmen on an aircraft of fication card. the same line and who are departing as 252.5 Special procedures for deserters from passengers. The surname, given name, Spanish or Greek ships of war. and middle initial of each such alien AUTHORITY: 8 U.S.C. 1103, 1184, 1258, 1281, crewman listed shall be shown. In addi- 1282. tion, the captain or agent of the aircraft shall indicate in writing imme- § 252.1 Examination of crewmen. diately below the name of the last (a) Detention prior to examination. All alien listed on such form or declara- persons employed in any capacity on tion, the number of U.S. citizen crew- board any vessel or aircraft arriving in men on board, if any. If there are no the United States shall be detained on alien crewmen aboard, the captain or board the vessel or at the airport of ar- agent shall indicate in writing on the rival by the master or agent of such form or declaration the number of U.S. vessel or aircraft until admitted or

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otherwise permitted to land by an offi- the vessel on which he arrived or on cer of the Service. another aircraft of the same transpor- (b) Classes of aliens subject to examina- tation line, and the crewman’s passport tion under this part. The examination of is surrendered for safe keeping to the every alien crewman arriving in the master of the arriving vessel, or (2) the United States shall be in accordance purpose of departing from the United with this part and not otherwise except States as a crewman on a vessel other that the following classes of persons than the one on which he arrived, or employed on vessels or aircraft shall be departing as a passenger by means of examined in accordance with the provi- other transportation, within a period sions of parts 235, 236, and 237 of this of 29 days, if the immigration officer is chapter: (1) Aliens in possession of an satisfied that the crewman intends to immigrant visa, reentry permit, or a depart in that manner, that definite ar- Form I–551 alien registration receipt rangements for such departure have card, applying for admission as immi- been made, and the immigration officer grants; (2) Canadian or British citizen has consented to the pay off or dis- crewmen serving on vessels plying sole- charge of the crewman from the vessel ly between Canada and the United on which he arrived. A crewman grant- States; or (3) Canadian or British citi- ed a conditional permit to land under zen crewmen of aircraft arriving in a section 252(a)(1) of the Act and para- State of the United States directly graph (d)(1) of this section is required from Canada on flights originating in to depart with his vessel from its port that country. The crew of a vessel ar- of arrival and from each other port in riving at a United States port which the United States to which it there- may not require inspection by or clear- after proceeds coastwise without ance from the Bureau of Customs is, touching at a foreign port or place; nevertheless, subject to examination however, he may rejoin his vessel at under this part; however, the master of another port in the United States be- such a vessel, is not required to present fore it touches at a foreign port or Form I–95 for any crewman who is not place if he has advance written permis- an applicant for a conditional landing sion from the master or agent to do so. permit. (e) Conditional permits to land. Unless (c) Requirements for admission. Every the crewman is in possession of Form alien crewman applying for landing I–184 and is landed under paragraph privileges in the United States must (d)(1) of this section, the immigration make his application in person before officer shall give to each alien non- an immigration officer, present what- immigrant crewman permitted to land ever documents are required, be photo- a copy of the Form I–95 presented by graphed and fingerprinted as the dis- the crewman, endorsed to show the trict director may require, and estab- date and place of admission and the lish to the satisfaction of the immigra- type of conditional landing permit. tion officer that he is not subject to ex- (f) Change of status. An alien non- clusion under any provision of the law immigrant crewman landed pursuant and is entitled clearly and beyond to the provisions of this part shall be doubt to landing privileges in the Unit- ineligible for any extension of stay or ed States. for a change of nonimmigrant classi- (d) Authorization to land. The immi- fication under part 248 of this chapter. gration officer in his discretion may A crewman admitted under paragraph grant an alien crewman authorization (d)(1) of this section may, if still main- to land temporarily in the United taining status, apply for a conditional States for: (1) Shore leave purposes landing permit under paragraph (d)(2) during the period of time the vessel or of this section. The application shall aircraft is in the port of arrival or not be approved unless an application other ports in the United States to on Form I–408, filed pursuant to para- which it proceeds directly without graph (h) of this section, has been ap- touching at a foreign port or place, not proved authorizing the master or agent exceeding 29 days in the aggregate, if of the vessel on which the crewman ar- the immigration officer is satisfied rived to pay off or discharge the crew- that the crewman intends to depart on man and unless evidence is presented

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by the master or agent of the vessel to vessel or aircraft is located at the time which the crewman will be transferred of application. The applicant shall be that a specified position on that vessel notified of the decision, and, if the ap- has been authorized for him or that plication is denied, of the reasons satisfactory arrangements have been therefor. There shall be no appeal from completed for the repatriation of the the denial of an application on Form I– alien crewman. If the application is ap- 408. proved, the crewman shall be given a [23 FR 2788, Apr. 26, 1958, as amended at 27 new Form I–95 endorsed to show land- FR 11875, Dec. 1, 1962; 29 FR 13243, Sept. 24, ing authorized under paragraph (d)(2) 1964; 29 FR 14432, Oct. 21, 1964; 32 FR 9633, of this section for the period necessary July 4, 1967; 33 FR 9332, June 26, 1968; 33 FR to accomplish his scheduled reship- 17137, Nov. 19, 1968; 58 FR 48779, Sept. 20, 1993] ment, which shall not exceed 29 days from the date of his landing, upon sur- § 252.2 Revocation of conditional landing permits; deportation. rendering any conditional landing permit previously issued to him on Form An alien permitted to land condi- I–95. tionally under § 252.1(d)(1) may, within (g) Refusal of conditional landing per- the period of time for which he was mit. When an alien crewman is refused permitted to land, be taken into cus- a conditional landing permit for any tody by any immigration officer with- reason, the Form I–95 presented by him out a warrant of arrest and be trans- at time of examination shall be en- ferred to the vessel upon which he ar- dorsed ‘‘Permission to land tempo- rived in the United States, if such ves- rarily at all U.S. ports is refused’’ and sel is in any port of the United States the Form I–95 shall be given to the and has not been in a foreign port or master or agent of the vessel or air- place since the crewman was issued his craft and, in the case of vessels, the condition landing permit, upon a deter- alien crewman’s name shall be listed mination by the immigration officer on the Form I–410 delivered to the mas- that the alien crewman is not a bona ter of the vessel upon completion of the fide crewman or that he does not in- examination of the crew. If an alien tend to depart on the vessel on which crewman who has been refused a condi- he arrived in the United States. The tional landing permit is in possession conditional landing permit of such an of Form I–184, the Form I–184 shall be alien crewman shall be taken up and lifted by the examining immigration revoked by the immigration officer, officer and, except in the case of an and a notice on Form I–259 to detain alien crewman who is refused a condi- and deport such alien crewman shall be tional landing permit solely because he served on the agent for the vessel, and is not in possession of a valid passport if they are available, on the owner and or visa, the Form I–184 shall be voided. the master or commanding officer of In the case of an alien crewman refused the vessel. Form I–99 shall be served on a conditional landing permit because the crewman when he is taken into he is not in possession of a valid pass- custody or as soon as practicable there- port or visa, the Form I–184 shall be de- after. On the written request of the livered to the master or agent of the master of the vessel, the crewman may vessel with instructions to return it to be detained and deported, both at the the alien crewman after the vessel has expense of the transportation line on departed from the United States. whose vessel he arrived in the United (h) Authorization to pay off or dis- States, other than on the vessel on charge an alien crewman. Application to which he arrived in the United States, pay off or discharge an alien crewman, if detention or deportation on such lat- except an alien lawfully admitted for ter vessel is impractical. permanent residence, shall be made by [29 FR 15253, Nov. 13, 1964] the owner, agent, consignee, charterer, master, or commanding officer of the § 252.3 Great Lakes vessels and tug- vessel or aircraft on which the alien boats arriving in the United States crewman arrived on Form I–408 filed from Canada; special procedures. with the immigration officer having ju- (a) United States vessels and tugboats. risdiction over the area in which the An immigration examination shall not

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be required of any crewman aboard a sioner and immigration officers (as de- Great Lakes vessel of United States fined in § 103.1(i) of this chapter) are registry or a tugboat of United States designated as ‘‘competent national au- registry arriving from Canada at a port thorities’’ on the part of the United of the United States who has been ex- States within the meaning of Article amined and admitted by an immigra- XXIV of the 1903 Treaty of Friendship tion officer as a member of the crew of and General Relations between the the same vessel or tugboat or of any United States and Spain (33 Stat. 2105, other vessel or tugboat of the same 2117), and ‘‘local authorities’’ and company during the current calendar ‘‘competent officers’’ on the part of the year. United States within the meaning of (b) Canadian or British vessels or tug- Article XIII of the Convention between boats. An immigration examination the United States and Greece (33 Stat. shall not be required of any crewman 2122, 2131). aboard a Great Lakes vessel of Cana- (b) Application for restoration. On ap- dian or British registry or a tugboat of plication of a Consul General, Consul, Canadian or British registry arriving Vice-Consul, or Consular-Agent of the from Canada at a port of the United Spanish or Greek Government, made in States for a period of less than 29 days writing pursuant to Article XXIV of who has been examined and admitted the treaty, or Article XIII of the Con- by an immigration officer as a member vention, respectively, stipulating for of the crew of the same vessel or tug- the restoration of crewmen deserting, boat or of any other vessel or tugboat stating that the person named therein of the same company during the cur- has deserted from a ship of war of that rent calendar year, and is either a Brit- government, while in any port of the ish or Canadian citizen or is in posses- United States, and on proof by the ex- sion of a valid Form I–95 previously is- hibition of the register, crew list, or of- sued to him as a member of the crew of ficial documents of the vessel, or a the same vessel or tugboat or of any copy or extract therefrom, duly cer- other vessel or tugboat of the same tified, that the person named belonged, company, and does not request or re- at the time of desertion, to the crew of quire landing privileges in the United such vessel, such person shall be taken States beyond the time the vessel or into custody by any immigration offi- tugboat will be in port, and will depart cer without a warrant of arrest. Writ- with the vessel or tugboat to Canada. ten notification of charges shall be served on the individual when he is [41 FR 24700, June 18, 1976] taken into custody or as soon as prac- § 252.4 Permanent landing permit and tical thereafter. identification card. (c) Examination. Within a reasonable period of time after the arrest, the in- A Form I–184 is valid until revoked. dividual shall be accorded an examina- It shall be revoked when an immigration by the district director, acting dis- tion officer finds that the crewman is trict director, or the deputy district di- in the United States in willful viola- rector having jurisdiction over the tion of the terms and conditions of his place of arrest. He shall be informed admission, or that he is inadmissible to that he may have the assistance of or the United States. On revocation, the be represented by a counsel or rep- Form I–184 shall be surrendered to an resentative of his choice qualified immigration officer. No appeal shall lie under part 292 of this chapter without from the revocation of Form I–184. expense to the Government, and that [43 FR 37174, Aug. 22, 1978] he may present such evidence in his behalf as may be relevant to this proceed- § 252.5 Special procedures for deserting. If, upon the completion of such ex- ers from Spanish or Greek ships of amination, it is determined that: (1) war. The individual sought by the Spanish (a) General. Under E.O. 11267 of Janu- or Greek authorities had deserted from ary 19, 1966 (31 FR 807) and 28 CFR 0.109, a Spanish or Greek ship of war in a and E.O. 11300 of August 17, 1966, (31 FR United States port; (2) the individual 11009), and 28 CFR 0.110, the Commis- actually arrested and detained is the

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person sought; (3) this individual is not provisions of section 212(d)(5) of the a citizen of the United States; and (4) Act, he shall be given Form I–94, re- this individual had not previously been flecting the terms of parole. A notice arrested for the same cause and set at on Form I–259 shall be served upon the liberty because he had been detained agent, and, if available, upon the owner for more than 3 months, or more than and master or commanding officer of 2 months in the case of a deserter from the vessel or aircraft, which shall a Greek ship of war, from the day of his specify the purpose of the parole and arrest without the Spanish or Greek the conditions under which the alien authorities having found an oppor- crewman is paroled into the United tunity to send him home, the individ- States. The Form I–259 shall also speci- ual shall be served with a copy of the fy the Service office to which the alien findings, from which no appeal shall crewman is to be presented for inspec- lie, and be surrendered forthwith to the tion upon termination of the parole. Spanish or Greek authorities if they The guarantee of payment for medical are prepared to remove him from the and other related expenses required by United States. On written request of section 253 of the Act shall be executed the Spanish or Greek authorities, the by the owner, agent, consignee, com- individual shall be detained, at their manding officer or master on Form I– expense, for a period not exceeding 3 510. months or 2 months, respectively, from (b) Afflicted crewman. Any alien crew- the day of arrest to afford opportunity man afflicted with feeblemindedness, to arrange for his departure from the insanity, epilepsy, tuberculosis in any United States. form, leprosy, or any dangerous con- (d) Timely departure not effected. If the tagious disease, or an alien crewman Spanish authorities delay in sending suspected of being so afflicted shall the individual home for more than 3 upon arrival at the first port of call in months, or if the Greek authorities the United States, be paroled to the delay in sending the individual home medical institution designated by the for more than 2 months, from the day district director in whose district the of his arrest, the individual shall be port is located, in the custody (other dealt with as any other alien unlaw- than during the period of time he is in fully in the United States under the de- such medical institution) of the agent portation provisions of the Immigra- of the vessel or aircraft on which such tion and Nationality Act, as amended. alien arrived in the United States and (e) Commission of crime. If the individ- at the expense of the transportation ual has committed any crime or offense line for a period initially not to exceed in the United States, he shall not be thirty days, for treatment and observa- placed at the disposal of the consul tion, under the provisions of section until after the proper tribunal having 212(d)(5) of the Act. Unless the Public jurisdiction in his case shall have pro- Health Surgeon at the first port cer- nounced sentence, and such sentence tifies that such parole be effected im- shall have been executed. mediately for emergent reasons, the district director may defer execution of [31 FR 12774, Sept. 30, 1966] parole to a subsequent port of the Unit- ed States to which the vessel or air- PART 253—PAROLE OF ALIEN craft will proceed, if facilities not read- CREWMEN ily available at the first port are readily available at such subsequent port of Sec. call. Notice to remove an afflicted 253.1 Parole. alien crewman shall be served by the 253.2 Termination of parole. examining immigration officer upon AUTHORITY: 8 U.S.C. 1103, 1182, 1282, 1283, the master or agent of the vessel or 1285. aircraft on Form I–259 and shall specify the date when and the place to which § 253.1 Parole. such alien crewman shall be removed (a) General. When a crewman is pa- and the reasons therefor. roled into the United States pursuant (c) Disabled crewman. Any alien crew- to the provisions of this part under the man who becomes disabled in any port

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of the United States, whom the master cution in that country on account of or agent of the vessel or aircraft is race, religion, nationality, membership obliged under foreign law to return to in a particular social group, or politi- another country, may be paroled into cal opinion, is eligible to apply for asy- the United States under the provisions lum or withholding of deportation of section 212(d)(5) of the Act for the under part 208 of this chapter. period of time and under the conditions (1) If the alien is on a vessel or other set by the district director in whose conveyance and makes such fear district the port is located, in the cus- known to an immigration inspector or tody of the agent of the vessel or air- other official making an examination craft for the purpose of passing on the conveyance, he shall be prompt- through the United States and trans- ly removed from the conveyance. If the ferring to another vessel or aircraft for alien makes his fear known to an offi- departure to such foreign country, by cial while off such conveyance, he shall the most direct and expeditious route. not be returned to the conveyance but (d) Shipwrecked or castaway seamen or shall be retained in or transferred to airmen. A shipwrecked or castaway the custody of the Service. alien seaman or airman who is rescued (2) In either case, the alien shall be by or transferred at sea to a vessel or provided the appropriate application aircraft destined directly for the Unit- forms and such other information as is ed States and who is brought to the required by § 208.5 of this chapter and United States on such vessel or aircraft may then have ten (10) days within other than as a member of its crew which to file an application for such re- shall be paroled into the United States lief with the District Director having under the provisions of section 212(d)(5) jurisdiction over the port of entry from of the Act for the period of time and which the applicant seeks entry into under the conditions set by the district the United States. The District Direc- director in whose district the port is tor, pursuant to § 208.4(a) of this chap- located, in the custody of the appro- ter, shall immediately forward any priate foreign consul or the agent of such application to an Asylum Officer the aircraft or vessel which was with jurisdiction over his district. wrecked or from which such seaman or airman was removed, for the purpose of (3) Pending adjudication of the appli- treatment or observation in a hospital, cation by the Asylum Officer, the ap- if such is required, and for departure to plicant may be detained by the Service, the appropriate foreign country by the or paroled into the custody of the most direct and expeditious route. ship’s agent or otherwise paroled in ac- (e) Medical treatment or observation. cordance with § 212.5 of this chapter Any alien crewman denied a condi- and shall not be excluded or deported tional landing permit or whose condi- before a decision is rendered by the tional landing permit issued under Asylum Officer on his asylum applica- § 252.1(d)(1) of this chapter is revoked tion. may, upon the request of the master or (4) A decision denying asylum to an agent, be paroled into the United alien crewman or stowaway, but not an States under the provisions of section alien temporarily excluded under sec- 212(d)(5) of the Act in the custody of tion 235(c) of this chapter, may be ap- the agent of the vessel or aircraft and pealed directly to the Board of Immi- at the expense of the transportation gration Appeals. Such appeal must be line for medical treatment or observa- filed within ten (10) days of the Asylum tion. Officer’s decision by filing a notice of (f) Crewman, stowaway, or alien tempo- appeal on Form I–290A with the Dis- rarily excluded under section 235(c) alleg- trict Director, who shall immediately ing persecution. Any alien crewman, forward the notice to the Asylum Offi- stowaway, or alien temporarily ex- cer. The Asylum Officer shall transmit cluded under section 235(c) of the Act the notice of appeal, his decision, and who alleges that he cannot return to the record on which that decision was his country of nationality or last ha- based, to the Board of Immigration Ap- bitual residence (if not a national of peals. The filing of a notice of appeal any country) because of fear of perse- shall stay the exclusion or deportation

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of the applicant pending decision on (b) Revocation of parole. When an im- the appeal by the Board. migration officer has reason to believe (g) Other crewmen. In the discretion that an alien crewman paroled into the of the district director, any alien crew- United States pursuant to the provi- man not within the purview of para- sions of § 253.1 has violated the condi- graphs (b) through (f) of this section tions of parole, the immigration officer may for other emergent reasons or for may take such alien crewman into cus- reasons deemed strictly in the public tody without a warrant of arrest. Fol- interest be paroled into the United lowing such action, the alien crewman States under the provisions of section shall be accorded, without undue delay, 212(d)(5) of the Act for the period of an examination by another immigra- time and under the conditions set by tion officer. If it is determined on the the district director having jurisdic- basis of such examination that the in- tion over the area where the alien dividual detained is an alien crewman crewman is located. who was paroled into the United States [22 FR 9804, Dec. 6, 1957, as amended at 26 FR pursuant to the provisions of § 253.1 and 11797, Dec. 8, 1961; 32 FR 4341, Mar. 22, 1967; 32 that he has violated the conditions of FR 9633, July 4, 1967; 55 FR 30687, July 27, the parole or has remained in the Unit- 1990] ed States beyond the period authorized by the district director, the district di- § 253.2 Termination of parole. rector shall cause to be served upon the (a) General. At the expiration of the alien crewman a written notice that period of parole authorized by the dis- his parole has been revoked, setting trict director, or when the purpose of forth the reasons for such action. If the the parole has been served, whichever vessel or aircraft upon which the alien is earlier, the agent upon whom the re- crewman arrived in the United States lating Form I–259 was served as pro- is still in the United States, the alien vided in § 253.1, shall present the alien crewman shall be delivered to that ves- crewman for inspection to an immigra- sel or aircraft and Form I–259 shall be tion officer at the Service office speci- served upon the master or commanding fied in the Form I–259. If the agent can- officer of the vessel or aircraft direct- not present the alien crewman, the ing that the alien crewman be detained agent shall immediately submit a re- on board the vessel or aircraft and deport of the reasons therefor to the dis- ported from the United States. A copy trict director. The district director of Form I–259 shall also be served on shall take such further action as the the agent for the vessel or aircraft. If circumstances may require. If the ves- the vessel or aircraft upon which the sel or aircraft on which the alien crew- alien crewman arrived in the United man arrived in the United States is States has departed from the United still in the United States when he is States, the agent or owner of the vessel presented for inspection, he shall be or aircraft shall be directed by means treated as an applicant for a condi- of a notice on Form I–259 to effect the tional landing permit and his case shall deportation of the alien crewman from be dealt with in the same manner as the United States. Pending deporta- any other applicant for a conditional tion, the alien crewman shall be con- landing permit. If the vessel or aircraft tinued in custody, unless the district on which the alien crewman arrived in director authorizes his release on pa- the United States departed before he role under such conditions, including was presented for inspection, the agent the posting of a suitable bond, as the shall be directed by means of written district director may prescribe. notice on Form I–259 to arrange for the [32 FR 4342, Mar. 22, 1967] removal of the alien crewman from the United States, and if such alien crewman thereafter departs voluntarily PART 258—LIMITATIONS ON PER- from the United States within the time FORMANCE OF LONGSHORE specified by the district director, such WORK BY ALIEN CREWMEN departure shall not be considered a deportation within the meaning of this Sec. section. 258.1 Limitations—General.

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258.2 Exceptions. Act, section 4106 of the Oil Pollution 258.3 Action upon arrival. Act of 1990, or section 105 or 106 of the AUTHORITY: 8 U.S.C. 1101, 1103, 1281; 8 CFR Hazardous Materials Transportation part 2. Act. SOURCE: 57 FR 40834, Sept. 8, 1992, unless (2) In order to invoke the hazardous otherwise noted. cargo exception for safety and environ- mental protection, the master or agent § 258.1 Limitations—General. shall note on the manifest that the ves- (a) Longshore work defined. Longshore sel is a qualifying tanker or carries work means any activity relating to hazardous dry bulk cargo. the loading and unloading of cargo, the (i) All tankers qualify for the hazard- operation of cargo-related equipment ous cargo exception, including parcel [whether or not integral to the vessel], tankers, except for a tanker that has and the handling of mooring lines on been gas-freed to transport non-hazard- the dock when the vessel is made fast ous dry bulk commodities. or let go, in the United States or the (ii) In order for a vessel to qualify for coastal waters thereof. the hazardous cargo exception as a dry (1) Longshore work is not included in bulk hazardous cargo carrier, the mas- the term ‘‘normal operation and serv- ter or agent must show the immigra- ice on board a vessel’’ for the purposes tion officer the dangerous cargo mani- of section 101(a)(15)(D)(i) of the Act ex- fest that is required by Coast Guard cept as provided in sections 258 (c) or regulation 46 CFR 148.02–3(a) to be kept (d) of the Act. near the bridge house. (2) A vessel that uses nonimmigrant (b) Prevailing practice exception. (1) crewmen to perform longshore work, Nonimmigrant crewmen may perform other than the activities allowed in longshore work under this exception if: particular circumstances under § 258.2 (i) There is in effect in the local port (a)(2), (b), or (c) of this part, shall be one or more collective bargaining subject to a fine under section 251(d) of agreements, each covering at least 30 the Act. percent of the persons performing (b) Port defined. For purposes of this longshore work at the port, and each of section, the term port means a geo- which permits the longshore activity graphic area, either on a seacoast, to be performed by the nonimmigrant lake, river, or other navigable body of crewman, or water, which contains one or more pub- (ii) There is no collective bargaining licly or privately owned terminals, agreement in effect in the local port piers, docks, or maritime facilities, covering at least 30 percent of the per- which is commonly regarded as a port sons performing longshore work at the by other government maritime related port, and the employer of the crewmen agencies, such as the Maritime Admin- has filed an attestation with the Sec- istration. retary of Labor that the Secretary of Labor has accepted. § 258.2 Exceptions. (2) Documentation to be presented Any master or agent who uses non- under the prevailing practice exception. immigrant crewmen to perform (i) If the master or agent states on the longshore work at any United States manifest, Form I–418, that non- port under the exceptions provided for immigrant crewmen will perform in paragraphs (a)(2), (b), or (c) of this longshore work at a port under the pre- section must so indicate on the crew vailing practice exception as permitted manifest and shall note under which by all collective bargaining agreements exception the work will be performed. covering 30 percent or more of the per- (a) Hazardous cargo. (1) The term sons performing longshore work at the longshore work does not include the port, then the master or agent must loading and unloading of any cargo for present to the examining immigration which the Secretary of Transportation officer an affidavit from the local ste- has prescribed regulations under au- vedore. The stevedore or a union rep- thority contained in chapter 37 of title resentative of the employees’ associa- 46, United States Code, section 311 of tion must state on the affidavit that the Federal Water Pollution Control all bargaining agreements covering 30

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percent or more of the longshore work- on a vessel. An automated self-unload- ers at the port allow nonimmigrant ing conveyor belt or a vacuum-actu- crewmen either to perform all ated system may be operated by a non- longshore work or to perform those immigrant crewman under the prevail- specified longshore activities that ing practice exception when no collec- crewmen on the vessel intend to per- tive bargaining agreement at the local form. port prevents it. The master or agent is (ii) Where there is no collective bar- not required to file an attestation for gaining agreement in effect at a port nonimmigrant crewmen to perform covering at least 30 percent of the per- such activity in such a circumstance sons who do longshore work, and the unless the Secretary of Labor has de- master or agent states on the manifest termined that such activity is not the that nonimmigrant crewmen will per- prevailing practice at that port, and form such work under the prevailing has publicized this finding. When in- practice exception, then the master or voking this exception, the master or agent shall present a copy of the notifi- agent of the vessel shall annotate the cation received from the Secretary of manifest that the longshore work con- Labor that the attestation required for sists of operating a self-unloading con- this exception has been accepted. veyor belt or a vacuum-actuated sys- (iii) When an unanticipated emer- tem on the vessel under the prevailing gency occurs, the master or agent of a practice exception. vessel may file an attestation with the (4) Sanctions upon notification by the Secretary of Labor up to the date on Secretary of Labor. If the Immigration which crewmen perform longshore and Naturalization Service is notified work. by the Secretary of Labor that an en- (A) If, because of an unanticipated tity has either misrepresented facts in emergency, crewmen on a vessel per- its attestation or has failed to meet a form longshore work under the prevail- condition attested to, then the Immi- ing practice exception at a port, a re- gration and Naturalization Service will vised manifest shall be submitted to- take the necessary steps to prevent the gether with complete documentation, landing of vessels owned or chartered as specified in paragraph (b)(2)(ii) of by the offending entity in accordance this section, within 14 days of the with section 258(c)(E)(i) of the Act. The longshore work having been done. Fail- Service may also impose a sanction as ure to present the required documenta- provided in that section, including the tion may result in a fine under section prohibition of any vessel owned or 251 of the Act. chartered by the violating entity from (B) All documents submitted after in- landing at any United States port for spection shall be sent to the Immigra- up to one year. tion and Naturalization Service sea- (5) The three variations of the pre- port office that inspected the vessel. vailing practice exception—collective (iv) Attestations are valid for one bargaining agreement, attestation year from the date of filing and cover process, and automated equipment— nonimmigrant crewmen landing during are port specific. If a vessel is to use that period if the master or agent nonimmigrant crewmen to perform states on the manifest that the vessel’s longshore work under the prevailing crew continue to comply with the con- practice exception, the appropriate ditions in the attestation. When the documentation required under para- vessel’s master or agent intends to use graph (b)(2) of this section must be pre- a previously accepted attestation that sented for each port at which the is still valid, the master or agent shall longshore work will be performed. submit a copy of the notification from (c) Reciprocity exception. Non- the Secretary of Labor that the attes- immigrant crewmen may perform tation was accepted and shall note on longshore work in a United States port the manifest that the vessel continues under this exception if: to comply with the conditions of the (1) The vessel on which the crewmen attestation. serve is registered in a country that (3) Use of automated self-unloading does not prohibit crewmen aboard conveyor belt or vacuum-actuated system United States vessels from performing

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longshore work, or a specified the vessel is subject to fine under sec- longshore activity, when United States tion 251(d) of the Act. vessels land in that country, as deter- (d) The examining immigration offi- mined by the Secretary of State; and cer shall give the master or agent a Re- (2) The master or agent presents an ceipt for Crew List, Form I–410, on affidavit from the crewmen’s employer which the officer shall note whether or or the vessel’s owner that a majority of not nonimmigrant crewmen will do the ownership interest in the vessel is longshore work at any port of call and, held by nationals of a country or coun- if so, under which exception. The offi- tries that do not prohibit such cer shall also note which documenta- longshore activity by crewmen aboard tion supporting the exception accom- United States vessels when they land panied the manifest, and any failure to in those countries. present documentation which failure (d) Vessels that qualify for multiple ex- would prohibit crewmen from perform- ceptions. A vessel that qualifies for ing longshore work under the exception more than one exception under this that the vessel invoked. section may invoke the exception that (e) If a vessel’s crewmen perform the master or agent chooses. longshore activity not sanctioned by (e) Lack of documentation required by an exception but performed to prevent an exception. If a vessel invokes an ex- the imminent destruction of goods or ception to the prohibition against non- property; severe damage to vessels, immigrant crewmen performing docks, or real estate; possible environ- longshore work, but lacks any docu- mental contamination; or possible in- mentation required to accompany the jury or death to a person, a concise re- manifest when invoking the exception, port of the incident shall be made with- then the vessel’s crewmen shall not in 14 days of the incident to the Immi- perform longshore work. If the gration and Naturalization Service sea- longshore work is performed despite port office that performed the inspec- the lack of documentation that the im- tion. If the Service agrees that the sit- migration officer has noted on the uation was one of imminent danger re- Form I–410, then the vessel is subject quiring immediate action, no fine will to fine under section 251(d) of the Act. be imposed for the performance of a longshore activity in this isolated in- § 258.3 Action upon arrival. stance. (a) The master or agent of the vessel (f) Failure to deliver true and com- shall state on the manifest at the first plete information on the manifest or port of entry: any documentation required to support (1) Whether or not nonimmigrant an exception may result in a fine crewmen aboard the vessel will per- against the owner, agent, consignee, form longshore work at any port before master, or commanding officer under departing the United States; and section 251(d) of the Act. (2) If nonimmigrant crewmen will perform longshore work, which excep- PART 264—REGISTRATION AND tion in section 258 of the Act permits them to do so. FINGERPRINTING OF ALIENS IN (b) If nonimmigrant crewmen will THE UNITED STATES perform longshore work, the master or agent of the vessel shall present with 264.1 Registration and fingerprinting. the manifest any documentation re- 264.2 Application for creation of record of permanent residence. quired by 8 CFR 258.2 for the exception 264.4 Application to replace a Nonresident invoked. Alien Border Crossing Card. (c) If, at the time of inspection, the 264.5 Application for a replacement Alien master or agent fails to present the Registration Card. documentation required for the excep- 264.6 Application for an initial or replace- tion invoked, then the vessel is prohib- ment Form I–94, Nonimmigrant Arrival- ited from using nonimmigrant crew- Departure Document, or Form I–95, men to perform longshore work. If Crewmen’s Landing Permit. crewmen aboard the vessel perform AUTHORITY: 8 U.S.C. 1103, 1201, 1201a, 1301– longshore work despite the prohibition, 1305.

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§ 264.1 Registration and I–817, Application for Voluntary Departure fingerprinting. under the Family Unity Program. (a) Prescribed registration forms. The (b) Evidence of registration. The fol- following forms are prescribed as reg- lowing forms constitute evidence of istration forms: registration:

FORM NO. AND CLASS FORM NO. AND CLASS I–67, Inspection Record—Hungarian refugees I–94, Arrival-Departure Record—Aliens ad- (Act of July 25, 1958). mitted as nonimmigrants; aliens paroled I–94, Arrival-Departure Record—Aliens ad- into the United States under section mitted as nonimmigrants; aliens paroled 212(d)(5) of the Immigration and National- into the United States under section ity Act; aliens whose claimed entry prior 212(d)(5) of the Immigration and National- to July 1, 1924, cannot be verified, they ity Act; aliens whose claimed entry prior having satisfactorily established residence to July 1, 1924, cannot be verified, they in the United States since prior to July 1, having satisfactorily established residence 1924; and aliens granted permission to de- in the United States since prior to July 1, part without the institution of deportation 1924; aliens lawfully admitted to the Unit- proceedings. ed States for permanent residence who I–95, Crewmen’s Landing Permit—Crewmen have not been registered previously; aliens arriving by vessel or aircraft. who are granted permission to depart with- I–184, Alien Crewman Landing Permit and out the institution of deportation proceed- Identification Card—Crewmen arriving by ings or against whom deportation proceed- vessel. ings are being instituted. I–185, Nonresident Alien Canadian Border I–95, Crewmen’s Landing Permit—Crewmen Crossing Card—Citizens of Canada or Brit- arriving by vessel or aircraft. ish subjects residing in Canada. I–175, Application for Nonresident Alien Ca- I–186, Nonresident Alien Mexican Border nadian Border Crossing Card—Citizens of Crossing Card—Citizens of Mexico residing Canada or British subjects residing in Can- in Mexico. ada. I–221, Order to Show Cause and Notice of I–181, Memorandum of Creation of Record of Hearing—Aliens against whom deportation Lawful Permanent Residence—Aliens pre- proceedings are being instituted. sumed to be lawfully admitted to the Unit- I–221S, Order to Show Cause, Notice of Hear- ed States under 8 CFR 101.1. ing, and Warrant for Arrest of Alien— I–190, Application for Nonresident Alien Aliens against whom deportation proceed- Mexican Border Crossing Card—Citizens of ings are being instituted. Mexico residing in Mexico. I–551, Alien Registration Receipt Card—Law- I–485, Application for Status as Permanent ful permanent resident of the United Resident—Applicants under sections 245 States. and 249 of the Immigration and Nationality I–688, Temporary Resident Card-Lawful tem- Act as amended, and section 13 of the Act porary residents of the United States. of September 11, 1957. I–688A, Employment Authorization Card. I–485A, Application by Cuban Refugee for I–688B, Employment Authorization Docu- Permanent Residence—Applicants under ment. section 1 of the Act of November 2, 1966. I–766, Employment Authorization Document. I–590, Registration for Classification as Refu- gee—Escapee—Refugee-escapees paroled (c) Replacement of registration. Any pursuant to section 1 of the Act of July 14, alien whose evidence of registration 1960. has been lost, mutilated, or destroyed, I–687, Application for Status as a Temporary shall immediately apply for new evi- Resident—Applicants under section 245A of dence of registration. the Immigration and Nationality Act, as (1) Temporary residents. Application amended. I–691, Notice of Approval for Status as a by an alien lawfully admitted for tem- Temporary Resident—Aliens adjusted to porary residence for Form I–688, Tem- lawful temporary residence under 8 CFR porary Resident Card, shall be made on 210.2 and 245A.2. Form I–695. (i) Who can file. An I–695 ap- I–698, Application to Adjust Status from plication may be filed by a lawful tem- Temporary to Permanent Resident—Appli- porary resident: cants under section 245A of the Immigra- (A) To replace a lost, stolen, or tion and Nationality Act, as amended. detroyed card; I–700, Application for Status as a Temporary Resident—Applicants under section 210 of (B) To replace a mutilated card; the Immigration and Nationality Act, as (C) To change a name or other bio- amended. graphic data.

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(ii) Fee. An I–695 application must be or her eligibility for issuance of I–688 submitted with the fee required by as evidence of his or her registration. § 103.7(b)(1) of this chapter. (B) Waiver of requirements. The Serv- (iii) Accompanying documents—(A) ice may waive the photograph, inter- Photographs. An I–695 application must view or the placement of fingerprint be filed with two color photographs and signature on the I–688 for a child meeting the specifications on the ap- under 14 or when it is impractical be- plication form. cause of the health or advanced age of (B) Prior evidence of alien registration. the applicant. Any Form I–688 in the applicant’s pos- (C) Fingerprint chart. An applicant session must be submitted with the ap- may be required to present a completed plication. fingerprint chart, FD–258. (C) Evidence of name or other bio- (vi) Decision. The decision on an ap- graphic change. An I–695 application plication for replacement of evidence filed under paragraph (c)(2)(i)(C) of this of registration shall be made by the section must be filed with the order, is- Regional Processing Facility director sued by a court of competent jurisdic- having jurisdiction over the alien’s tion, changing the applicant’s name, or place of residence in the United States. with the applicant’s marriage certifi- No appeal shall lie from the decision of cate. An application to change other the Regional Processing Facility direc- biographic data on a card must be filed tor denying the application. with documentary evidence conclu- (d) Surrender of registration. If an sively establishing the new data. alien is naturalized, dies, permanently (iv) Filing—(A) Where to file. An appli- departs, or is deported from the United cation by an alien within the United States, or evidence of registration is States for replacement of evidence of found by a person other than the one to registration shall be submitted to the whom such evidence was issued, the legalization or Service office having ju- person in possession of the document risdiction over the applicant’s place of shall forward it to a Service office. residence in the United States. An (e) Fingerprinting waiver. (1) alien outside the United States shall Fingerprinting is waived for non- appear at an American Consulate or immigrant aliens admitted as foreign Service office abroad and present a full government officials and employees; account of the circumstances involving international organization representa- the loss or destruction of Form I–688. A tives, officers and employees; NATO cable shall be sent to the Service’s representatives, officers and employ- Central Office Records Management ees, and holders of diplomatic visas Branch for verification of status. Sub- while they maintain such non- sequent to verification that temporary immigrant status. Fingerprinting is residence was granted, a transpor- also waived for other nonimmigrant tation letter will be issued to the tem- aliens, while they maintain non- porary resident alien. Upon entry to immigrant status, who are nationals of the United States, the alien shall sub- countries which do not require mit the I–695 to the legalization or fingerprinting of United States citizens Service office having jurisdiction over temporarily residing therein. the applicant’s place of residence in (2) Fingerprinting is waived for every the United States. nonimmigrant alien not included in (B) Camera ready card. Prior to the is- paragraph (e)(1) of this section who de- suance of Form I–688, all applicants, re- parts from the United States within gardless of age, shall appear at the ap- one year of his admission, provided he propriate legalization or Service office maintains his nonimmigrant status for placement of fingerprint and signa- during that time; each such alien not ture on I–688. previously fingerprinted shall apply (v) Processing—(A) Interview. An alien therefor at once if he remains in the who files application Form I–695 may United States in excess of one year. be required to appear in person before (3) Every nonimmigrant alien not an immigration officer prior to the ad- previously fingerprinted shall apply judication of the application and be therefor at once upon his failure to interviewed under oath concerning his maintain his nonimmigrant status.

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(f) Registration and fingerprinting of manent residence to a lawful perma- certain nonimmigrants. Notwithstanding nent resident alien who is departing the provisions included in paragraphs temporarily from the United States (e)(1) and (e)(2) of this section, the At- and has applied on Form I–90 for issu- torney General may designate, by a ance of Form I–551, if the district direc- comprehensive public notice in the tor is unable to issue and deliver the FEDERAL REGISTER, that certain non- Form I–551 prior to the alien’s con- immigrants of specific countries are re- templated return to the United States. quired to be registered and The alien shall surrender such Form I– fingerprinted upon arrival in the Unit- 94 to the Service upon receipt of Form ed States. This requirement shall not I–551. apply to those nonimmigrants applying (i) Copy of Form I–94. An attorney or for admission to the United States representative as defined in § 1.1 of this under section 101(a)(15)(A) or chapter who is representing an alien 101(a)(15)(G) of the Immigration and before the Service or the Board may Nationality Act. Those aliens so des- make and retain, solely for informa- ignated by the Attorney General who tion purposes, a copy of the Form I–94 apply for admission to the United (Arrival-Departure Record) issued to States shall be registered on Form I–94 and in the possession of the alien. Such (Arrival/Departure Record), and may be copy shall not be used for any other fingerprinted on Form FD–258 (Finger- purpose. print Chart), and photographed by the [25 FR 10495, Nov. 2, 1960] Service at the Port-of-Entry where the EDITORIAL NOTE: For FEDERAL REGISTER ci- aliens apply for admission to the Unit- tations affecting § 264.1, see the List of CFR ed States. Sections Affected in the Finding Aids sec- (g) Registration and fingerprinting of tion of this volume. children who reach age 14. Within 30 days after reaching the age of 14, any § 264.2 Application for creation of alien in the United States not exempt record of permanent residence. from alien registration under the act (a) Jurisdiction. An applicant who be- and this chapter shall present himself lieves that he/she is eligible for pre- to a Service office for registration in sumption of lawful admission for per- accordance with section 262(b) of the manent residence under § 101.1 or § 101.2 Act, and for fingerprinting unless of this chapter or for lawful permanent fingerprinting is waived pursuant to residence as a person born in the Unit- paragraph (e) of this section. He shall ed States to a foreign diplomatic offi- submit Form I–90 if he is a lawful per- cer under § 101.3 of this chapter shall manent resident. If such alien is a law- submit his/her application for creation ful permanent resident of the United of a record of lawful permanent resi- States and is temporarily absent from dence to the Service office having ju- the United States when he reaches the risdiction over the applicant’s place of age of 14, he shall comply with the residence in the United States. The ap- foregoing within 30 days of his return plicant must be physically present in to the United States. The alien, if a the United States at the time of sub- lawful permanent resident of the Unit- mission of his/her application. ed States, shall surrender his prior evi- (b) Applicant under eighteen years old. dence of alien registration and shall be If the applicant is under eighteen years issued Form I–551 bearing a photograph old, the applicant’s parent or legal submitted by him in accordance with guardian shall prepare and sign the ap- the instructions on Form I–90. In the plication in the applicant’s behalf. case of an alien who is not a lawful per- (c) Filing application—(1) Presumption manent resident, the alien’s Form I–94 of lawful admission for permanent resi- or I–95 shall be noted to show that he dence. An applicant who believes that has been registered and the date of reg- he/she is eligible for presumption of istration. lawful admission for permanent resi- (h) Temporary evidence of registration. dence under § 101.1 or § 101.2 of this Form I–94, appropriately endorsed, may chapter shall submit the following: be issued as temporary evidence of reg- (i) A completed Form I–485, with the istration and lawful admission for per- fee required in 8 CFR 103.7(b)(1) and

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any initial evidence required on the ap- to whom the application is submitted, plication form and in this section. however, may waive the photographs (ii) Form G–325A, Biographic Infor- for just cause. mation. (3) Applicant under fourteen years old. (iii) The applicant’s fingerprints on An applicant under fourteen years old Form FD–258. shall not submit Form G–325A, Bio- (iv) A list of all the applicant’s arriv- graphic Information, or his/her finger- als in and departures from the United prints on Form FD–258. States. (d) Personal appearance. Each appli- (v) A statement signed by the applicant, including an applicant under cant indicating the basis of the appli- eighteen years of age, must submit his/ cant’s claim to presumption of lawful her application in person. This require- admission for permanent residence. ment may be waived at the discretion (vi) Documentary evidence substan- of the immigration officer to whom the tiating the applicant’s claim to pre- application is submitted because of sumption of lawful admission for per- confinement of age, physical infirmity, manent residence, including proof of illiteracy, or other compelling reason. continuous residence in the United States. (e) Interview. The applicant may be (vii) Two photographs prepared in ac- required to appear in person before an cordance with the specifications out- immigration officer prior to adjudica- lined in the instructions on the appli- tion of the application to be inter- cation form. The immigration officer viewed under oath concerning his/her to whom the application is submitted, eligibility for creation of a record of however, may waive the photographs lawful permanent residence. for just cause. (f) Decision. The decision regarding (2) Lawful permanent residence as a creation of a record of lawful perma- person born in the United States under nent residence for an alien eligible for diplomatic status. An applicant who be- presumption of lawful admission for lieves that he/she is eligible for lawful permanent residence or for a person permanent residence as a person born born in the United States to a foreign in the United States to a foreign diplo- diplomatic officer will be made by the matic officer under § 101.3 of this chap- district director having jurisdiction ter shall submit the following: over the applicant’s place of residence. (i) A completed Form I–485, with the (g) Date of record of lawful permanent fee required in 8 CFR 103.7(b)(1) and residence—(1) Presumption of lawful ad- any initial evidence required in this mission for permanent residence. If the application form and in this section. application is granted, the applicant’s (ii) Form G–325A, Biographic Infor- permanent residence will be recorded mation. as of the date of the applicant’s arrival (iii) The applicant’s fingerprints on in the United States under the condi- Form FD–258. tions which caused him/her to be eligi- (iv) The applicant’s birth certificate. ble for presumption of lawful admis- (v) An executed Form I–508, Waiver of sion for permanent residence. Rights, Privileges, Exemptions, and (2) Lawful permanent residence as a Immunities. person born in the United States under (vi) Official confirmation of the dip- diplomatic status. If the application is lomatic classification and occupational granted, the applicant’s permanent res- title of the applicant’s parent(s) at the idence will be recorded as of his/her time of the applicant’s birth. date of birth. (vii) A list of all the applicant’s ar- (h) Denied application. If the applica- rivals in and departures from the Unit- tion is denied, the decision may not be ed States. appealed. (viii) Proof of continuous residence in the United States. (Secs. 101(a)(20), 103, 262, 264 of the Immigra- (ix) Two photographs prepared in action and Nationality Act, as amended; 8 cordance with the specifications out- U.S.C. 1101(a)(20), 1103, 1302, 1304) lined in the instructions on the appli- [47 FR 941, Jan. 8, 1982, as amended at 58 FR cation form. The immigration officer 48779, Sept. 20, 1993]

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§ 264.4 Application to replace a Non- existing card will expire prior to the resident Alien Border Crossing bearer’s 16th birthday; or Card. (9) If the existing card bears incor- An application for a replacement rect data on account of Service error. Nonresident Alien Border Crossing (c) Other filings by a permanent resi- Card must be filed pursuant to § 212.6(e) dent. of this chapter. An application for a re- (1) A permanent resident shall apply placement Form I–185, Nonresident on Form I–90 to replace a prior edition Alien Canadian Border Crossing Card, of the alien registration card issued on must be filed on Form I–175. A fee as Form AR–3, AR–103, or I–151. prescribed in § 103.7(b)(1) of this chapter (2) A permanent resident may apply must be submitted at time of applica- on Form I–90 to replace any edition of tion. An application for a replacement the alien registration card for any Form I–586, Nonresident Alien Border other reason not specified in para- Crossing Card, must be filed on Form I– graphs (b) and (c)(1) of this section. 190. A fee as prescribed in § 103.7(b)(1) of (d) Conditional permanent residents re- this chapter must be submitted at time quired to file. A conditional permanent of application to replace a lost, stolen, resident whose card is expiring shall or mutilated card. apply to remove the conditions on resi- [60 FR 40069, Aug. 7, 1995] dence on Form I–751. A conditional permanent resident shall apply on Form I– § 264.5 Application for a replacement 90: Alien Registration Card. (1) To replace a card that was lost, (a) General. An application for a re- stolen, or destroyed; placement alien registration card must (2) To replace a card that was issued be filed on Form I–90 with the initial but never received; evidence required on the application (3) Where the prior card has been mu- form and with the fee specified in 8 tilated; CFR 103.7(b)(1); except that no fee is re- (4) Where the prior card is incorrect quired for an application filed pursuant on account of Service error; or to paragraphs (b)(7) through (b)(9) of (5) Where his or her name or other this section, or paragraphs (d)(2) or biographic data has changed since the (d)(4) of this section. card was issued. (b) Permanent residents required to file. (e) Application process—(1) Accompany- A permanent resident shall apply for a ing documents—(i) Photographs. An I–90 replacement alien registration card: application must be filed with two (1) When the previous card has been color photographs meeting the speci- lost, stolen, or destroyed; fications on the application form. (2) When the existing card will be ex- (ii) Prior evidence of alien registration. piring within six months; An I–90 application filed under para- (3) When the existing card has been graph (b) (2), (3), (4), (5), (8), or (9) of mutilated; this section must include the prior (4) When the bearer’s name or other Alien Registration Receipt Card or biographic information has been le- other evidence of permanent residence gally changed since issuance of the ex- or commuter status. isting card; (iii) Evidence of name or other bio- (5) When the applicant is taking up graphic change. An I–90 application actual residence in the United States filed under paragraph (b)(4) of this sec- after having been a commuter, or is a tion must include the order, issued by permanent resident taking up com- a court of competent jurisdiction, muter status; changing the applicant’s name, or with (6) When the applicant has been auto- the applicant’s marriage certificate. matically converted to permanent resi- An application to change other bio- dent status; graphic data on a card must include (7) When the previous card was issued documentary evidence conclusively es- but never received; tablishing the new data. (8) When the bearer of the card (iv) Fingerprint chart. An I–90 applica- reaches the age of 14 years, unless the tion filed under paragraph (b)(8) of this

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section must be filed with a completed when the proceeding commenced, shall Form FD–258 Fingerprint Chart. not affect those proceedings. (2) Filing—(i) Where to file. An I–90 ap- [58 FR 48779, Sept. 20, 1993, as amended at 59 plication shall be filed by the applicant FR 1466, Jan. 11, 1994; 59 FR 33905, July 1, with the Service office that has juris- 1994] diction over his or her place of residence, except for those applicants fil- § 264.6 Application for an initial or replacement Form I–94, Non- ing an I–90 pursuant to paragraph (b)(6) immigrant Arrival-Departure Docu- of this section, who shall file the appli- ment, or Form I–95, Crewmen’s cation with the Director of the Service Landing Permit. Center having jurisdiction over his or (a) General. An application for a new her place of residence. If the appli- or replacement Form I–94 or replace- cant’s place of residence is outside the ment Form I–95 must be made on Form United States and there is no Service I–102. The application must be filed office in that foreign country, the ap- with the fee required in § 103.7 of this plication shall be filed by the appli- chapter and the initial evidence re- cant, in person, at the American Con- quired on the application form. sulate with jurisdiction over his or her (b) Filing. An application may be ap- place of residence. proved if filed by an alien in the United (ii) Data collection form. An applicant States who: must execute the signature and finger- (1) Applies to replace a lost or stolen print blocks of Form I–89, Data Collec- Form I–94 or Form I–95 that had been issued to him or her; tion Form, at a Service office when fil- (2) Applies to replace a mutilated ing an I–90 application. Form I–94 or Form I–95 issued to him (3) Miscellaneous—(i) Interview. An ap- or her; or plicant may be required to appear be- (3) Was not issued a Form I–94 pursu- fore an immigration officer or consular ant to § 235.1(f)(1)(i), (iii), (iv), (v), or officer and be interviewed under oath (vi) of this chapter, when last admitted concerning eligibility. as a nonimmigrant, has not since been (ii) Waiver of requirements. The Serv- issued a Form I–94, and now requires a ice may waive the photograph, in per- Form I–94. son filing, and I–89 execution require- (c) Processing. A pending application ments of this section in cases of con- filed under paragraph (a) of this section finement due to advanced age or phys- shall be considered temporary evidence ical infirmity. of registration. If the application is ap- (f) Decision. If an application is de- proved, the document shall be issued. nied, the applicant shall be notified of There is no appeal from the denial of an application filed on Form I–102. the reasons for denial. No appeal shall lie from this decision. [59 FR 1466, Jan. 11, 1994] (g) Eligibility for a card while in deportation or exclusion proceedings. A person PART 265—NOTICES OF ADDRESS in exclusion proceedings shall be entitled to evidence of permanent resident AUTHORITY: Secs. 103, 265 of the Immigra- status until ordered excluded. Such tion and Nationality Act, as amended by sec. 11, Pub. L. 97–166, 95 Stat. 1617 (8 U.S.C. 1103, evidence shall be in the form of a tem- 1305). porary Form I–551 issued for a period sufficient to accomplish the exclusion § 265.1 Forms. proceedings. A person in deportation Except for those exempted by section proceedings shall be entitled to evi- 263(b) of the Act, all aliens in the Unit- dence of permanent resident status ed States required to register under until ordered deported or excluded. Is- section 262 of the Act shall report each suance of an alien registration card to change of address and new address a person in exclusion or deportation within 10 days on Form AR–11. This proceedings, provided the person had form is available at post offices and status as a lawful permanent resident Service offices in the United States.

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The completed form must be mailed to to the appropriate Service office or by the Department of Justice, Immigra- personally appearing before any immi- tion and Naturalization Service, Wash- gration officer at a Service office. ington, DC 20536. (b) Investigation. When the Service receives complaints from a third party in [47 FR 44239, Oct. 7, 1982] accordance with paragraph (a) of this section, it shall investigate only those PART 270—PENALTIES FOR complaints which, on their face, have a DOCUMENT FRAUD substantial probability of validity. The Service may also conduct investiga- Sec. tions for violations on its own initia- 270.1 Definitions. tive, and without having received a 270.2 Enforcement procedures. written complaint. If it is determined 270.3 Penalties. after investigation that the person or AUTHORITY: 8 U.S.C. 1101, 1103, and 1324c. entity has violated section 274C of the SOURCE: 57 FR 33866, July 31, 1992, unless Act, the Service may issue and serve otherwise noted. upon the alleged violator a Notice of Intent to Fine. § 270.1 Definitions. (c) Issuance of a subpoena. Service of- For the purpose of this part— ficers shall have reasonable access to Document means an instrument on examine any relevant evidence of any which is recorded, by means of letters, person or entity being investigated. figures, or marks, matters which may The Service may issue subpoenas pur- be used to fulfill any requirement of suant to its authority under sections the Act. The term ‘‘document’’ in- 235(a) and 287 of the Act, in accordance cludes, but is not limited to, an appli- with the procedures set forth in § 287.4 cation required to be filed under the of this chapter. Act and any other accompanying docu- (d) Notice of Intent to Fine. The pro- ment or material; ceeding to assess administrative pen- Entity means any legal entity, includ- alties under section 274C of the Act is ing, but not limited to, a corporation, commenced when the Service issues a partnership, joint venture, govern- Notice of Intent to Fine. Service of this mental body, agency, proprietorship, or notice shall be accomplished by per- association, including an agent or any- sonal service pursuant to § 103.5a(a)(2) one acting directly or indirectly in the of this chapter. Service is effective interest thereof. upon receipt, as evidenced by the certificate of service or the certified mail § 270.2 Enforcement procedures. return receipt. The person or entity (a) Procedures for the filing of com- identified in the Notice of Intent to plaints. Any person or entity having Fine shall be known as the respondent. knowledge of a violation or potential The Notice of Intent to Fine may be is- violation of section 274C of the Act sued by an officer defined in § 242.1 of may submit a signed, written com- this chapter or by an INS port director plaint to the Service office having ju- designated by his or her district direc- risdiction over the business or resi- tor. dence of the potential violator or the (e) Contents of the Notice of Intent to location where the violation occurred. Fine. (1) The Notice of Intent to Fine The signed, written complaint must shall contain the basis for the charge(s) contain sufficient information to iden- against the respondent, the statutory tify both the complainant and the al- provisions alleged to have been vio- leged violator, including their names lated, and the monetary amount of the and addresses. The complaint should penalty the Service intends to impose. also contain detailed factual allega- (2) The Notice of Intent to Fine shall tions relating to the potential viola- provide the following advisals to the tion including the date, time and place respondent: of the alleged violation and the specific (i) That the person or entity has the act or conduct alleged to constitute a right to representation by counsel of violation of the Act. Written com- his or her own choice at no expense to plaints may be delivered either by mail the government;

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(ii) That any statement given may be INS port director designated by his or used against the person or entity; her district director, or by the Director (iii) That the person or entity has the of the INS National Fines Office. right to request a hearing before an ad- (i) Service of the final order—(1) Gen- ministrative law judge pursuant to 5 erally. Service of the final order shall U.S.C. 554–557, and that such request be accomplished by personal service must be filed with INS within 60 days pursuant to § 103.5a(a)(2) of this chap- from the service of the Notice of Intent ter. Service is effective upon receipt, as to Fine; and evidenced by the certificate of service (iv) That if a written request for a or the certified mail return receipt. hearing is not timely filed, the Service (2) Alternative provisions for service in will issue a final order from which a foreign country. When service is to be there is no appeal. effected upon a party in a foreign coun- (f) Request for hearing before an admin- try, it is sufficient if service of the istrative law judge. If a respondent con- final order is made: (i) In the manner tests the issuance of a Notice of Intent prescribed by the law of the foreign to Fine, the respondent must file with country for service in that country in the INS, within 60 days of the Notice of an action in any of its courts of general Intent to Fine, a written request for a jurisdiction; or hearing before an administrative law (ii) As directed by the foreign author- judge. Any written request for a hear- ity in response to a letter rogatory, ing submitted in a foreign language when service in either case is reason- must be accompanied by an English ably calculated to give actual notice; language translation. A request for or hearing is deemed filed when it is ei- (iii) When applicable, pursuant to ther received by the Service office des- § 103.5a(a)(2) of this chapter. ignated in the Notice of Intent to Fine, Service is effective upon receipt of the or addressed to such office, stamped final order. Proof of service may be with the proper postage, and post- made as prescribed by the law of the marked within the 60-day period. In foreign country, or, when service is computing the 60-day period prescribed pursuant to § 103.5a(a)(2) of this chap- by this section, the day of service of ter, as evidenced by the certificate of the Notice of Intent to Fine shall not service or the certified mail return re- be included. In the request for a hear- ceipt. ing, the respondent may, but is not re- (j) Declination to file charges for docu- quired to, respond to each allegation ment fraud committed by refugees at the listed in the Notice of Intent to Fine. A time of entry. The Service shall not respondent may waive the 60-day pe- issue a Notice of Intent to Fine for acts riod in which to request a hearing be- of document fraud committed by an fore an administrative law judge and alien pursuant to direct departure from ask that the INS issue a final order a country in which the alien has a well- from which there is no appeal. Prior to founded fear of persecution or from execution of the waiver, a respondent which there is a significant danger that who is not a United States citizen will the alien would be returned to a coun- be advised that a waiver of a section try in which the alien would have a 274C hearing will result in the issuance well-founded fear of persecution, proof a final order and that the respondent vided that the alien has presented him- will be excludable and/or deportable self or herself without delay to an INS from the United States pursuant to the officer and shown good cause for his or Act. her illegal entry or presence. Other (g) Failure to file a request for hearing. acts of document fraud committed by If the respondent does not file a writ- such an alien may result in the issu- ten request for a hearing within 60 days ance of a Notice of Intent to Fine and of service of the Notice of Intent to the imposition of civil money pen- Fine, the INS shall issue a final order alties. from which there shall be no appeal. (h) Issuance of the final order. A final § 270.3 Penalties. order may be issued by an officer de- (a) Criminal penalties. Nothing in sec- fined in § 242.1 of this chapter, by an tion 274C of the Act shall be construed

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to diminish or qualify any of the pen- PART 271—DILIGENT AND REASON- alties available for activities prohib- ABLE EFFORTS TO PREVENT THE ited by this section but proscribed as UNAUTHORIZED ENTRY OF ALIENS well in title 18, United States Code. BY THE OWNERS OF RAILROAD (b) Civil penalties. A person or entity may face civil penalties for a violation LINES, INTERNATIONAL BRIDGES of section 274C of the Act. Civil pen- OR TOLL ROADS alties may be imposed by the Service or by an administrative law judge for AUTHORITY: 8 U.S.C. 1103 and 1321. violations under section 274C of the § 271.1 Procedures for inspections. Act. The Service may charge multiple violations of section 274C of the Act in (a) Applicability. The following terms a single Notice of Intent to Fine, and and conditions apply to those owners may impose separate penalties for each or operators of railroad lines, inter- such unlawful act in a single proceed- national bridges, or toll roads, which provide a means for an alien to come to ing or determination. However, in de- the United States. termining whether an offense is a first offense or a subsequent offense, a find- (b) Inspection of facility. Based upon a written request by the owners or opera- ing of more than one violation in the tors, the INS district director or his course of a single proceeding or deter- designee shall inspect the facility or mination will be counted as a single of- method utilized in order to ensure that fense. owners and operators have acted dili- (1) A respondent found by the Service gently in taking adequate steps to pre- or an administrative law judge to have vent the unlawful entry of aliens into violated section 274C of the Act shall the United States. Such measures may be subject to an order: include but are not necessarily limited (i) To cease and desist from such be- to fencing, barricades, lighting, or se- havior; and curity guards. If the district director (ii) To pay a civil penalty according determines that preventive measures to the following schedule: are inadequate, he or she shall advise (A) First offense. Not less than $250 the owners or operators in writing, cit- and not more than $2,000 for each ing the reasons for such determination. fraudulent document or each pro- If the owners or operators believe the scribed activity described in section requirements of the district director to 274C (a)(1)–(a)(4) of the Act, or be excessive or unnecessary, they may (B) Subsequent offenses. Not less than request that the Regional Commis- $2,000 and not more than $5,000 for each sioner having jurisdiction over the location where the facility is located, re- fraudulent document or each pro- view the district director’s require- scribed activity described in section ments. The Regional Commissioner 274C (a)(1)–(a)(4) of the Act. shall advise the owners or operators in (2) Where an order is issued to a re- writing of the results of his or her respondent composed of distinct, phys- view. ically separate subdivisions each of (c) Preventive measures and certifi- which provides separately for the hir- cation. Upon a determination by the ing, recruiting, or referring for a fee for district director that reasonable and employment (without reference to the adequate preventive measures have practices of, and not under the com- been taken by the owners and opera- mon control of or common control tors, he or she shall certify that the with, another subdivision), each sub- owners and operators shall not be lia- division shall be considered a separate ble for the penalty described in section person or entity. 271(a), so long as the facility or method

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utilized is maintained in the condition over a conveyance, as well as a prop- in which approved and certified. erty interest therein. (d) Revocation of certification. The Dis- (c) The term claimant means any per- trict Director having jurisdiction over son who asserts a property interest in a the location where the facility is lo- seized or forfeited conveyance through cated, in his or her discretion, may at a personal interview or by filing a any time, conduct an inspection of said claim and a bond or a petition for relief facility to determine if any violation is from forfeiture. occurring. If the facility is found to be (d) The term common carrier means an not in compliance, said certification express carrier, a freight forwarder, a will be revoked. motor common carrier, a rail carrier, a sleeping car carrier, and a water com- [53 FR 26036, July 11, 1988] mon carrier, as each of those terms is defined in 49 U.S.C. 10102; and an air PART 274—SEIZURE AND carrier and a foreign air carrier, as FORFEITURE OF CONVEYANCES each of those terms is defined in 49 U.S.C. 1301. Sec. (e) The term consenting party or privy 274.1 Definitions. to the illegal act means that the person 274.2 Officers authorized to seize convey- knew of the illegal activity. A person ances. shall be presumed to have knowledge of 274.3 Custody and duties of custodian. 274.4 Conveyances subject to seizure; termi- an illegal activity if the facts and cir- nation of interest. cumstances are such that a person 274.5 Return to owner of seized conveyance would reasonably be expected to know not subject to forfeiture; opportunity for of the illegal activity. personal interview. (f) The term conveyance means a ves- 274.6 Proof of property interest. sel, vehicle, or aircraft as used in sec- 274.7 Appraisal. tion 274(b) of the Act. A trailer shall be 274.8 Notice to owner and lienholder of sei- considered a vehicle if it is being towed zure. 274.9 Advertisement. or readily capable of being towed. An 274.10 Judicial forfeiture proceedings upon immobilized house trailer which has claim and bond. been placed on permanent foundations, 274.11 Administrative forfeiture. which is not readily mobile, is not a ve- 274.12 Judicial forfeiture. hicle. 274.13 Petitions for relief from forfeiture; (g) The term custodian means the re- filing. gional commissioner or the U.S. Mar- 274.14 Time for filing petitions. shals Service. 274.15 Remission. (h) The date of an action in conjunc- 274.16 Mitigation. 274.17 Restoration of proceeds or appraised tion with the term filed means the fol- value. lowing: 274.18 Provisions applicable to particular (1) Date of receipt in the office speci- situations. fied in this part for filing, if filing is by 274.19 Determinations on petitions; recon- personal delivery; sideration. (2) Date of postmark, if filing is by 274.20 Compromise of judicial forfeiture pro- mail to the office specified in this part ceedings. for filing; AUTHORITY: 8 U.S.C. 1103, 1324(b). (3) Date five days prior to date of re- SOURCE: 53 FR 43187, Oct. 26, 1988, unless ceipt in the office specified in this part otherwise noted. for filing, if filing is by mail to the office specified in this part for filing and § 274.1 Definitions. date of postmark is missing or illegi- The following definitions apply to ble; or the following terms in this part: (4) Date of receipt in the office speci- (a) The term appraised value means fied in this part for filing, if filing is by the estimated price at the time and mail to any other office. place of seizure, if such or similar prop- (i) The term lien means in interest erty were freely offered for sale. created by a conditional sales contract, (b) The term beneficial owner means a mortgage, title retention contract, person who has dominion and control debt reduced to a judicial judgment

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upon which there has been an execu- est or other legally cognizable interest tion or an attachment against a con- in a conveyance. In the consideration veyance, or other security interest in a of a petition for relief from forfeiture conveyance. A lienholder is the holder the mere existence of a community of such an interest. property interest without proof of fi- (j) The term net equity means the nancial contribution to the purchase of amount of monetary interest of a a conveyance will not be deemed a lienholder in a conveyance. Net equity property interest. is to be computed by determining the (o) The term record means an arrest amount of unpaid principal and unpaid for a related crime followed by a con- interest as of the date of seizure, and viction, except that a single arrest and by adding to that amount the unpaid conviction and the expiration of any interest calculated from the date of sentence imposed as a result of the seizure through the last full month conviction, all of which occurred more prior to the date of the determination than ten years prior to the date a granting relief from forfeiture. The claimant acquired a property interest rate of interest to be used in this com- in the seized or forfeited conveyance, is putation will be the annual percentage not considered a record; provided that rate specified in the security agree- two convictions of related crimes shall ment which is the basis of the interest always be considered a record regard- of the lienholder. In this computation less of when the convictions occurred; there shall be no allowances for un- and provided that the regional commis- earned extended warranty, insurance, sioner may consider as constituting a or service contract charges incurred record an arrest for a related crime or after the date of seizure, nor allow- series of arrests for related crimes in ances for dealer reserves, attorneys which the charge or charges were sub- fees, or other similar charges. sequently dismissed for reasons other (k) The term owner means a person than acquittal or lack of evidence. who has the right to possess and use a (p) The term regional commissioner conveyance to the exclusion of other means the Regional Commissioner of persons. A person who has complied the Service for the region in which a with the state formalities for a title or conveyance is seized, or the designee of a registration for a conveyance is not that Regional Commissioner. the owner if such person does not have sufficient actual beneficial interest in (q) The term related crime means any the conveyance. In the consideration of crime similar in nature to or related to a petition for relief from forfeiture the the illegal bringing in, harboring, mere existence of a community prop- transportation, entry, reentry, or im- erty interest without proof of financial portation of aliens. contribution to the purchase of a con- (r) The term reputation means repute veyance will not be deemed a property for related crimes with a law enforce- interest. Ownership is the interest that ment agency or among law enforce- an owner has in a conveyance. ment officers or in the community gen- (l) The term person means an individ- erally, including any pertient neigh- ual, partnership, corporation, joint borhood or other area. business enterprise, or other entity ca- (s) The term seizure means the act of pable of owning a conveyance. taking a conveyance into the custody (m) The term petitioner means a per- of the Service for the express purpose son filing a petition for relief from for- of considering forfeiture pursuant to feiture of a seized conveyance. section 274(b) of the Act and this part. (n) The term property interest means (t) The term state means any state or ownership, lien, or other legally cog- any like political division of any geo- nizable interest in or legal entitlement graphical territory defined in section to possession of a conveyance existing 101(a)(38) of the Act as being part of the on the date of seizure of the convey- United States or any state or any like ance. A person who has complied with political division of any geographical the state formalities of a title or a reg- territory of any other nation or terri- istration for a conveyance may not tory, unless otherwise limited in this have sufficient actual beneficial inter- part.

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(u) The term sufficient actual bene- veyance is later declared forfeited. Any ficial interest means the interest in a provision of any state law which recog- conveyance of a beneficial owner. nizes a continuing property interest or (v) The term violator means a person right to reinstatement of a property in- whose use of or actions with regard to terest in a conveyance has no effect a conveyance in violation of the law after the date of the seizure of the con- subjected the conveyance to seizure veyance, if the conveyance is later de- pursuant to section 274(b) of the Act clared forfeited. and this part. (c) The custodian is authoized to execute a document of title to convey § 274.2 Officers authorized to seize ownership of a conveyance declared conveyances. forfeited pursuant to section 274(b) of For the purpose of carrying out the the Act and this part. provisions of section 274(b) of the Act and this part, any immigration officer § 274.5 Return to owner of seized con- is authorized and designated by the veyance not subject to forfeiture; Commissioner to seize a conveyance. opportunity for personal interview. (a) The Service shall attempt with § 274.3 Custody and duties of custo- due diligence to ascertain the owner- dian. ship of any conveyance seized pursuant Any conveyance seized pursuant to to section 274(b) of the Act and this section 274(b) of the Act and this part part, in order to determine whether the shall be stored in a location designated conveyance is subject to forfeiture. by the custodian. The custodian is to (b) The following conveyances are receive and maintain in storage all not subject to forfeiture: conveyances seized and all conveyances (1) A conveyance used by any person forfeited pursuant to section 274(b) of as a common carrier, unless it appears the Act and this part. After the custo- that the owner or other person in dian is notified that all proceedings, charge was a consenting party or privy administrative or judicial, have been to the illegal use of the conveyance; completed and that all petitions for re- and lief from forfeiture have been finally (2) A conveyance established by the adjudicated, a conveyance is available owner to have been unlawfully in the for disposition according to law. The possession of a person other than the custodian is authorized to dispose of owner in violation of the criminal laws any conveyances pursuant to section of the United States or of any state of 274(b) of the Act and any other applica- the United States as defined in section ble statutes or regulations relative to 101(a)(38) of the Act. disposal; and to perform other duties, (c) The owner of a seized conveyance not inconsistent with the provisions of shall be informed of the right to re- the Act, regarding seized and forfeited quest a personal interview with an im- conveyances and the proceeds of sales migration officer and to present evi- thereof, as are imposed on the U.S. dence to establish: Customs Service with respect to sei- (1) That the conveyance was not sub- zures under the Customs statutes, in- ject to seizure; or cluding the maintenance of appropriate (2) That the conveyance is not sub- records concerning the seizure and dis- ject to forfeiture; or position of conveyances. (3) That the conveyance was used in an act to which the owner was not § 274.4 Conveyances subject to seizure; privy, or did not consent, and the termination of interest. owner took all reasonable steps to pre- (a) Any conveyance which an immi- vent the illegal use of the conveyance. gration officer has probable cause to If it is determined that the owner has believe has been or is being used in the established that paragraphs (c)(1) or commission of a violation of section (c)(2) of this section apply to the seized 274(a) of the Act is subject to seizure. conveyance, that seized conveyance (b) Any property interest in a con- shall be returned to the owner as pro- veyance is automatically terminated vided in paragraph (e) of this section; as of the date of the seizure, if the con- and if it is determined that the owner

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has established that paragraph (c)(3) of § 274.6 Proof of property interest. this section applies to the seized con- The burden of proof is on a claimant veyance, that seized conveyance may to establish that the asserted property be returned to the owner as provided in interest in a seized conveyance existed paragraph (d) of this section. on the date of seizure of that convey- (d) At any time after seizure the re- ance by submission of sufficient satis- gional commissioner may determine factory original documentation or cer- that it is in the best interests of justice tified copies of the original documenta- not to pursue forfeiture of a seized con- tion. If the claimant fails to present veyance which is otherwise subject to documentation showing compliance forfeiture. If such a determination is with required state formalities it will made, that seized conveyance shall be be presumed that a property interest in returned to the owner as provided in a seized conveyance did not exist on paragraph (e) of this section. the date of seizure of that conveyance. (e) The owner of a seized conveyance to be returned pursuant to paragraphs § 274.7 Appraisal. (c) or (d) of this section will be notified The regional commissioner shall de- of the conditions of obtaining posses- termine the appraised value of a seized sion and that possession of the seized conveyance by consulting accepted ref- conveyance must be taken within 20 erence guides to conveyance values or days of receipt of notice of the avail- experts in conveyance values. If there ability of the seized conveyance for re- is no market for a conveyance at the turn. If the owner has not complied place of seizure, the value of the con- with the conditions of obtaining pos- veyance in the principal market near- session and taken possession of the est the place of seizure shall be consid- seized conveyance within that 20 day ered. period, that seized conveyance shall be considered voluntarily abandoned to § 274.8 Notice to owner and lienholder the United States, and the custodian of seizure. shall dispose of that seized conveyance Whenever a conveyance is seized, a as provided in § 274.3 of this part. The notice must be given to the owner and conditions of obtaining possession of a any known lienholder notifying them seized conveyance available for return of the seizure of the conveyance and its pursuant to paragraphs (c) and (d) of consideration for forfeiture. The notice this section are as follows: must be accompanied by copies of this (1) If paragraph (c)(1) of this section part, section 274 of the Act, and the applies to the seized conveyance, there proposed advertisement, if an adver- shall be no conditions for obtaining tisement is required pursuant to § 274.9 possession; of this part. The owner shall be specifi- (2) If paragraphs (c)(2), (c)(3), or (d) of cally informed of the provisions of this section apply to the seized convey- §§ 274.5, 274.10, 274.13, 274.14, 274.15, ance, the owner shall pay all costs and 274.16, and 274.17 of this part. expenses of seizure and shall execute an instrument holding the United § 274.9 Advertisement. States, its agents and employees, (a) If the appraised value of a seized harmless from all claims which may conveyance does not exceed the mone- result from the seizure and return of tary amount set forth in title 19 U.S.C. the seized conveyance. 1607 the regional commissioner shall (f) If a seized conveyance being re- cause an advertisement of the seizure turned to the owner pursuant to this to be published once a week for at least section is the subject of judicial for- three successive weeks in a newspaper feiture proceedings, the regional com- of general circulation in the federal ju- missioner shall notify the United dicial district in which the seizure oc- States Attorney that a determination curred. has been made that the seized convey- (b) The advertisement must: ance is to be returned to the owner and (1) Describe the conveyance seized request that the judicial forfeiture pro- and indicate the identification number, ceedings be terminated. if any;

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(2) State the time and place of sei- (c) The filing of a claim and a bond zure; does not entitle the claimant to posses- (3) State that the seized conveyance sion of the conveyance. is subject to forfeiture except as pro- [53 FR 43187, Oct. 26, 1988, as amended at 56 vided in § 274.5(b) of this part; FR 8686, Mar. 1, 1991] (4) State that the Service is considering forfeiture of the seized conveyance § 274.11 Administrative forfeiture. and sale or other disposal, if declared If the appraised value of a seized con- forfeited; and veyance does not exceed the monetary (5) State that any prospective peti- amount set forth in title 19 U.S.C. 1607, tioners for relief from forfeiture should and a claim and a bond are not filed submit their petitions pursuant to within 20 days of the date of first publi- §§ 274.13, 274.14, 274.15, 274.16, and 274.17 cation of the advertisement as provided of this part within 30 days of publica- in § 274.9 of this part, the regional com- tion of the advertisement. missioner may declare the seized con- [53 FR 43187, Oct. 26, 1988, as amended at 56 veyance forfeited. The regional com- FR 8686, Mar. 1, 1991] missioner shall execute the declaration of forfeiture. The custodian shall dis- § 274.10 Judicial forfeiture proceed- pose of the forfeited conveyance as pro- ings upon claim and bond. vided in § 274.3 of this part. (a) Any person claiming ownership of [53 FR 43187, Oct. 26, 1988, as amended at 56 a seized conveyance with an appraised FR 8686, Mar. 1, 1991] value that does not exceed the monetary amount set forth in title 19 U.S.C. § 274.12 Judicial forfeiture. 1607, may obtain judicial forfeiture pro- If the appraised value of a seized con- ceedings in United States District veyance exceeds the monetary amount Court by filing a claim and a bond as set forth in title 19 U.S.C. 1607, or a follows: claim and a bond have been filed for a (1) The claim must set forth the basis seized conveyance with an appraised of the claimed ownership and allege value that does not exceed the mone- why the conveyance was not subject to tary amount set forth in title 19 U.S.C. seizure; 1607, as provided in § 274.10(a) of this (2) The claim must be filed in the of- part, the regional commissioner shall fice specified in the notice and the ad- transmit the claim and bond, as well as vertisement as provided in § 274.8 and a copy of the advertisement as pro- § 274.9 of this part within 20 days of the vided in § 274.9 of this part and a com- date of first publication of the adver- plete statement of the facts and cir- tisement; cumstances surrounding the seizure to (3) The claim must be accompanied the United States Attorney for the fed- by a bond in the amount of the lesser eral judicial district in which the con- of $5,000 or ten percent of the appraised veyance was seized for commencement value of the seized conveyance, but in of judicial forfeiture proceedings pur- no event less than $250, in the form of suant to section 274(b) of the Act and cash or certified check; and this part. (4) If the bond is in the form of a [53 FR 43187, Oct. 26, 1988, as amended at 56 check, it must be drawn payable to the FR 8686, Mar. 1, 1991] Department of Justice. The costs and expenses of the judicial forefeiture pro- § 274.13 Petitions for relief from for- ceedings will be paid from the bond, feiture; filing. following completion of the proceed- (a) Any person having a property in- ings. Any balance remaining shall be terest in any seized conveyance may returned to the claimant. file a petition for relief from forfeiture. (b) The regional commissioner may A petition must comply with the provi- waive the bond requirement in the sions of this section and §§ 274.14, 274.15, manner provided in § 103.7(c)(1) of this 274.16, and 274.17 of this part and be chapter. filed with the regional commissioner if

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the seized conveyance has not been re- a seized conveyance has been declared ferred to a United States Attorney pur- forfeited and placed in official use, suant to § 274.12 of this part for the sold, or otherwise disposed of according commencement of judicial forfeiture to law, petitions for the reliefs of re- proceedings. If such a referral has oc- mission or mitigation of forfeiture curred, a petition must comply with shall not be accepted. the provisions of 28 CFR 9.3 and be filed (b) Petitions for the relief of restora- with the United States Attorney. tion of proceeds of sale or the appraised (b) A petition must be executed and value of a seized and forfeited convey- sworn to by the petitioner or by duly ance placed in official use or otherwise authorized counsel for the petitioner disposed of according to law must be upon information and belief. filed within 90 days of the sale of the (c) A petition must include the fol- seized and forfeited conveyance or lowing: within 90 days that the seized and for- (1) A complete description of the con- feited conveyance is placed in official veyance, including identification num- use or otherwise disposed of according ber, if any, and the date and place of to law. seizure; (2) A complete statement of the prop- § 274.15 Remission. erty interest in the seized conveyance (a) The regional commissioner shall asserted by the petitioner, which prop- not grant remission of forfeiture unless erty interest must be established as the petitioner establishes: provided in § 274.6 of this part; and (1) A property interest in the convey- (3) The facts and circumstances, with ance; satisfactory proof thereof, relied upon by the petitioner to justify relief from (2) That at no time did the petitioner forfeiture. have any knowledge or reason to be- (d) Filing of a petition does not ex- lieve that the conveyance was being or tend the time for filing a claim and a would be used in violation of the law, bond. including satisfying any applicable (e) If a petition is received by or a pe- provisions of § 274.18 of this part; tition without a determination issued (3) That the petitioner had no thereon is in the possession of the re- knowldege of the particular violation gional commissioner which asserts a which subjected the conveyance to sei- property interest in a seized convey- zure and forfeiture; ance which is the subject of a referral (4) That the petitioner had no knowl- to a United States Attorney for com- edge that the owner nor anyone else mencement of judicial forfeiture pro- using or able to use the conveyance ceedings, the regional commissioner had any record or reputation; had shall transmit the petition and a rec- (5) That the petitioner had taken all ommendation thereon to the United reasonable steps to prevent the illegal States Attorney. The regional commis- use of the conveyance. sioner shall notify the petitioner of the (b) Remission of forfeiture can only transmittal. Upon receipt of such a pe- be granted after a seized conveyance tition, the United States Attorney has been declared forfeited. shall forward a copy of the petition, (c) Grant of remission of forfeiture the recommendation of the regional must be conditioned upon: commissioner, and the recommenda- (1) Payment to the custodian of all tion of the United States Attorney to costs and expenses of the seizure and the Director, Asset Forfeiture Office, forfeiture; or, in the case of a Criminal Division, Department of Jus- lienholder-petitioner, payment of all tice. costs and expenses of the seizure and forfeiture or the amount by which the § 274.14 Time for filing petitions. appraised value exceeds the net equity (a) Petitions for the reliefs of remis- of the lienholder-petitioner in the con- sion or mitigation of forfeitute should veyance, whichever is greater; be filed within 30 days of the date of (2) Execution of an instrument by the first publication of the advertisement petitioner holding the United States, as provided in § 274.9 of this part. After its agents and employees, harmless

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from all claims which may result from graph (e)(2) of this section, the for- the grant of remission of forfeiture; feited conveyance shall be placed in of- (3) Execution of an agreement by the ficial use, sold, or otherwise disposed of petitioner that no property interest in by the custodian as provided in § 274.3 the conveyance will be transferred to of this part. The proceeds of a sale any violator; and shall be applied first to all costs and (4) Any other terms or conditions as expenses of the seizure, forfeiture, and the regional commissioner determines sale and any remaining balance not ex- to be appropriate, including a provision ceeding the net equity of that for liquidated damages to guarantee lienholder-petitioner shall be paid to compliance with any of the provisions that lienholder-petitioner. If the for- of the agreement or terms and condi- feited conveyance is placed in official tions of the remission of forfeiture. use or otherwise disposed of, that (d) The following provisions apply lienholder-petitioner shall be paid the only to an owner-petitioner that is net equity of that lienholder-petitioner granted remission of forfeiture: minus all costs and expenses of the sei- (1) Within 20 days after receipt of the zure, forfeiture, and disposal. determination, that owner-petitioner shall comply with the conditions of re- § 274.16 Mitigation. mission and take possession of the for- (a) The regional commissioner may feited conveyance; and grant mitigation of forfeiture of a (2) If that owner-petitioner does not seized conveyance to a petitioner, in- comply with the provisions of para- cluding a violator. To be eligible for graph (d)(1) of this section, the for- the relief of mitigation of forfeiture, a feited conveyance shall be placed in of- petitioner must establish that transfer ficial use, sold, or otherwise disposed of of ownership of the forfeited convey- by the custodian as provided in § 274.3 ance to the petitioner promotes the in- of this part. The proceeds of a sale of terests of justice and does not diminish the forfeited conveyance shall be ap- the deterrent effect of section 274(b) of plied first to all costs and expenses of the Act. the seizure, forfeiture, and sale and any remaining balance shall be paid to that (b) A grant of mitigation of forfeiture owner-petitioner. If the forfeited con- shall be in the form of a monetary pen- veyance is placed in official use or oth- alty imposed upon the petitioner in ad- erwise disposed of, that owner-peti- dition to any other amounts charge- tioner shall be paid an amount equal to able as a condition to the grant of the the appraised value of the conveyance relief of remission of forfeiture. This minus all costs and expenses of the sei- penalty is considered as an item of cost zure, forfeiture, and disposal. payable by the petitioner. (e) The following provisions apply (c) Mitigation of forfeiture can only only to a lienholder-petitioner that is be granted after a seized conveyance granted remission of forfeiture: has been declared forfeited. (1) That lienholder-petitioner shall (d) A grant of mitigation of forfeiture receive payment of the net equity of must be conditioned upon: that lienholder-petitioner, if the for- (1) Execution of an instrument by the feited conveyance is placed in official petitioner holding the United States, use or otherwise disposed of according its agents and employees, harmless to law; or either possession of the for- from all claims which may result from feited conveyance, or a monetary the grant of mitigation of forfeiture; amount not to exceed the net equity of (2) Execution of an agreement that that lienholder-petitioner from a sale no property interest in the conveyance of the forfeited conveyance; will be transferred to any violator, or (2) Within 20 days after receipt of the any other violator if the petitioner is a determination, that lienholder-peti- violator; and tioner shall comply with the conditions (3) Any other terms or conditions as of remission and take possession of the the regional commissioner determines forfeited conveyance; and to be appropriate, including a provision (3) If that lienholder-petitioner does for liquidated damages to guarantee not comply with the provisions of para- compliance with any provisions of the

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agreement or terms and conditions of use or otherwise disposed of, that the mitigation of forfeiture. lienholder-petitioner shall be paid the (e) The following provisions apply net equity of that lienholder-petitioner only to an owner-petitioner that is minus all costs and expenses of the sei- granted mitigation of forfeiture: zure, forfeiture, and disposal. (1) Within 20 days after receipt of the determination, that owner-petitioner § 274.17 Restoration of proceeds or ap- shall comply with the conditions of praised value. mitigation and take possession of the (a) The regional commissioner shall forfeited conveyance; and not grant restoration of proceeds of (2) If that owner-petitioner does not sale or the appraised value of a convey- comply with the provisions of para- ance placed in official use or otherwise graph (e)(1) of this section, the for- disposed of according to law unless the feited conveyance shall be placed in of- petitioner establishes that the peti- ficial use, sold, or otherwise disposed of tioner: by the custodian under § 274.3 of this (1) Did not know of the seizure prior part. The proceeds of a sale of the for- to the declaration of forfeiture; feited conveyance shall be applied first (2) Was in such circumstances as pre- to all costs and expenses of the seizure, vented the petitioner from knowing forfeiture, and sale and any remaining thereof; and balance shall be paid to that owner-pe- (3) Would otherwise have been grant- titioner. If the forfeited conveyance is ed the relief of remission of forfeiture. placed in official use or otherwise dis- (b) A grant of restoration of proceeds posed of, that owner-petitioner shall be of sale or the appraised value of a con- paid an amount equal to the appraised veyance placed in official use or other- value of the conveyance minus all costs wise disposed of according to law must and expenses of the seizure, forfeiture, be conditioned upon: and disposal. (1) Execution of an instrument by the (f) The following provisions apply petitioner holding the United States, only to a lienholder-petitioner that is its agents and employees, harmless granted mitigation of forfeiture: from all claims which may result from (1) That lienholder-petitioner shall the grant of restoration of proceeds of receive payment of the net equity of sale or the appraised value of a convey- that lienholder-petitioner, if the for- ance placed in official use or otherwise feited conveyance is retained for offi- disposed of according to law; and cial use; or either possession of the for- (2) Any other terms or conditions as feited conveyance, or a monetary the regional commissioner determines amount not to exceed the net equity of to be appropriate. that lienholder-petitioner from the sale of the forfeited conveyance; § 274.18 Provisions applicable to par- (2) Within 20 days after receipt of the ticular situations. determination, that lienholder-peti- (a) A straw purchaser is a person who tioner shall comply with the conditions purchases in his own name a convey- of mitigation and take possession of ance for another person, the real pur- the forfeited conveyance; and chaser, who has a record or reputation. (3) If the lienholder-petitioner does A lienholder-petitioner that knows, or not comply with the provisions of para- has reason to believe, that a purchaser graph (f)(2) of this section, the forfeited of a conveyance is a straw purchaser, conveyance shall be placed in official must satisfy the requirements of use, sold, or otherwise disposed of by § 274.15(a) of this part as to both the the custodian as provided in § 274.3 of straw purchaser and the real purchaser this part. The proceeds of a sale shall to be eligible for a grant of remission be applied first to all costs and ex- of forfeiture. This provision applies penses of the seizure, forfeiture, and where money is borrowed on the secu- sale and any remaining balance not ex- rity of property held in the name of the ceeding the net equity of that straw purchaser for the real purchaser. lienholder-petitioner shall be paid to (b) A petitioner engaged in the busi- that lienholder-petitioner. If the for- ness of leasing conveyances must sat- feited conveyance is placed in official isfy the requirements of § 274.15(a) of

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this part as to all lessees and subles- (d) The determination on a petition sees or other persons having any inter- shall set forth either the conditions est under a lease of the subject convey- upon which relief has been granted and ance on the date of seizure of that con- the procedures for obtaining possession veyance to be eligible for a grant of re- of the forfeited conveyance or other remission of forfeiture. lief granted; or the reasons for denial (c) In the consideration of a petition of relief from forfeiture and the proce- for relief from forfeiture the mere ex- dures for requesting reconsideration. istence of a community property inter- The determination on a petition shall est without proof of financial contribu- be mailed to the petitioner or duly au- tion to the purchase of a conveyance thorized counsel of the petitioner. will not be deemed to have been a prop- (e) Any request for reconsideration of erty interest in a seized and forfeited a denial of relief from forfeiture must conveyance. be submitted to the regional commis- (d) A petitioner that submits a peti- sioner within 10 days of receipt of the tion for remission of forfeiture as a determination on the petition. Such re- subrogee must satisfy the requirements quest for reconsideration can only be of § 274.15(a) of this part as to all prior based on evidence recently developed possessors of the subrogated interest in or not previously considered. the seized and forfeited conveyance to (f) Only one request for reconsider- be eligible for a grant of remission of ation of a denial of relief from forfeit- forfeiture. ure shall be considered.

§ 274.19 Determinations on petitions; § 274.20 Compromise of judicial forfeit- reconsideration. ure proceedings. (a) Upon consideration of a petition Judicial forfeiture proceedings com- for relief from forfeiture and all of the menced pursuant to section 274(b) of facts and circumstances surrounding the Act and this part may be com- the seizure of a conveyance, the re- promised by the United States Attor- gional commissioner shall issue a writ- ney only with the concurrence of the ten determination. In making that de- Director, Asset Forfeiture Office, termination the regional commissioner Criminal Division, Department of Jus- shall presume that the evidence is suf- tice. In evaluating a compromise, the ficient to support forfeiture of the con- United States Attorney shall consider veyance. No hearing shall be held on the probabilities for successfully pros- any petitions for relief from forfeiture ecuting the judicial forfeiture proceed- under this part. ings and the terms of the compromise (b) The regional commissioner may offer. The United States Attorney shall deny relief from forfeiture when there consult with the regional commis- are unusual circumstances regarding a sioner before recommending a com- seizure which provide reasonable promise. grounds for concluding that remission or mitigation of the forfeiture would be PART 274a—CONTROL OF contrary to the interests of justice and EMPLOYMENT OF ALIENS would diminish the deterrent effect of section 274(b) of the Act, even if the pe- Subpart A—Employer Requirements titioner has satisfactorily established compliance with the administrative Sec. 274a.1 Definitions. conditions applicable to and eligibility 274a.2 Verification of employment eligi- for relief from forfeiture. bility. (c) Relief from forfeiture shall not be 274a.3 Continuing employment of unauthor- granted to any petitioner who has a ized aliens. subordinate property interest to an- 274a.4 Good faith defense. other petitioner until the petition of 274a.5 Use of labor through contract. the petitioner with the superior prop- 274a.6 State employment agencies. 274a.7 Pre-enactment provisions for em- erty interest has been finally adju- ployees hired prior to November 7, 1986. dicated nor until any claim or petition 274a.8 Prohibition of indemnity bonds. of the owner has been finally adju- 274a.9 Enforcement procedures. dicated. 274a.10 Penalties.

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274a.11 [Reserved] to another with the intent of obtaining employment for that person, for remu- Subpart B—Employment Authorization neration whether on a retainer or con- 274a.12 Classes of aliens authorized to ac- tingency basis; however, this term does cept employment. not include union hiring halls that 274a.13 Application for employment author- refer union members or non-union indi- ization. viduals who pay union membership 274a.14 Termination of employment author- dues; ization. (f) The term employee means an indi- AUTHORITY: 8 U.S.C. 1101, 1103, 1324a; 8 CFR vidual who provides services or labor part 2. for an employer for wages or other re- SOURCE: 52 FR 16221, May 1, 1987, unless muneration but does not mean inde- otherwise noted. pendent contractors as defined in paragraph (j) of this section or those en- Subpart A—Employer gaged in casual domestic employment Requirements as stated in paragraph (h) of this section; § 274a.1 Definitions. (g) The term employer means a person For the purpose of this part— or entity, including an agent or anyone (a) The term unauthorized alien acting directly or indirectly in the in- means, with respect to employment of terest thereof, who engages the serv- an alien at a particular time, that the ices or labor of an employee to be per- alien is not at that time either: (1) formed in the United States for wages Lawfully admitted for permanent resi- or other remuneration. In the case of dence, or (2) authorized to be so em- an independent contractor or contract ployed by this Act or by the Attorney labor or services, the term employer General; shall mean the independent contractor (b) The term entity means any legal or contractor and not the person or en- entity, including but not limited to, a tity using the contract labor; corporation, partnership, joint venture, (h) The term employment means any governmental body, agency, proprietor- service or labor performed by an em- ship, or association; ployee for an employer within the (c) The term hire means the actual United States, including service or commencement of employment of an labor performed on a vessel or aircraft employee for wages or other remunera- that has arrived in the United States tion. For purposes of section 274A(a)(4) and has been inspected, or otherwise of the Act and § 274a.5 of this part, a included within the provisions of the hire occurs when a person or entity Anti-Reflagging Act codified at 46 uses a contract, subcontract or ex- U.S.C. 8704, but not including duties change entered into, renegotiated or performed by nonimmigrant crewmen extended after November 6, 1986, to ob- defined in sections 101 (a)(10) and tain the labor of an alien in the United (a)(15)(D) of the Act. However, employ- States, knowing that the alien is an ment does not include casual employ- unauthorized alien; ment by individuals who provide do- (d) The term refer for a fee means the mestic service in a private home that act of sending or directing a person or is sporadic, irregular or intermittent; transmitting documentation or infor- (i) The term State employment agency mation to another, directly or indi- means any State government unit des- rectly, with the intent of obtaining em- ignated to cooperate with the United ployment in the United States for such States Employment Service in the op- person, for remuneration whether on a eration of the public employment serv- retainer or contingency basis; however, ice system; this term does not include union hiring (j) The term independent contractor halls that refer union members or non- includes individuals or entities who union individuals who pay union mem- carry on independent business, con- bership dues; tract to do a piece of work according to (e) The term recruit for a fee means their own means and methods, and are the act of soliciting a person, directly subject to control only as to results. or indirectly, and referring that person Whether an individual or entity is an

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independent contractor, regardless of their face reasonably appear to be gen- what the individual or entity calls it- uine and to relate to the individual. self, will be determined on a case-by- [52 FR 16221, May 1, 1987, as amended at 53 case basis. Factors to be considered in FR 8612, Mar. 16, 1988; 55 FR 25931, June 25, that determination include, but are not 1990; 56 FR 41783, Aug. 23, 1991] limited to, whether the individual or entity: supplies the tools or materials; § 274a.2 Verification of employment eligibility. makes services available to the general public; works for a number of clients at (a) General. This section states the the same time; has an opportunity for requirements and procedures persons profit or loss as a result of labor or or entities must comply with when hir- services provided; invests in the facili- ing, or when recruiting or referring for a fee, or when continuing to employ in- ties for work; directs the order or se- dividuals in the United States. For pur- quence in which the work is to be done poses of complying with section 274A(b) and determines the hours during which of the Act and this section, all ref- the work is to be done. The use of labor erences to recruiters and referrers for a or services of an independent contrac- fee are limited to a person or entity tor are subject to the restrictions in who is either an agricultural associa- section 274A(a)(4) of the Act and § 274a.5 tion, agricultural employer, or farm of this part; labor contractor (as defined in section (k) The term pattern or practice 3 of the Migrant and Seasonal Agricul- means regular, repeated, and inten- tural Worker Protection Act, 29 U.S.C. tional activities, but does not include 1802). The Form I–9, Employment Eligi- isolated, sporadic, or accidental acts; bility Verification Form, has been des- (l)(1) The term knowing includes not ignated by the Service as the form to only actual knowledge but also knowl- be used in complying with the require- edge which may fairly be inferred ments of this section. The Form I–9 through notice of certain facts and cir- may be obtained in limited quantities cumstances which would lead a person, at INS District Offices, or ordered from through the exercise of reasonable the Superintendent of Documents, care, to know about a certain condi- Washington, DC 20402. Employers may electronically generate blank Forms I– tion. Constructive knowledge may in- 9, provided that: the resulting form is clude, but is not limited to, situations legible; there is no change to the name, where an employer: content, or sequence of the data ele- (i) Fails to complete or improperly ments and instructions; no additional completes the Employment Eligibility data elements or language are inserted; Verification Form, I–9; and the paper used meets the standards (ii) Has information available to it for retention and production for inspec- that would indicate that the alien is tion specified under § 274a.2(b). When not authorized to work, such as Labor copying or printing the Form I–9, the Certification and/or an Application for text of the two-sided form may be re- Prospective Employer; or produced by making either double- (iii) Acts with reckless and wanton sided or single-sided copies. Employers disregard for the legal consequences of need only complete the Form I–9 for in- permitting another individual to intro- dividuals who are hired after November duce an unauthorized alien into its 6, 1986 and continue to be employed work force or to act on its behalf. after May 31, 1987. Employers shall (2) Knowledge that an employee is have until September 1, 1987 to com- unauthorized may not be inferred from plete the Form I–9 for individuals hired from November 7, 1986 through May 31, an employee’s foreign appearance or 1987. Recruiters and referrers for a fee accent. Nothing in this definition need complete the Form I–9 only for should be interpreted as permitting an those individuals who are recruited or employer to request more or different referred and hired after May 31, 1987. In documents than are required under sec- conjunction with completing the Form tion 274(b) of the Act or to refuse to I–9, an employer or recruiter or refer- honor documents tendered that on rer for a fee must examine documents

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that evidence the identity and employ- and (b)(1)(ii)(B) of this section at the ment eligibility of the individual. The time of the hire. A receipt for the ap- employer or recruiter or referrer for a plication of such documentation, as de- fee and the individual must each com- scribed in paragraph (b)(1)(vi) of this plete an attestation on the Form I–9 section, may not be accepted by the under penalty of perjury. employer. (b) Employment verification require- (iv) A recruiter or referrer for a fee ments—(1) Examination of documents and for employment must comply with completion of Form I–9. paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) (i) A person or entity that hires or of this section within three business recruits or refers for a fee an individual days of the date the referred individual for employment must ensure that the is hired by the employer. Recruiters individual properly: and referrers may designate agents to (A) Complete section 1—‘‘Employee complete the employment verification Information and Verification’’—on the procedures on their behalf including Form I–9 at the time of hire; or if an but not limited to notaries, national individual is unable to complete the associations, or employers. If a re- Form I–9 or needs it translated, some- cruiter or referrer designates an em- one may assist him or her. The pre- ployer to complete the employment parer or translator must read the Form verification procedures, the employer to the individual, assist him or her in need only provide the recruiter or re- completing Section 1—‘‘Employee In- ferrer with a photocopy of the Form I– formation and Verification,’’ and have 9. the individual sign or mark the Form (v) The individual may present either in the appropriate place. The preparer an original document which establishes or translator must then complete the both employment authorization and ‘‘Preparer/Translator Certification’’ identity, or an original document portion of the Form I–9; and which establishes employment author- (B) Present to the employer or the ization and a separate original docu- recruiter or referrer for a fee document which establishes identity. The mentation as set forth in paragraph identification number and expiration (b)(1)(v) of this section establishing his date (if any) of all documents must be or her identity and employment eligi- noted in the appropriate space provided bility within the time limits set forth on the Form I–9. in paragraphs (b)(1)(ii) through (b)(1)(v) (A) The following documents, so long of this section. as they appear to relate to the individ- (ii) Except as provided in paragraph ual presenting the document, are ac- (b)(1)(viii) of this section, an employer, ceptable to evidence both identity and his or her agent, or anyone acting di- employment eligibility: rectly or indirectly in the interest thereof, must within three business (1) United States passport (unexpired days of the hire: or expired); (A) Physically examine the docu- (2) Certificate of United States Citi- mentation presented by the individual zenship, INS Form N–560 or N–561; establishing identity and employment (3) Certificate of Naturalization, INS eligibility as set forth in paragraph Form N–550 or N–570; (b)(1)(v) of this section and ensure that (4) An unexpired foreign passport the documents presented appear to be which: genuine and to relate to the individual; (i) Contains an unexpired stamp and therein which reads, ‘‘Processed for I– (B) Complete section 2—‘‘Employer 551. Temporary Evidence of Lawful Ad- Review and Verification’’—of the Form mission for permanent residence. Valid I–9. until lll. Employment authorized.’’ (iii) An employer, his or her agent, or or anyone acting directly or indirectly in (ii) Has attached thereto a Form I–94 the interest thereof, who hires an indi- bearing the same name as the passport vidual for employment for duration of and contains an employment author- less than three business days must ization stamp, so long as the period of comply with paragraphs (b)(1)(ii)(A) endorsement has not yet expired and

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the proposed employment is not in con- (iii) Daycare or nursery school flict with any restrictions or limita- record. tions identified on the Form I–94. (3) Minors under the age of 18 who are (5) Alien Registration Receipt Card, unable to produce one of the identity INS Form I–551; documents listed in paragraph (6) An unexpired Employment Au- (b)(1)(v)(B) (1) or (2) of this section are thorization Document issued by the exempt from producing one of the enu- Immigration and Naturalization Serv- merated identity documents if: ice which contains a photograph, Form (i) The minor’s parent or legal guard- I–766; Form I–688, Form I–688A, or Form ian completes on the Form I–9 Section I–688B; 1—‘‘Employee Information and Ver- (7) [Reserved] ification’’ and in the space for the mi- (8) An unexpired reentry permit, INS nor’s signature, the parent or legal Form I–327; guardian writes the words, ‘‘minor (9) An unexpired Refugee Travel doc- under age 18.’’ ument, INS Form I–571; (ii) The minor’s parent or legal (10) [Reserved] guardian completes on the Form I–9 (B) The following documents are ac- the ‘‘Preparer/Translator certifi- ceptable to establish identity only: cation.’’ (1) For individuals 16 years of age or (iii) The employer or the recruiter or older: referrer for a fee writes in Section 2— (i) A driver’s license or identification ‘‘Employer Review and Verification’’ card containing a photograph, issued under List B in the space after the by a state (as defined in section # 101(a)(36) of the Act) or an outlying words ‘‘Document Identification ’’ the possession of the United States (as de- words, ‘‘minor under age 18.’’ fined by section 101(a)(29) of the Act). If (4) Individuals with handicaps, who the driver’s license or identification are unable to produce one of the iden- card does not contain a photograph, tity documents listed in paragraph identifying information shall be in- (b)(1)(v)(B) (1) or (2) of this section, cluded such as: name, date of birth, who are being placed into employment sex, height, color of eyes, and address; by a nonprofit organization, associa- (ii) School identification card with a tion or as part of a rehabilitation pro- photograph; gram, may follow the procedures for es- (iii) Voter’s registration card; tablishing identity provided in this sec- (vi) U.S. military card or draft tion for minors under the age of 18, record; substituting where appropriate, the (v) Identification card issued by fed- term ‘‘special placement’’ for ‘‘minor eral, state, or local government agen- under age 18’’, and permitting, in addi- cies or entities. If the identification tion to a parent or legal guardian, a card does not contain a photograph, representative from the nonprofit orga- identifying information shall be in- nization, association or rehabilitation cluded such as: name, date of birth, program placing the individual into a sex, height, color of eyes, and address; position of employment, to fill out and (vi) Military dependent’s identifica- sign in the appropriate section, the tion card; Form I–9. For purposes of this section (vii) Native American tribal docu- the term individual with handicaps ments; means any person who (viii) United States Coast Guard Mer- (i) Has a physical or mental impair- chant Mariner Card; ment which substantially limits one or (ix) Driver’s license issued by a Cana- more of such person’s major life activi- dian government authority; ties, (2) For individuals under age 18 who (ii) Has a record of such impairment, are unable to produce a document list- or ed in paragraph (b)(1)(v)(B)(1) of this (iii) Is regarded as having such im- section, the following documents are pairment. acceptable to establish identity only: (C) The following are acceptable doc- (i) School record or report card; uments to establish employment au- (ii) Clinic doctor or hospital record; thorization only:

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(1) A social security number card tification number and expiration date other than one which has printed on its on the Form I–9. face ‘‘not valid for employment pur- (viii) An employer will not be deemed poses’’; to have hired an individual for employ- (2) A Certification of Birth Abroad is- ment if the individual is continuing in sued by the Department of State, Form his or her employment and has a rea- FS–545; sonable expectation of employment at (3) A Certification of Birth Abroad is- all times. sued by the Department of State, Form (A) An individual is continuing in his DS–1350; or her employment in one of the fol- (4) An original or certified copy of a lowing situations: birth certificate issued by a State, (1) An individual takes approved paid county, municipal authority or outly- or unpaid leave on account of study, ing possession of the United States illness or disability of a family mem- bearing an official seal; ber, illness or pregnancy, maternity or paternity leave, vacation, union busi- (5) Native American tribal document; ness, or other temporary leave ap- (6) United States Citizen Identifica- proved by the employer; tion Card, INS Form I–197; (2) An individual is promoted, de- (7) Identification card for use of resi- moted, or gets a pay raise; dent citizen in the United States, INS (3) An individual is temporarily laid Form I–179; off for lack of work; (8) An unexpired employment author- (4) An individual is on strike or in a ization document issued by the Immi- labor dispute; gration and Naturalization Service. (5) An individual is reinstated after (vi) If an individual is unable to pro- disciplinary suspension for wrongful vide the required document or docu- termination, found unjustified by any ments within the time periods specified court, arbitrator, or administrative in paragraphs (b)(1) (ii) and (iv) of this body, or otherwise resolved through re- section, the individual must present a instatement or settlement; receipt for the application of the re- (6) An individual transfers from one placement document or documents distinct unit of an employer to another within three business days of the hire distinct unit of the same employer; the and present the required document or employer may transfer the individual’s documents within 90 days of the hire. Form I–9 to the receiving unit; This section is not applicable to an (7) An individual continues his or her alien who indicates that he or she does employment with a related, successor, not have work authorization at the or reorganized employer, provided that time of hire. the employer obtains and maintains (vii) If an individual’s employment from the previous employer records authorization expires, the employer, and Forms I–9 where applicable. For recruiter or referrer for a fee must re- this purpose, a related, successor, or verify on the Form I–9 to reflect that reorganized employer includes: the individual is still authorized to (i) The same employer at another lo- work in the United States; otherwise cation; the individual may no longer be em- (ii) An employer who continues to ployed, recruited, or referred. Rever- employ some or all of a previous em- ification on the Form I–9 must occur ployer’s workforce in cases involving a not later than the date work authoriza- corporate reorganization, merger, or tion expires. In order to reverify on the sale of stock or assets; Form I–9, the employee or referred in- (iii) An employer who continues to dividual must present a document that employ any employee of another em- either shows continuing employment ployer’s workforce where both employ- eligibility or is a new grant of work au- ers belong to the same multi-employer thorization. The employer or the re- association and the employee contin- cruiter or referrer for a fee must review ues to work in the same bargaining this document, and if it appears to be unit under the same collective bargain- genuine and to relate to the individual, ing agreement. For purposes of this reverify by noting the document’s iden- subsection, any agent designated to

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complete and maintain the Form I–9 individual in question indicates that it must record the employee’s date of hire is reasonably likely that the individual and/or termination each time the em- in question will resume employment ployee is hired and/or terminated by an with the employer within a reasonable employer of the multi-employer asso- time in the future. ciation; or (2) Retention and Inspection of Form I– (8) An individual is engaged in sea- 9. (i) Form I–9 must be retained by an sonal employment. employer or a recruiter or referrer for (B) The employer who is claiming a fee for the following time periods: that an individual is continuing in his (A) In the case of an employer, three or her employment must also establish years after the date of the hire or one that the individual expected to resume year after the date the individual’s em- employment at all times and that the ployment is terminated, whichever is individual’s expectation is reasonable. later; or Whether an individual’s expectation is (B) In the case of a recruiter or refer- reasonable will be determined on a rer for a fee, three years after the date case-by-case basis taking into consid- of the hire. eration several factors. Factors which (ii) Any person or entity required to would indicate that an individual has a retain Forms I–9 in accordance with reasonable expectation of employment this section shall be provided with at include, but are not limited to, the fol- least three days notice prior to an in- lowing: spection of the Forms I–9 by officers of (1) The individual in question was the Service, the Special Counsel for employed by the employer on a regular Immigration-Related Unfair Employ- and substantial basis. A determination ment Practices, or the Departmet of of a regular and substantial basis is es- Labor. At the time of inspection, tablished by a comparison of other Forms I–9 must be made available in workers who are similarly employed by their original form or on microfilm or the employer; microfiche at the location where the (2) The individual in question com- request for production was made. If plied with the employer’s established Forms I–9 are kept at another location, and published policy regarding his or the person or entity must inform the her absence; officer of the Service, the Special (3) The employer’s past history of re- Counsel for Immigration-Related Un- calling absent employees for employ- fair Employment Practices, or the De- ment indicates a likelihood that the partment of Labor of the location individual in question will resume em- where the forms are kept and make ar- ployment with the employer within a rangements for the inspection. Inspec- reasonable time in the future; tions may be performed at an INS of- (4) The former position held by the fice. A recruiter or referrer for a fee individual in question has not been who has designated an employer to taken permanently by another worker; complete the employment verification (5) The individual in question has not procedures may present a photocopy of sought or obtained benefits during his the Form I–9 in lieu of presenting the or her absence from employment with Form I–9 in its original form or on the employer that are inconsistent microfilm or microfiche, as set forth in with an expectation of resuming em- paragraph (b) (1) (iv) of this section. ployment with the employer within a Any refusal or delay in presentation of reasonable time in the future. Such the Forms I–9 for inspection is a viola- benefits include, but are not limited to, tion of the retention requirements as severance and retirement benefits; set forth in section 274A(b) (3) of the (6) The financial condition of the em- Act. No Subpoena or warrant shall be ployer indicates the ability of the em- required for such inspection, but the ployer to permit the individual in ques- use of such enforcement tools is not tion to resume employment within a precluded. In addition, if the person or reasonable time in the future; or entity has not complied with a request (7) The oral and/or written commu- to present the Forms I–9, any Service nication between employer, the em- officer listed in § 287.4 of this chapter ployer’s supervisory employees and the may compel production of the Forms I–

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9 and any other relevant documents by a properly completed Form I–9 for the issuing a subpoena. Nothing in this sec- employee, is in violation of section tion is intended to limit the Service’s 274A(a)(1)(B) of the Act and subpoena power under section 235(a) of § 274a.2(b)(2). the Act. (3) Copying of documentation. An em- (iii) The following standards shall ployer, or a recruiter or referrer for a apply to Forms I–9 presented on micro- fee may, but is not required to, copy a film or microfiche submitted to an offi- document presented by an individual cer of the Service, the Special Counsel solely for the purpose of complying for Immigration-Related Unfair Em- with the verification requirements of ployment Practices, or the Department this section. If such a copy is made, it of Labor: Microfilm, when displayed on must be retained with the Form I–9. a microfilm reader (viewer) or repro- The retention requirements in para- duced on paper must exhibit a high de- graph (b)(2) of this section do not apply gree of legibility and readability. For to the photocopies. The copying of any this purpose, legibility is defined as the such document and retention of the quality of a letter or numeral which copy does not relieve the employer enables the observer to positively and from the requirement to fully complete quickly identify it to the exclusion of section 2 of the Form I–9. An employer, all other letters or numerals. Read- recruiter or referrer for a fee should ability is defined as the quality of a not, however, copy the documents only group of letters or numerals being rec- of individuals of certain national ori- ognizable as words or whole numbers. gins or citizenship statuses. To do so A detailed index of all microfilmed may violate section 274B of the Act. data shall be maintained and arranged (4) Limitation on use of Form I–9. Any in such a manner as to permit the im- information contained in or appended mediate location of any particular to the Form I–9, including copies of record. It is the responsibility of the documents listed in paragraph (c) of employer, recruiter or referrer for a this section used to verify an individ- fee: ual’s identity or employment eligi- (A) To provide for the processing, bility, may be used only for enforce- storage and maintenace of all microfilm, and ment of the Act and sections 1001, 1028, (B) To be able to make the contents 1546, or 1621 of title 18, United States thereof available as required by law. Code. The person or entity presenting the (c) Employment verification require- microfilm will make available a read- ments in the case of hiring an individual er-printer at the examination site for who was previously employed. (1) When the ready reading, location and repro- an employer hires an individual whom duction of any record or records being that person or entity has previously maintained on microfilm. Reader- employed, if the employer has pre- printers made available to an officer of viously completed the Form I–9 and the Service, the Special Counsel for complied with the verification require- Immigration-Related Unfair Employ- ments set forth in paragraph (b) of this ment Practices, or the Department of section with regard to the individual, Labor shall provide safety features and the employer may (in lieu of complet- be in clean condition, properly main- ing a new Form I–9) inspect the pre- tained and in good working order. The viously completed Form I–9 and: reader-printers must have the capacity (i) If upon inspection of the Form I– to display and print a complete page of 9, the employer determines that the information. A person or entity who is Form I–9 relates to the individual and determined to have failed to comply that the individual is still eligible to with the criteria established by this work, that previously executed Form I– regulation for the presentation of 9 is sufficient for purposes of section microfilm or microfiche to the Service, 274A(b) of the Act if the individual is the Special Counsel for Immigration- hired within three years of the date of Related Unfair Employment Practices, the initial execution of the Form I–9 or the Department of Labor, and at the and the employer updates the Form I– time of the inspection does not present 9 to reflect the date of rehire; or

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(ii) If upon inspection of the Form I– shall retain the Form I–9 for a period of 9, the employer determines that the in- three years from the date of the rehire. dividual’s employment authorization [52 FR 16221, May 1, 1987, as amended at 53 has expired, the employer must rever- FR 8612, Mar. 16, 1988; 55 FR 25932, June 25, ify on the Form I–9 in accordance with 1990; 56 FR 41784–41786, Aug. 23, 1991; 58 FR paragraph (b)(1)(vii); otherwise the in- 48780, Sept. 20, 1993; 61 FR 46537, Sept. 4, 1996; dividual may no longer be employed. 61 FR 52236, Oct. 7, 1996] (2) For purposes of retention of the Form I–9 by an employer for a pre- § 274a.3 Continuing employment of unauthorized aliens. viously employed individual hired pursuant to paragraph (c)(1) of this sec- An employer who continues the em- tion, the employer shall retain the ployment of an employee hired after Form I–9 for a period of three years November 6, 1986, knowing that the em- commencing from the date of the ini- ployee is or has become an unauthor- tial execution of the Form I–9 or one ized alien with respect to that employ- year after the individual’s employment ment, is in violation of section is terminated, whichever is later. 274A(a)(2) of the Act. (d) Employment verification require- [52 FR 16221, May 1, 1987, as amended at 53 ments in the case of recruiting or referring FR 8613, Mar. 16, 1988] for a fee an individual who was previously recruited or referred. (1) When a § 274a.4 Good faith defense. recruiter or referrer for a fee refers an An employer or a recruiter or refer- individual for whom that recruiter or rer for a fee for employment who shows referrer for a fee has previously com- good faith compliance with the em- pleted a Form I–9 and complied with ployment verification requirements of the verification requirements set forth § 274a.2(b) of this part shall have estab- in paragraph (b) of this section with re- lished a rebuttable affirmative defense gard to the individual, the recruiter or that the person or entity has not vio- referrer may (in lieu of completing a lated section 274A(a)(1)(A) of the Act new Form I–9) inspect the previously with respect to such hiring, recruiting, completed Form I–9 and: or referral. (i) If upon inspection of the Form I– 9, the recruiter or referrer for a fee de- § 274a.5 Use of labor through contract. termines that the Form I–9 relates to Any person or entity who uses a con- the individual and that the individual tract, subcontract, or exchange entered is still eligible to work, that previously into, renegotiated, or extended after executed Form I–9 is sufficient for pur- November 6, 1986, to obtain the labor or poses of section 274A(b) of the Act if services of an alien in the United the individual is referred within three States knowing that the alien is an un- years of the date of the initial execu- authorized alien with respect to per- tion of the Form I–9 and the recruiter forming such labor or services, shall be or referrer for a fee updates the Form considered to have hired the alien for I–9 to reflect the date of rehire; or employment in the United States in (ii) If upon inspection of the Form I– violation of section 274A(a)(1)(A) of the Act. 9, the recruiter or referrer determines that the individual’s employment au- [55 FR 25934, June 25, 1990] thorization has expired, the recruiter or referrer for a fee must reverify on § 274a.6 State employment agencies. the Form I–9 in accordance with para- (a) General. Pursuant to sections graph (b)(1)(vii) of this section; other- 274A(a)(5) and 274A(b) of the Act, a wise the individual may no longer be state employment agency as defined in recruited or referred. § 274a.1 of this part may, but is not re- (2) For purposes of retention of the quired to, verify identity and employ- Form I–9 by a recruiter or referrer for ment eligibility of individuals referred a previously recruited or referred indi- for employment by the agency. How- vidual pursuant to paragraph (d)(1) of ever, should a state employment agen- this section, the recruiter or referrer cy choose to do so, it must:

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(1) Complete the verification process (2) Job orders or other referrals, in- in accordance with the requirements of cluding telephonic authorizations, § 274a.2(b) of this part provided that the which are used as evidence of compli- individual may not present receipts in ance pursuant to paragraph (c)(1)(i) of lieu of documents in order to complete this section shall contain: the verification process as otherwise (i) The name of the referred individ- permitted by § 274a.2(b)(1)(vi) of this ual; part; and (ii) The date of the referral; (2) Complete the verification process (iii) The job order number or other prior to referral for all individuals for applicable identifying number relating whom a certification is required to be to the referral; issued pursuant to paragraph (c) of this (iv) The name and title of the refer- section. ring state employment agency official; (b) Compliance with the provisions of and section 274A of the Act. A state employ- (v) The telephone number and ad- ment agency which chooses to verify dress of the state employment agency. employment eligibility of individuals (3) A state employment agency shall pursuant to § 274a.2(b) of this part shall not be required to verify employment comply with all provisions of section eligibility or to issue a certification to 274A of the Act and the regulations is- an employer to whom the agency re- sued thereunder. ferred an individual if the individual is hired for a period of employment not to (c) State employment agency certifi- exceed 3 days in duration. Should a cation. (1) A state employment agency state agency choose to verify employ- which chooses to verify employment ment eligibility and to issue a certifi- eligibility pursuant to paragraph (a) of cation to an employer relating to an this section shall issue to an employer individual who is hired for a period of who hires an individual referred for employment not to exceed 3 days in du- employment by the agency, a certifi- ration, it must verify employment eli- cation as set forth in paragraph (d) of gibility and issue certifications relat- this section. The certification shall be ing to all such individuals. Should a transmitted by the state employment state employment agency choose not agency directly to the employer, per- to verify employment eligibility or sonally by an agency official, or by issue certifications to employers who mail, so that it will be received by the hire, for a period not to exceed 3 days employer within 21 business days of the in duration, agency-referred individ- date that the referred individual is uals, the agency shall notify employers hired. In no case shall the certification that, as a matter of policy, it does not be transmitted to the employer from perform verifications for individuals the state employment agency by the hired for that length of time, and that individual referred. During this period: the employers must complete the iden- (i) The job order or other appropriate tity and employment eligibility re- referral form issued by the state em- quirements pursuant to § 274a.2(b) of ployment agency to the employer, on this part. Such notification may be in- behalf of the individual who is referred corporated into the job order or other and hired, shall serve as evidence, with referral form utilized by the state em- respect to that individual, of the employment agency as appropriate. ployer’s compliance with the provi- (4) An employer to whom a state em- sions of section 274A(a)(1)(B) of the Act ployment agency issues a certification and the regulations issued thereunder. relating to an individual referred by (ii) In the case of a telephonically au- the agency and hired by the employer, thorized job referral by the state em- shall be deemed to have complied with ployment agency to the employer, an the verification requirements of appropriate annotation by the em- § 274a.2(b) of this part provided that the ployer shall be made and shall serve as employer: evidence of the job order. The employer (i) Reviews the identifying informa- should retain the document containing tion contained in the certification to the annotation where the employer re- ensure that it pertains to the individ- tains Forms I–9. ual hired;

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(ii) Observes the signing of the cer- (8) Identify the document or docu- tification by the individual at the time ments presented by the individual to of its receipt by the employer as pro- the state employment agency for the vided for in paragraph (d)(13) of this purposes of identity and employment section; eligibility verification; (iii) Complies with the provisions of (9) State the identifying number or § 274a.2(b)(1)(vii) of this part by either: numbers of the document or documents (A) Updating the state employment described in paragraph (d)(8) of this agency certification in lieu of Form I– section; 9, upon expiration of the employment (10) Certify that the agency has com- authorization date, if any, which was plied with the requirements of section noted on the certification issued by the 274A(b) of the Act concerning verifica- state employment agency pursuant to tion of the identity and employment paragraph (d)(11) of this section; or eligibility of the individual referred, (B) By no longer employing an indi- and has determined that, to the best of vidual upon expiration of his or her the agency’s knowledge, the individual employment authorization date noted is authorized to work in the United on the certification; States; (iv) Retains the certification in the (11) Clearly state any restrictions, same manner prescribed for Form I–9 conditions, expiration dates or other in § 274a.2(b)(2) of this part, to wit, limitations which relate to the individ- three years after the date of the hire or ual’s employment eligibility in the one year after the date the individual’s United States, or contain an affirma- employment is terminated, whichever tive statement that the employment is later; and authorization of the referred individual (v) Makes it available for inspection is not restricted; to officers of the Service or the Depart- (12) State that the employer is not ment of Labor, pursuant to the provi- required to verify the individual’s iden- sions of section 274A(b)(3) of the Act, tity or employment eligibility, but and § 274a.2(b)(2) of this part. must retain the certification in lieu of (5) Failure by an employer to comply Form I–9; with the provisions of paragraph (13) Contain a space or a line for the (c)(4)(iii) of this section shall con- signature of the referred individual, re- stitute a violation of section 274A(a)(2) quiring the individual under penalty of of the Act and shall subject the em- perjury to sign his or her name before ployer to the penalties contained in the employer at the time of receipt of section 274A(e)(4) of the Act, and the certification by the employer; and § 274a.10 of this part. (14) State that counterfeiting, fal- (d) Standards for state employment sification, unauthorized issuance or al- agency certifications. All certifications teration of the certification con- issued by a state employment agency stitutes a violation of federal law pur- pursuant to paragraph (c) of this sec- suant to title 18, U.S.C. 1546. tion shall conform to the following (e) Retention of Form I–9 by state em- standards. They must: ployment agencies. A Form I–9 utilized (1) Be issued on official agency let- by a state employment agency in veri- terhead; fying the identity and employment eli- (2) Be signed by an appropriately des- gibility of an individual pursuant to ignated official of the agency; § 274a.2(b) of this part must be retained (3) Bear a date of issuance; by a state employment agency for a pe- (4) Contain the employer’s name and riod of three years from the date that address; the individual was last referred by the (5) State the name and date of birth agency and hired by an employer. A of the individual referred; state employment agency may retain a (6) Identify the position or type of Form I–9 either in its original form, or employment for which the individual is on microfilm or microfiche. referred; (f) Retention of state employment agen- (7) Bear a job order number relating cy certifications. A certification issued to the position or type of employment by a state employment agency pursu- for which the individual is referred; ant to this section shall be retained:

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(1) By a state employment agency, date that the individual is last referred for a period of three years from the and hired. date that the individual was last re- (h) Employer verification requirements ferred by the agency and hired by an in the case of an individual who was pre- employer, and in a manner to be deter- viously referred and certified. When an mined by the agency which will enable employer rehires an individual for the prompt retrieval of the information whom the verification and certification contained on the original certification requirements have been previously for comparison with the relating Form complied with by a state employment I–9; agency, the employer shall inspect the (2) By the employer, in the original previously issued certification. form, and in the same manner and lo- (1) If, upon inspection of the certification as the employer has designated cation, the employer determines that for retention of Forms I–9, and for the the certification pertains to the indi- period of time provided in paragraph vidual and that the individual remains (c)(4)(iv) of this section. authorized to be employed in the Unit- (g) State employment agency verifica- ed States, no additional verification tion requirements in the case of an indi- need be conducted and no new Form I– vidual who was previously referred and 9 or certification need be completed certified. When a state employment agency refers an individual for whom provided that the individual is rehired the verification requirements have by the employer within 3 years of the been previously complied with and a issuance of the initial certification, Form I–9 completed, the agency shall and that the employer follows the same inspect the previously completed Form procedures for the certification which I–9: pertain to Form I–9, as specified in (1) If, upon inspection of the Form, § 274a.2(c)(1)(i) of this part. the agency determines that the Form (2) If, upon inspection of the certifi- I–9 pertains to the individual and that cation, the employer determines that the individual remains authorized to be the certification pertains to the indi- employed in the United States, no ad- vidual but that the certification re- ditional verification need be conducted flects restrictions, expiration dates or and no new Form I–9 need be completed other conditions which indicate that prior to issuance of a new certification the individual no longer appears au- provided that the individual is referred thorized to be employed in the United by the agency within 3 years of the States, the employer shall verify that execution of the initial Form I–9. the individual remains authorized to be (2) If, upon inspection of the Form, employed and shall follow the updating the agency determines that the Form procedures for the certification which I–9 pertains to the individual but that pertain to Form I–9, as specified in the individual does not appear to be au- § 274a.2(c)(1)(ii) of this part; otherwise thorized to be employed in the United the individual may no longer be em- States based on restrictions, expiration ployed. dates or other conditions annotated on (3) For the purposes of retention of the Form I–9, the agency shall not the certification by an employer pursu- issue a certification unless the agency ant to this paragraph for an individual follows the updating procedures pursu- previously referred and certified by a ant to § 274a.2(b)(1)(vii) of this part; state employment agency and rehired otherwise the individual may no longer by the employer, the employer shall re- be referred for employment by the tain the certification for a period of 3 state employment agency. years after the date that the individual (3) For the purposes of retention of is last hired, or one year after the date the Form I–9 by a state employment the individual’s employment is termi- agency pursuant to paragraph (e) of nated, whichever is later. this section, for an individual previously referred and certified, the state [52 FR 43053, Nov. 9, 1987] employment agency shall retain the Form for a period of 3 years from the

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§ 274a.7 Pre-enactment provisions for tunity for an administrative hearing in employees hired prior to November accordance with section 274A(e)(3)(B) of 7, 1986. the Act, be subject to a civil fine of (a) The penalty provisions set forth $1,000 for each violation and to an ad- in section 274A (e) and (f) of the Act for ministrative order requiring the return violations of sections 274A(a)(1)(B) and to the individual of any amounts re- 274A(a)(2) of the Act shall not apply to ceived in violation of this section or, if employees who were hired prior to No- the individual cannot be located, to the vember 7, 1986, and who are continuing general fund of the Treasury. in their employment and have a reasonable expectation of employment at § 274a.9 Enforcement procedures. all times (as set forth in (a) Procedures for the filing of com- § 274a.2(b)(1)(viii)), except those individ- plaints. Any person or entity having uals described in section 274a.2 knowledge of a violation or potential (b)(1)(viii)(A)(7)(iii) and violation of section 274A of the Act (b)(1)(viii)(A)(8). may submit a signed, written com- (b) For purposes of this section, an plaint in person or by mail to the Serv- employee who was hired prior to No- ice office having jurisdiction over the vember 7, 1986 shall lose his or her pre- business or residence of the potential enactment status if the employee: violator. The signed, written complaint (1) Quits; or must contain sufficient information to (2) Is terminated by the employer; the term termination shall include, but identify both the complainant and the is not limited to, situations in which potential violator, including their an employee is subject to seasonal em- names and addresses. The complaint ployment; or should also contain detailed factual al- (3) Is excluded or deported from the legations relating to the potential vio- United States or departs the United lation including the date, time and States under a grant of voluntary de- place of the alleged violation and the parture; or specific act or conduct alleged to con- (4) Is no longer continuing his or her stitute a violation of the Act. Written employment (or does not have a rea- complaints may be delivered either by sonable expectation of employment at mail to the appropriate Service office all times) as set forth in or by personally appearing before any § 274a.2(b)(1)(viii). immigration officer at a Service office. (b) Investigation. The Service may [52 FR 16221, May 1, 1987, as amended at 53 conduct investigations for violations FR 8613, Mar. 16, 1988; 55 FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991] on its own initiative and without having received a written complaint. When § 274a.8 Prohibition of indemnity the Service receives a complaint from bonds. a third party, it shall investigate only (a) General. It is unlawful for a person those complaints that have a reason- or other entity, in hiring or recruiting able probability of validity. If it is de- or referring for a fee for employment of termined after investigation that the an individual, to require the individual person or entity has violated section to post a bond or security, to pay or 274A of the Act, the Service may issue agree to pay an amount, or otherwise and serve a Notice of Intent to Fine or to provide a financial guarantee or in- a Warning Notice upon the alleged vio- demnity, against any potential liabil- lator. Service officers shall have rea- ity arising under this part relating to sonable access to examine any relevant such hiring, recruiting, or referring of evidence of any person or entity being the individual. However, this prohibi- investigated. tion does not apply to performance (c) Warning notice. The Service and/or clauses which are stipulated by agree- the Department of Labor may in their ment between contracting parties. discretion issue a Warning Notice to a (b) Penalty. Any person or other en- person or entity alleged to have vio- tity who requires any individual to lated section 274A of the Act. This post a bond or security as stated in this Warning Notice will contain a state- section shall, after notice and oppor- ment of the basis for the violations and

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the statutory provisions alleged to section, the day of service of the Notice have been violated. of Intent to Fine shall not be included. (d) Notice of Intent to Fine. The pro- If the Notice of Intent to Fine was ceeding to assess administrative pen- served by ordinary mail, five days shall alties under section 274A of the Act is be added to the prescribed thirty day commenced when the Service issues a period. In the request for a hearing, the Notice of Intent to Fine on Form I–763. respondent may, but is not required to, Service of this Notice shall be accom- respond to each allegation listed in the plished pursuant to part 103 of this Notice of Intent to Fine. chapter. The person or entity identified (f) Failure to file a request for hearing. in the Notice of Intent to Fine shall be If the respondent does not file a re- known as the respondent. The Notice of quest for a hearing in writing within Intent to Fine may be issued by an offi- thirty days of the day of service of the cer defined in § 242.1 of this chapter Notice of Intent to Fine (thirty-five with concurrence of a Service attorney. days if served by ordinary mail), the (1) Contents of the Notice of Intent to INS shall issue a final order from Fine. (i) The Notice of Intent to Fine which there is no appeal. will contain the basis for the charge(s) against the respondent, the statutory [52 FR 16221, May 1, 1987, as amended at 53 provisions alleged to have been vio- FR 8613, Mar. 16, 1988; 55 FR 25935, June 25, lated, and the penalty that will be im- 1990; 56 FR 41786, Aug. 23, 1991; 61 FR 52236, Oct. 7, 1996] posed. (ii) The Notice of Intent to Fine will §274a.10 Penalties. provide the following advisals to the respondent: (a) Criminal penalties. Any person or (A) That the person or entity has the entity which engages in a pattern or right to representation by counsel of practice of violations of subsection his or her own choice at no expense to (a)(1)(A) or (a)(2) of the Act shall be the government; fined not more than $3,000 for each un- (B) That any statement given may be authorized alien, imprisoned for not used against the person or entity; more than six months for the entire (C) That the person or entity has the pattern or practice, or both, notwith- right to request a hearing before an standing the provisions of any other Administrative Law Judge pursuant to Federal law relating to fine levels. 5 U.S.C. 554–557, and that such request (b) Civil penalties. A person or entity must be made within 30 days from the may face civil penalties for a violation service of the Notice of Intent to Fine of section 274A of the Act. Civil pen- ; alties may be imposed by the Service (D) That the Service will issue a final or an administrative law judge for vio- order in 45 days if a written request for lations under section 274A of the Act. a hearing is not timely received and In determining the level of the pen- that there will be no appeal of the final alties that will be imposed, a finding of order. more than one violation in the course (e) Request for Hearing Before an Ad- of a single proceeding or determination ministrative Law Judge. If a respondent will be counted as a single offense. contests the issuance of a Notice of In- However, a single offense will include tent to Fine, the respondent must file penalties for each unauthorized alien with the INS, within thirty days of the who is determined to have been know- service of the Notice of Intent to Fine, ingly hired or recruited or referred for a written request for a hearing before a fee. an Administrative Law Judge. Any (1) A respondent found by the Service written request for a hearing submit- or an administrative law judge to have ted in a foreign language must be ac- knowingly hired, or to have knowingly companied by an English language recruited or referred for a fee, an unau- translation. A request for a hearing is thorized alien for employment in the not deemed to be filed until received by United States or to have knowingly the Service office designated in the No- continued to employ an unauthorized tice of Intent to Fine. In computing alien in the United States, shall be sub- the thirty day period prescribed by this ject to the following order:

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(i) To cease and desist from such be- restraining order, or other order havior; against the person or entity, as the At- (ii) To pay a civil fine according to torney General deems necessary. the following schedule: [52 FR 16221, May 1, 1987, as amended at 55 (A) First offense—not less than $250 FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, and not more than $2,000 for each unau- 1991] thorized alien, or (B) Second offense—not less than §274a.11 [Reserved] $2,000 and not more than $5,000 for each unauthorized alien; or Subpart B—Employment (C) More than two offenses—not less Authorization than $3,000 and not more than $10,000 for each unauthorized alien; and § 274a.12 Classes of aliens authorized (iii) To comply with the require- to accept employment. ments of section 274a.2(b) of this part, (a) Aliens authorized employment inci- and to take such other remedial action dent to status. Pursuant to the statu- as is appropriate. tory or regulatory reference cited, the (2) A respondent determined by the following classes of aliens are author- Service (if a respondent fails to request ized to be employed in the United a hearing) or by an administrative law States without restrictions as to loca- judge to have failed to comply with the tion or type of employment as a condi- employment verification requirements tion of their admission or subsequent as set forth in § 274a.2(b) of this part, change to one of the indicated classes. shall be subject to a civil penalty in an Any alien who is within a class of amount of not less than $100 and not aliens described in paragraphs (a)(3) more than $1,000 for each individual through (a)(8) or (a)(10) through (a)(13) with respect to whom such violation of this section, and who seeks to be em- occurred. In determining the amount of ployed in the United States, must the penalty, consideration shall be apply to the Service for a document ev- given to: idencing such employment authoriza- (i) The size of the business of the em- tion. ployer being charged; (1) An alien who is a lawful perma- (ii) The good faith of the employer; nent resident (with or without condi- (iii) The seriousness of the violation; tions pursuant to section 216 of the (iv) Whether or not the individual Act), as evidenced by Form I–551 issued was an unauthorized alien; and by the Service. An expiration date on (v) The history of previous violations the Form I–551 reflects only that the of the employer. card must be renewed, not that the (3) Where an order is issued with re- bearer’s work authorization has ex- spect to a respondent composed of dis- pired; tinct, physically separate subdivisions (2) An alien admitted to the United which do their own hiring, or their own States as a lawful temporary resident recruiting or referring for a fee for em- pursuant to sections 245A or 210 of the ployment (without reference to the Act, as evidenced by an employment practices of, and under the control of, authorization document issued by the or common control with another sub- Service; division) the subdivision shall be con- (3) An alien admitted to the United sidered a separate person or entity. States as a refugee pursuant to section (c) Enjoining pattern or practice viola- 207 of the Act for the period of time in tions. If the Attorney General has rea- that status, as evidenced by an employ- sonable cause to believe that a person ment authorization document issued or entity is engaged in a pattern or by the Service; practice of employment, recruitment (4) An alien paroled into the United or referral in violation of section States as a refugee for the period of 274A(a)(1)(A) or (2) of the Act, the At- time in that status, as evidenced by an torney General may bring civil action employment authorization document in the appropriate United States Dis- issued by the Service; trict Court requesting relief, including (5) An alien granted asylum under a permanent or temporary injunction, section 208 of the Act for the period of

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time in that status, as evidenced by an immigrant aliens are authorized to be employment authorization document employed in the United States by the issued by the Service; specific employer and subject to the re- (6) An alien admitted to the United strictions described in the section(s) of States as a nonimmigrant fiance or this chapter indicated as a condition of fiancee pursuant to section their admission in, or subsequent 101(a)(15)(K) of the Act, or an alien ad- change to, such classification. An alien mitted as the child of such alien, for in one of these classes is not issued an the period of admission of the United employment authorization document States, as evidenced by an employment by the Service: authorization document issued by the (1) A foreign government official (A– Service; 1 or A–2), pursuant to § 214.2(a) of this (7) An alien admitted as a parent (N– chapter. An alien in this status may be 8) or dependent child (N–9) of an alien employed only by the foreign govern- granted permanent residence under ment entity; section 101(a)(27)(I) of the Act, as evi- (2) An employee of a foreign govern- denced by an employment authoriza- ment official (A–3), pursuant to tion document issued by the Service; § 214.2(a) of this chapter. An alien in (8) An alien admitted to the United this status may be employed only by States as a citizen of the Federated the foreign government official; States of Micronesia (CFA/FSM) or of (3) A foreign government official in the Marshall Islands (CFA/MIS) pursu- transit (C–2 or C–3), pursuant to ant to agreements between the United § 214.2(c) of this chapter. An alien in States and the former trust territories, this status may be employed only by as evidenced by an employment au- the foreign government entity; thorization document issued by the Service; (4) [Reserved] (9) [Reserved] (5) A nonimmigrant treaty trader (E– (10) An alien granted withholding of 1) or treaty investor (E–2), pursuant to deportation under section 243(h) of the § 214.2(e) of this chapter. An alien in Act for the period of time in that sta- this status may be employed only by tus, as evidenced by an employment the treaty-qualifying company through authorization document issued by the which the alien attained the status. Service; or Employment authorization does not (11) An alien who has been granted extend to the dependents of the prin- extended voluntary departure by the cipal treaty trader or treaty investor Attorney General as a member of a na- (also designated ‘‘E’1’’ or ‘‘E–2’’), other tionality group pursuant to a request than those specified in paragraph (c)(2) by the Secretary of State. Employment of this section; is authorized for the period of time in (6) A nonimmigrant (F–1) student that status as evidenced by an employ- who is in valid nonimmigrant student ment authorization document issued status and pursuant to 8 CFR 214.2(f) is by the Service; seeking: (12) An alien granted Temporary Pro- (i) On-campus employment for not tected Status under section 244A of the more than twenty hours per week when Act for the period of time in that sta- school is in session or full-time em- tus, as evidenced by an employment ployment when school is not in session authorization document issued by the if the student intends and is eligible to Service; or register for the next term or session. (13) An alien granted voluntary de- Part-time on-campus employment is parture by the Attorney General under authorized by the school and no spe- the Family Unity Program established cific endorsement by a school official by section 301 of the Immigration Act or Service officer is necessary; of 1990, as evidenced by an employment (ii) Part-time off-campus employ- authorization document issued by the ment authorization based on an ap- Service. proved attestation from the employer (b) Aliens authorized for employment pursuant to 8 CFR 214.2(f) and who pre- with a specific employer incident to sta- sents an I–20 ID endorsed by the des- tus. The following classes of non- ignated school official; or

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(iii) Curricular practical training (in- § 214.2(o) of this chapter. An alien in ternships, cooperative training pro- this status may be employed only by grams, or work-study programs which the petitioner through whom the sta- are part of an established curriculum) tus was obtained; after having been enrolled full-time in (14) An athlete, artist or entertainer a Service-approved institution for at (P–1, P–2 or P–3), pursuant to § 214.2(p) least nine months. Curricular practical of this chapter. An alien in this status training (part-time or full-time) is au- may be employed only by the peti- thorized by the Designated School Offi- tioner through whom the status was cial on the student’s I–20 ID; no Service obtained; endorsement is necessary. (15) An international cultural ex- (7) A representative of an inter- change visitor (Q), pursuant to § 214.2(q) national organization (G–1, G–2, G–3, or of this chapter. An alien in this status G–4), pursuant to § 214.2(g) of this chap- may only be employed by the peti- ter. An alien in this status may be em- tioner through whom the status was ployed only by the foreign government obtained; entity or the international organiza- (16) An alien having a religious occu- tion; pation, pursuant to § 214.2(r) of this (8) A personal employee of an official chapter. An alien in this status may be or representative of an international employed only by the religious organi- organization (G–5), pursuant to zation through whom the status was § 214.2(g) of this chapter. An alien in obtained; this status may be employed only by the official or representative of the (17) Officers and personnel of the international organization; armed services of nations of the North (9) A temporary worker or trainee Atlantic Treaty Organization, and rep- (H–1, H–2A, H–2B, or H–3), pursuant to resentatives, officials, and staff em- § 214.2(h) of this chapter. An alien in ployees of NATO (NATO–1, NATO–2, this status may be employed only by NATO–3, NATO–4, NATO–5 and NATO– the petitioner through whom the sta- 6), pursuant to § 214.2(o) of this chapter. tus was obtained; An alien in this status may be em- (10) An information media represent- ployed only by NATO; ative (I), pursuant to § 214.2(i) of this (18) An attendant, servant or per- chapter. An alien in this status may be sonal employee (NATO–7) of an alien employed only for the sponsoring for- admitted as a NATO–1, NATO–2, eign news agency or bureau. Employ- NATO–3, NATO–4, NATO–5, or NATO–6, ment authorization does not extend to pursuant to § 214.2(o) of this chapter. the dependents of an information An alien admitted under this classi- media representative (also designated fication may be employed only by the ‘‘I’’); NATO alien through whom the status (11) An exchange visitor (J–1), pursu- was obtained; ant to § 214.2(j) of this chapter and 22 (19) A nonimmigrant pursuant to sec- CFR 514.24. An alien in this status may tion 214(e) of the Act. An alien in this be employed only by the exchange visi- status must be engaged in business ac- tor program sponsor or appropriate tivities at a professional level in ac- designee and within the guidelines of cordance with the provisions of Chap- the program approved by the United ter 16 of the North American Free States Information Agency as set forth Trade Agreement (NAFTA); or in the Certificate of Eligibility (Form (20) A nonimmigrant alien within the IAP–66) issued by the program sponsor; class of aliens described in paragraphs (12) An intra-company transferee (L– (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), 1), pursuant to § 214.2(1) of this chapter. (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) An alien in this status may be em- of this section whose status has expired ployed only by the petitioner through but who has filed a timely application whom the status was obtained; for an extension of such stay pursuant (13) An alien having extraordinary to §§ 214.2 or 214.6 of this chapter. These ability in the sciences, arts, education, aliens are authorized to continue em- business, or athletics (0–1), and an ac- ployment with the same employer for a companying alien (0–2), pursuant to period not to exceed 240 days beginning

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on the date of the expiration of the au- to 8 CFR 214.2(f)(9)(ii)(C) and has filed thorized period of stay. Such author- the Form I–20, Form I–538 and any ization shall be subject to any condi- other supporting materials such as affi- tions and limitations noted on the ini- davits which further detail the unfore- tial authorization. However, if the dis- seen economic circumstances that re- trict director or service center director quire the student to seek employment adjudicates the application prior to the authorization and evidence the fact expiration of this 240 day period and that the student has attempted to find denies the application for extension of employment under 8 CFR stay, the employment authorization 214.2(f)(9)(ii)(B); under this paragraph shall automati- (4) An alien spouse or unmarried de- cally terminate upon notification of pendent child; son or daughter of an of- the denial decision. ficer of, representative to, or employee (c) Aliens who must apply for employ- of an international organization (G–1, ment authorization. An alien within a G–3 or G–4) pursuant to § 214.2(g) of this class of aliens described in this section chapter who presents a fully executed must apply for work authorization. If Form I–566 bearing the endorsement of authorized, such an alien may accept an authorized representative of the De- employment subject to any restrictions partment of State; stated in the regulations or cited on (5) An alien spouse or minor child of the employment authorization docu- an exchange visitor (J–2) pursuant to ment: § 214.2(j) of this chapter;I11(6) A non- (1) An alien spouse or unmarried de- immigrant (M–1) student seeking em- pendent child; son or daughter of a for- ployment for practical training pursu- eign government official (A–1 or A–2) ant to 8 CFR 214.2(m) following comple- pursuant to § 214.2(a)(2) of this chapter tion of studies. The alien may be em- and who presents a fully executed ployed only in an occupation or voca- Form I–566 bearing the endorsement of tion directly related to his or her an authorized representative of the De- course of study as recommended by the partment of State; endorsement of the designated school (2) An alien spouse or unmarried de- official on the I–20 ID; pendent son or daughter of an alien (6) A nonimmigrant (M–1) student employee of the Coordination Council seeking employment for practical for North American Affairs (E–1) pursu- training pursuant to 8 CFR 214.2(m) fol- ant to § 214.2(e) of this chapter; lowing completion of studies. The alien (3) A nonimmigrant (F–1) student may be employed only in an occupation who: or vocation directly related to his or (i) Is seeking employment for pur- her course of study as recommended by poses of optional practical training the endorsement of the designated pursuant to 8 CFR 214.2(f), provided the school official on the I–20 ID; alien will be employed only in an occu- (7) A dependent of an alien classified pation which is directly related to his as NATO–1 through NATO–7 pursuant or her area of studies and that he or to § 214.2(n) of this chapter; she presents an I–20 ID endorsed by the (8) An alien who has filed a complete designated school official; application for asylum or withholding (ii) Has been offered employment of deportation pursuant to part 208 of under the sponsorship of an inter- this chapter, whose application has not national organization within the mean- been decided, and who is eligible to ing of the International Organization apply for employment authorization Immunities Act (59 Stat. 669) and who under § 208.7 of this chapter because the presents a written certification from 150-day period set forth in that section the international organization that the has expired. Employment authoriza- proposed employment is within the tion may be granted according to the scope of the organization’s sponsorship. provisions of § 208.7 of this chapter in The F–1 student must also present an increments to be determined by the I–20 ID endorsed by the DSO in the last Commissioner and shall expire on a 30 days; or specified date; (iii) Is seeking employment because (9) An alien who has filed an applica- of severe economic hardship pursuant tion for adjustment of status to lawful

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permanent resident pursuant to part (16) Any alien who has filed an appli- 245 of this chapter. Employment au- cation for creation of record of lawful thorization shall be granted in incre- admission for permanent residence pur- ments not exceeding one year during suant to part 249 of this chapter. Em- the period the application is pending ployment authorization shall be grant- (including any period when an adminis- ed in increments not exceeding one trative appeal or judicial review is year during the period the application pending) and shall expire on a specified is pending (including any period when date; an administrative appeal or judicial re- (10) An alien who has filed an applica- view is pending) and shall expire on a tion for suspension of deportation pur- specific date; suant to part 244 of this chapter. Em- (17) A nonimmigrant visitor for busi- ployment authorization shall be grant- ness (B–1) who: ed in increments not exceeding one (i) Is a personal or domestic servant year during the period the application who is accompanying or following to is pending (including any period when join an employer who seeks admission an administrative appeal or judicial re- into, or is already in, the United States view is pending) and shall expire on a as a nonimmigrant defined under sec- specified date; tions 101(a)(15) (B), (E), (F), (H), (I), (J), (11) An alien paroled into the United (L) or section 214(e) of the Act. The States temporarily for emergency rea- personal or domestic servant shall have sons or reasons deemed strictly in the a residence abroad which he or she has public interest pursuant to § 212.5 of no intention of abandoning and shall this chapter; demonstrate at least one year’s experi- (12) A deportable alien granted vol- ence as a personal or domestic servant. untary departure, either prior to or The nonimmigrant’s employer shall after a hearing, for reasons set forth in demonstrate that the employer/em- § 242.5(a)(2) (v), (vi), (viii), or (ix) of this ployee relationship has existed for at chapter, may be granted permission to least one year prior to the employer’s be employed for that period of time admission to the United States; or, if prior to the date set for voluntary de- the employer/employee relationship ex- parture including any extension grant- isted for less than one year, that the ed beyond such date, if the alien estab- employer has regularly employed (ei- lishes an economic need to work. Fac- ther year-round or seasonally) personal tors which may be considered in adju- or domestic servants over a period of dicating the application for employ- several years preceding the employer’s ment authorization of such an alien admission to the United States; granted voluntary departure include, (ii) Is a domestic servant of a United but are not limited to, the following: States citizen accompanying or follow- (i) The length of voluntary departure ing to join his or her United States cit- granted; izen employer who has a permanent (ii) The existence of a dependent home or is stationed in a foreign coun- spouse and/or children in the United try, and who is visiting temporarily in States who rely on the alien for sup- the United States. The employer/em- port; ployee relationship shall have existed (iii) Whether there is a reasonable prior to the commencement of the em- chance that legal status may ensure in ployer’s visit to the United States; or the near future; and (iii) Is an employee of a foreign air- (iv) Whether there is a reasonable line engaged in international transpor- basis for consideration of discretionary tation of passengers freight, whose po- relief. sition with the foreign airline would (13) [Reserved] otherwise entitle the employee to clas- (14) An alien who has been granted sification under section 101(a)(15)(E)(i) deferred action, an act of administra- of the Immigration and Nationality tive convenience to the government Act, and who is precluded from such which gives some cases lower priority, classification solely because the em- if the alien establishes an economic ne- ployee is not a national of the country cessity for employment; of the airline’s nationality or because (15) [Reserved] there is no treaty of commerce and

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navigation in effect between the United eligibility for employment authoriza- States and the country of the airline’s tion when the alien’s economic neces- nationality. sity is identified as a factor. The alien (18) An alien against whom a final shall submit an application for employ- order of deportation exists and who is ment authorization listing his or her released on an order of supervision assets, income, and expenses as evi- under the authority contained in sec- dence of his or her economic need to tion 242(d) of the Act may be granted work. Permission to work granted on employment authorization if the dis- the basis of the alien’s application for trict director determines that employ- employment authorization may be re- ment authorization is appropriate. voked under § 274a.14 of this chapter Factors which may be considered by upon a showing that the information the district director in adjudicating contained in the statement was not the application for employment au- true and correct. thorization include, but are not limited to, the following: [52 FR 16221, May 1, 1987] (i) The existence of economic neces- EDITORIAL NOTE: For FEDERAL REGISTER ci- sity to be employed; tations affecting § 274a.12, see the List of (ii) The existence of a dependent CFR Sections Affected in the Finding Aids spouse and/or children in the United section of this volume. States who rely on the alien for support; and § 274a.13 Application for employment authorization. (iii) The anticipated length of time before the alien can be removed from (a) General. Aliens authorized to be the United States. employed under § 274a.12(a)(3)–(8) and (19) An alien applying for Temporary (10)–(13) must file an Application for Protected Status pursuant to section Employment Authorization (Form I– 244A of the Act shall apply for employ- 765) in order to obtain documentation ment authorization only in accordance evidencing this fact. with the procedures set forth in part (1) Aliens who may apply for employ- 240 of this chapter. ment authorization under § 274a.12(c) of (20) Any alien who has filed a com- this part, except for those who may pleted legalization application pursu- apply under § 274a.12(c)(8), shall file a ant to section 210 of the Act (and part Form I–765 with the director having ju- 210 of this chapter). Employment au- risdiction over applicant’s residence, or thorization shall be granted in incre- the director having jurisdiction over ments not exceeding 1 year during the the port of entry at which the alien ap- period the application is pending (in- plies, or with such other Service office cluding any period when an adminis- as the Commissioner may designate. trative appeal is pending) and shall ex- The approval of applications filed pire on a specified date. under § 274a.12(c) of this part, except for (21) A principal nonimmigrant wit- § 274a.12(c)(8), shall be within the dis- ness or informant in S classification, cretion of the director or such other of- and qualified dependent family mem- ficer as the Commissioner may des- bers. ignate. Where economic necessity has (22) Any alien who has filed a com- been identified as a factor, the alien pleted legalization application pursu- must provide information regarding his ant to section 245A of the Act (and part or her assets, income, and expenses in 245a of this chapter). Employment au- accordance with instructions on Form thorization shall be granted in incre- I–765. ments not exceeding 1 year during the (2) An initial Application for Em- period the application is pending (in- ployment Authorization (Form I–765) cluding any period when an adminis- for asylum applicants under trative appeal is pending) and shall ex- 274a.12(c)(8) of this part shall be filed in pire on a specified date. accordance with instructions on or at- (d) Basic criteria to establish economic tached to Form I–765 with the appro- necessity. Title 45—Public Welfare, Pov- priate Service Center or with such erty Guidelines, 45 CFR 1060.2 should be other Service office as the Commis- used as the basic criteria to establish sioner may designate. The applicant

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also must submit a copy of the under- matically terminate as of the date of lying application for asylum or with- the director’s adjudication and denial. holding of deportation, together with [52 FR 16221, May 1, 1987, as amended at 55 evidence that the application has been FR 25937, June 25, 1990; 56 FR 41787, Aug. 23, filed in accordance with §§ 208.3 and 1991; 59 FR 33905, July 1, 1994; 59 FR 62303, 208.4 of this chapter. An application for Dec. 5, 1994; 60 FR 21976, May 4, 1995] an initial employment authorization or for a renewal of employment authoriza- § 274a.14 Termination of employment tion filed in relation to a pending authorization. claim for asylum shall be adjudicated (a) Automatic termination of employ- in accordance with § 208.7 of this chap- ment authorization. (1) Employment au- ter. An application for renewal or re- thorization granted under § 274a.12(c) of placement of employment authoriza- this chapter shall automatically termi- tion submitted in relation to a pending nate upon the occurrence of one of the claim for asylum, as provided in § 208.7 following events: of this chapter, shall be filed, with fee (i) The expiration date specified by or application for waiver of such fee, in the Service on the employment author- accordance with the instructions on or ization document is reached; attached to Form I–765 with the appro- (ii) Exclusion or deportation proceed- priate Service Center or with such ings are instituted (however, this shall other Service office as the Commis- not preclude the authorization of em- sioner may designate. ployment pursuant to § 274a.12(c) of (b) Approval of application. If the ap- this part where appropriate); or plication is granted, the alien shall be (iii) The alien is granted voluntary notified of the decision and issued an departure. INS employment authorization docu- (2) Termination of employment au- ment valid for a specific period and thorization pursuant to this paragraph subject to any terms and conditions as does not require the service of a notice noted. of intent to revoke; employment au- (c) Denial of application. If the appli- thorization terminates upon the occurrence of any event enumerated in para- cation is denied, the applicant shall be graph (a)(1) of this section. notified in writing of the decision and the reasons for the denial. There shall However, automatic revocation under this section does not preclude re- be no appeal from the denial of the ap- application for employment authoriza- plication. tion under § 274.12(c) of this part. (d) Interim employment authorization. (b) Revocation of employment author- The district director shall adjudicate ization—(1) Basis for revocation of em- the application within 90 days from the ployment authorization. Employment date of receipt of the application by authorization granted under § 274a.12(c) the INS, except in the case of an initial of this chapter may be revoked by the application for employment authoriza- district director: tion under § 274a.12(c)(8), which is gov- (i) Prior to the expiration date, when erned by paragraph (a)(2) of this sec- it appears that any condition upon tion. Failure to complete the adjudica- which it was granted has not been met tion within 90 days will result in the or no longer exists, or for good cause grant of an employment authorization shown; or document for a period not to exceed 240 (ii) Upon a showing that the informa- days. Such authorization shall be sub- tion contained in the application is not ject to any conditions noted on the em- true and correct. ployment authorization document. (2) Notice of intent to revoke employ- However, if the director adjudicates ment authorization. When a district di- the application prior to the expiration rector determines that employment au- date of the interim employment authorization should be revoked prior to thorization and denies the individual’s the expiration date specified by the employment authorization application, Service, he or she shall serve written the interim employment authorization notice of intent to revoke the employ- granted under this section shall auto- ment authorization. The notice will

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cite the reasons indicating that revoca- 280.13 Disposition of case. tion is warranted. The alien will be 280.14 Record. granted a period of fifteen days from 280.15 Notice of final decision to district di- the date of service of the notice within rector of customs. which to submit countervailing evi- 280.21 Seizure of aircraft. 280.51 Application for mitigation or remis- dence. The decision by the district di- sion. rector shall be final and no appeal shall 280.52 Payment of fines. lie from the decision to revoke the authorization. AUTHORITY: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 1284, 1285, 1286, 1322, 1323, (c) Automatic termination of temporary and 1330; 66 Stat. 173, 195, 197, 201, 203, 212, 219, employment authorization granted prior 221–223, 226, 227, 230. to June 1, 1987. (1) Temporary employ- SOURCE: 22 FR 9807, Dec. 6, 1957, unless oth- ment authorization granted prior to erwise noted. June 1, 1987, pursuant to 8 CFR 274a.12(c) (§ 109.1(b) contained in the 8 § 280.1 Notice of intention to fine; ad- CFR edition revised as of January 1, ministrative proceedings not exclu- 1987), shall automatically terminate on sive. the date specified by the Service on the Whenever a district director or the document issued to the alien, or on De- Associate Commissioner for Examina- cember 31, 1996, whichever is earlier. tions, or the Director for the National Automatic termination of temporary Fines Office has reason to believe that employment authorization does not any person has violated any of the pro- preclude a subsequent application for visions of the Immigration and Nation- temporary employment authorization. ality Act and has thereby become lia- (2) A document issued by the Service ble to the imposition of an administra- prior to June 1, 1987, that authorized tive fine under the Immigration and temporary employment authorization Nationality Act, he shall cause a No- for any period beyond December 31, tice of Intention to Fine, Form I–79, to 1996, is null and void pursuant to para- be served as provided in this part. graph (c)(1) of this section. The alien Nothing in this subchapter shall affect, shall be issued a new employment au- restrict, or prevent the institution of a thorization document upon application civil suit, in the discretion of the At- to the Service if the alien is eligible for torney General, under the authority temporary employment authorization contained in section 280 of the Immi- pursuant to 274A.12(c). gration and Nationality Act. (3) No notice of intent to revoke is necessary for the automatic termi- [22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989] nation of temporary employment authorization pursuant to this part. § 280.2 Special provisions relating to [52 FR 16221, May 1, 1987, as amended at 53 aircraft. FR 8614, Mar. 16, 1988; 53 FR 20087, June 1, In any case in which the imposition 1988; 61 FR 46537, Sept. 4, 1996] of a fine is predicated upon an alleged violation of a regulation promulgated PART 280—IMPOSITION AND under authority of section 239 of the COLLECTION OF FINES Immigration and Nationality Act, the procedure prescribed in this part shall Sec. be followed and the aircraft involved 280.1 Notice of intention to fine; adminis- shall not be granted clearance pending trative proceedings not exclusive. 280.2 Special provisions relating to aircraft. determination of the question of liabil- 280.3 Departure of vessel or aircraft prior to ity to the payment of any fine, or while denial of clearance. the fine remains unpaid; but clearance 280.4 Data concerning cost of transpor- may be granted prior to the determina- tation. tion of such question upon the deposit 280.5 Mitigation or remission of fines. of a sum sufficient to cover such fine or 280.6 Bond to obtain clearance; form. of a bond with sufficient surety to se- 280.7 Approval of bonds or acceptance of cash deposit to obtain clearance. cure the payment thereof, approved by 280.11 Notice of intention to fine; procedure. the Commisioner. If the alleged viola- 280.12 Answer and request or order for inter- tion was by the owner or person in view. command of the aircraft, the penalty

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provided for shall be a lien against the the provisions of the Immigration and aircraft, which, except as provided in Nationality Act relating to refund of § 280.21, shall be seized by the district passage monies, and shall specify the director or by an immigration officer exact amounts paid for transportation designated by the district director, and from the initial point of departure placed in the custody of the customs (which point shall be indicated) to the officer who is in charge of the port of foreign port of embarkation, from the entry or customs station nearest the latter to the port of arrival in the place of seizure. If the owner or owners United States and from the port of ar- of the airport at which such aircraft is rival to the inland point of destination, located are the owners of the seized respectively, and also the amount paid aircraft, the aircraft shall be removed for headtax, if any. to another suitable place for storage if practicable. [22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989] [22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967; 56 FR 26020, June 6, 1991] § 280.5 Mitigation or remission of fines. § 280.3 Departure of vessel or aircraft prior to denial of clearance. In any case in which mitigation or remission of a fine is authorized by the If any vessel or aircraft which is sub- Immigration and Nationality Act, the ject to the imposition of a fine shall party served with Notice of Intention have departed from the United States to Fine may apply in writing to the prior to the denial of clearance by the district director or the Associate Com- district director of customs and such missioner for Examinations, or the Di- vessel or aircraft is subsequently found rector for the National Fines Office for in the United States, a Notice of Inten- such mitigation or remission. tion to Fine, Form I–79, shall be served as provided in this part, if such form [22 FR 9807, Dec. 6, 1957, as amended at 54 FR has not been previously served for the 18649, May 2, 1989] same violation. Clearance of such vessel or aircraft shall be withheld by the § 280.6 Bond to obtain clearance; form. district director of customs, and the A bond to obtain clearance of a vessel procedure prescribed in this part shall or aircraft under section 231, 237, 239, be followed to the same extent and in 243, 251, 253, 254, 255, 256, 272, or 273 of the same manner as though the vessel the Immigration and Nationality Act or aircraft had not departed from the shall be filed on Form I–310. United States. Aircraft subject to the provisions of § 280.2, which shall have [22 FR 9807, Dec. 6, 1957, as amended at 54 FR departed from the United States prior 102, Jan. 4, 1989] to the time of seizure could be effected, shall be subject to all of the provisions § 280.7 Approval of bonds or acceptance of cash deposit to obtain clear- of this part, if subsequently found in ance. the United States, to the same extent as though it had not departed from the The district director of customs is United States. authorized to approve the bond, or accept the sum of money which is being [22 FR 9807, Dec. 6, 1957, as amended at 32 FR offered for deposit under any provision 17651, Dec. 12, 1967] of the Immigration and Nationality § 280.4 Data concerning cost of trans- Act or by this chapter for the purpose portation. of obtaining clearance of a vessel or aircraft with the exception of sections Within five days after request there- 239, 251(d), 255, 256, 272, and 273(d) in for, transportation companies shall furnish to the district director or the which the Commissioner of the Immi- Associate Commissioner for Examina- gration and Naturalization Service is tions, or the Director for the National authorized to approve the bond or ac- Fines Office pertinent information con- cept the sum of money which is being tained in the original transportation offered for deposit. contract of all rejected aliens whose [22 FR 9807, Dec. 6, 1957, as amended at 32 FR cases are within the purview of any of 17651, Dec. 12, 1967; 56 FR 26020, June 6, 1991]

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§ 280.11 Notice of intention to fine; additional period of 30 days upon good procedure. cause being shown), any person upon Notice of Intention to Fine, Form I– whom a notice under this part has been 79, shall be prepared in triplicate, with served may file with the district direc- one additional copy for each additional tor or the Associate Commissioner for person on whom the service of such no- Examinations, or the Director for the tice is contemplated. The notice shall National Fines Office a written de- be addressed to any or all of the avail- fense, in duplicate, under oath setting able persons subject to fine. A copy of forth the reasons why a fine should not the notice shall be served by personal be imposed, or if imposed, why it service on each such person. If the no- should be mitigated or remitted if per- tice is delivered personally, the person mitted by the Immigration and Nation- upon whom it is served shall be re- ality Act, and stating whether a per- quested to acknowledge such service by sonal appearance is desired. Documen- signing his name to the duplicate and tary evidence shall be submitted in triplicate copies. The officer effecting support of such defense and a brief may such service shall attest to the service be submitted in support of any argu- by signing his name thereon and shall ment made. If a personal interview is indicate thereon the date and place of requested, the evidence in opposition service. If the person so served refuses to the imposition of the fine and in to acknowledge service, or if service is support of the request for mitigation or made by leaving it at an office or mail- remission may be presented at such ing it, the person making such service interview. An interview shall be con- shall indicate the method and date on ducted if requested by the party as pro- the duplicate and triplicate copies of vided hereinabove or, if directed at any Form I–79, and shall sign his name time by the Board, the Commissioner, upon such copies. The duplicate copy or the district director or the Associate shall be retained by the district direc- Commissioner for Examinations, or the tor of immigration and naturalization Director for the National Fines Office. or the Associate Commissioner for Ex- [22 FR 9807, Dec. 6, 1957, as amended at 54 FR aminations, or the Director for the Na- 18649, May 2, 1989] tional Fines Office and the triplicate copy shall be delivered directly to the § 280.13 Disposition of case. district director of customs for the dis- (a) Allegations admitted or no answer trict in which the vessel or aircraft is filed. If a request for personal appear- located, and the district director of ance is not filed and (1) the answer ad- customs shall withhold clearance until mits the allegations in the notice, or deposit is made or bond furnished as (2) no answer is filed, the district direc- provided in the Immigration and Na- tor or the Associate Commissioner for tionality Act. If the vessel or aircraft Examinations, or the Director for the is located in a customs district which National Fines Office shall enter such is outside the jurisdiction of the office order in the case as he deems appro- of the Service having jurisdiction over priate and no appeal from his decision the matter, the triplicate copy shall be may be taken. forwarded to the office of the Service (b) Answer filed; personal appearance. nearest such customs district for deliv- Upon receipt of an answer asserting a ery to the district director of customs. defense to the allegations in the notice [22 FR 9807, Dec. 6, 1957, as amended at 32 FR without requesting a personal appear- 17651, Dec. 12, 1967; 37 FR 11471, June 8, 1972; ance, or if a personal appearance is re- 54 FR 18649, May 2, 1989] quested or directed, the case shall be assigned to an immigration officer. § 280.12 Answer and request or order The immigration officer shall prepare a for interview. report summarizing the evidence and Within 30 days following the service containing his findings and rec- of the Notice of Intention to Fine ommendation. The record, including (which period the district director or the report and recommendation of the the Associate Commissioner for Exami- immigration officer, shall be forwarded nations, or the Director for the Na- to the district director or the Associate tional Fines Office may extend for an Commissioner for Examinations, or the

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Director for the National Fines Office. of immigration and naturalization or The district director or the Associate the Associate Commissioner for Exami- Commissioner for Examinations, or the nations, or the Director for the Na- Director for the National Fines Office tional Fines Office. The regional ad- shall note on the report of the immi- ministrative officer shall notify the gration officer whether he approves or district director of customs who was disapproves the recommendation of the furnished a copy of the Notice of Inten- immigration officer. The person shall tion to Fine of the final decision made be informed in writing of the decision in the case. Such notification need not of the district director or the Associate be made if the regional administrative Commissioner for Examinations, or the Director for the National Fines Office officer has been previously furnished and, if his decision is that a fine shall with a notice of collection of the be imposed or that the requested miti- amount of the penalty by the district gation or remission shall not be grant- director of customs. ed, of the reasons for such decision. [32 FR 17651, Dec. 12, 1967, as amended at 54 From the decision of the district direc- FR 18649, May 2, 1989] tor or the Associate Commissioner for Examinations, or the Director for the § 280.21 Seizure of aircraft. National Fines Office an appeal may be Seizure of an aircraft under the au- taken to the Board within 15 days after the mailing of the notification of deci- thority of section 239 of the Act and sion as provided in part 3 of this chap- § 280.2 will not be made if such aircraft ter. is damaged to an extent that its value is less than the amount of the fine [22 FR 9808, Dec. 6, 1957, as amended at 23 FR which may be imposed. If seizure of an 9124, Nov. 26, 1958; 54 FR 18649, May 2, 1989] aircraft for violation of section 239 of § 280.14 Record. the Act is to be made, Form G–297 The record made under § 280.13 shall (Order to Seize Aircraft) and Form G– include the request for the interview or 298 (Public Notice of Seizure) shall be a reference to the order directing the prepared in septuple and the originals interview; the medical certificate, if furnished to the immigration officer any; a copy of any record of hearing be- who will effect the seizure. The origi- fore a Board of Special Inquiry, Hear- nal of Form G–297, properly endorsed as ing Examiner, Hearing Officer, or Spe- to date and place of seizure, shall be re- cial Inquiry Officer which is relevant turned for retention in the relating file to the fine proceedings; the duplicate after seizure is effected. The original of copy of the Notice of Intention to Fine; Form G–298 shall be placed on the the evidence upon which such Notice seized aircraft and a copy retained in was based; the duplicate of any notices the file. Copies of both forms shall be to detain, deport, deliver, or remove served upon the owner of the aircraft aliens; notice to pay expenses; evidence and the pilot if other than the owner. as to whether any deposit was made or Copies shall also be furnished the dis- bond furnished in accordance with the trict director of customs and the Unit- Immigration and Nationality Act; re- ed States Attorney for the district in ports of investigations conducted; doc- which the seizure was made. In addi- umentary evidence and testimony ad- tion, immediately upon the seizure of duced at the interview; the original of an aircraft, or prior thereto, if cir- any affidavit or brief filed in opposi- cumstances permit, a full report of the tion to the imposition of fine; the application for mitigation or remission; facts in the case shall be submitted by and any other relevant matter. the district director to the United States Attorney for the district in § 280.15 Notice of final decision to dis- which the seizure was made, together trict director of customs. with copies of Form G–296 (Report of At such time as the decision under Violation) and Form I–79 (Notice of In- this part is final, the regional adminis- tention to Fine). The report shall in- trative officer shall be furnished a copy clude the cost incurred in seizing and of the decision by the district director guarding the aircraft and an estimate

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of the further additional cost likely to (c) From the amounts collected under be incurred. paragraphs (a) and (b) of this section, the increase in penalties collected re- [29 FR 14433, Oct. 21, 1964, as amended at 32 FR 17651, Dec. 12, 1967] sulting from the amendments made by sections 203(b), 543(a), and 544 of the § 280.51 Application for mitigation or Immigration Act of 1990, shall be cred- remission. ited to the appropriation for activities authorized under section 280(b) of the (a) When application may be filed. An Act. application for mitigation or remission of a fine may be filed as provided under [56 FR 26020, June 6, 1991] § 280.12 of this part; or, within 30 days after the date of receipt of the district PART 286—IMMIGRATION USER FEE director’s or the Associate Commis- sioner for Examinations, or the Direc- Sec. tor for the National Fines Office’s deci- 286.1 Definitions. sion to impose a fine whether or not 286.2 Fee for arrival of passengers aboard the applicant responded to the Notice commercial aircraft or commercial ves- of Intention to Fine. sels. (b) Form and contents of application. 286.3 Exceptions. An application for mitigation or remis- 286.4 Fee collection responsibility. sion shall be filed in duplicate under 286.5 Remittance and statement procedures. oath and shall include information, 286.6 Maintenance of records. supported by documentary evidence, as 286.7 Penalties. 286.8 Establishment of pilot programs for to the basis of the claim to mitigation the charging of a land border fee for in- or remission, and as to the action, if spection services. any, which may have been taken by the 286.9 Fee for processing applications and is- applicant, or as to the circumstances suing documentation at land border present in the case which, in the opin- Ports-of-Entry.

ion of the applicant, justified the AUTHORITY: 8 U.S.C. 1103, 1356; 8 CFR part granting of his application. 2. (c) Disposition of application. The ap- SOURCE: 53 FR 5757, Feb. 26, 1988, unless plication, if filed with the answer, shall otherwise noted. be disposed of as provided in § 280.13. In any other case the application shall be § 286.1 Definitions. considered and decided by the district The following definitions apply to director or the Associate Commissioner the following terms in this part: for Examinations, or the Director for (a) The term adjacent islands means the National Fines Office from whose Anguilla, Antigua, Aruba, Bahamas, decision an appeal may be taken to the Barbados, Barbuda, Bermuda, Bonaire, Board within 15 days after the mailing British Virgin Islands, Cayman Islands, of the notification of decision as pro- Cuba, Curacao, Dominica, the Domini- vided in part 3 of this chapter. can Republic, Grenada, Guadeloupe, [22 FR 9808, Dec. 6, 1957, as amended at 23 FR Haiti, Jamaica, Marie-Galante, Mar- 9124, Nov. 26, 1958; 46 FR 28624, May 28, 1981; tinique, Miquelon, Montserrat, Saba, 54 FR 18649, May 2, 1989] Saint Barthe´lemy, Saint Christopher, Saint Eustatius, Saint Kitts-Nevis, § 280.52 Payment of fines. Saint Lucia, Saint Maarten, Saint (a) All fines assessed pursuant to sec- Martin, Saint Pierre, Saint Vincent tions 231(d); 237(b); 239; 251(d); 254(a); and Grenadines, Trinidad and Tobago, 255; 256; 271(a); 272, 273 and 274(c) of the Turks and Caicos Islands, and other Act shall be made payable to and col- British, French and Netherlands terri- lected by the Service. tory or possessions bordering on the (b) All fines collected pursuant to Caribbean Sea. sections 271(a) and 273 of the Act shall (b) The term collector means an air or be deposited in the Immigration User sea carrier, travel agent, tour whole- Fee Account established in accordance saler, or other entity which collects, with the provisions of section 286 of the but may or may not be required to Act. remit, fees pursuant to this part.

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(c) The term commercial aircraft (b) Each commercial aircraft and ves- means any civilian aircraft being used sel carrier or ticket-selling agent to transport persons or property for whose monthly collections in any compensation or hire. month exceed $50,000 shall submit a (d) The term commercial vessel means summary statement showing the any civilian vessel being used to trans- amount of user fees collected that port persons or property for compensa- month. The summary statement is due tion or hire. on the last business day of the follow- (e) The term Associate Commissioner, ing month. This information shall be Finance means the Office of the Associ- forwarded to the Immigration and Nat- ate Commissioner, Finance, Immigra- uralization Service, Chief, Fee Analy- tion and Naturalization Service, Room sis and Operations Branch, 425 I Street, 6307, 425 I Street NW., Washington, DC NW., Room 6307, Washington, DC 20536. 20536. For the months of December, March, (f) The term fee means the immigra- June, and August, the quarterly remit- tion user fee. tance and statement required by § 286.5 (g) The term port of entry means a will serve as the monthly report for port or place designated by the Com- those months. Therefore, a monthly re- missioner at which a person may apply port is required for all other months in for admission into the United States. which monthly collections exceed (h) The term remitter means an air or $50,000. sea carrier, travel agent, tour whole- [59 FR 49348, Sept. 28, 1994] saler, or other entity which collects, including receipt of fees collected by § 286.3 Exceptions. collectors which are not required to The fee set forth in § 286.2 of this part remit fees, and remits fees pursuant to shall not be charged or collected from this part. passengers who fall within any one of (i) The term territories or possessions the following categories: of the United States means American (a) Persons, other than aircraft pas- Samoa, Baker Island, Howland Island, sengers, whose travel originated in Jarvis Island, Johnston Atoll, Kingman Canada, Mexico, the adjacent islands, Reef, Midway, the Northern Mariana and territories or possessions of the Islands, Swains Island, Palmyra Island, United States; and Wake Island. (b) Persons directly connected with (j) The term document for transpor- the operation, navigation, or business tation means any document accepted by of the commercial aircraft or commer- a carrier in return for transportation. cial vessel including working crew, (k) The term United States, when used deadheading crew, U.S. Federal Avia- in a geographical sense, means the con- tion Administration inspectors, sky tinental United States, Alaska, Hawaii, marshals, and commercial airline or Puerto Rico, Guam, and the Virgin Is- commercial vessel employees on offi- lands of the United States. cial business; [53 FR 5757, Feb. 26, 1988, as amended at 59 (c) Persons who are listed as foreign FR 49349, Sept. 28, 1994] diplomats on the accreditation list maintained by the U.S. Department of § 286.2 Fee for arrival of passengers State or who are in possession of a dip- aboard commercial aircraft or com- lomatic visa (A–1 and 2, G–1 thru 4) mercial vessels. valid for entry into the United States; (a) Under the provisions of section (d) Persons who are passengers on 286(b) of the Act, a $6.00 fee per individ- any commercial aircraft or commercial ual is charged and collected by the vessel owned or operated exclusively by Commissioner for the immigration in- the Government of the United States spection of each passenger aboard a or a foreign government, including any commercial aircraft or commercial agency or political subdivision thereof, vessel, arriving at a Port-of-Entry in so long as that aircraft or vessel is not the United States, or for the transporting any persons or property preinspection of a passenger in a place for commercial purposes. outside the United States prior to such (e) Persons who are passengers on arrival, except as provided in § 286.3. commercial aircraft or commercial

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vessels under contract to the U.S. De- § 286.5 Remittance and statement pro- partment of Defense, if they have been cedures. preinspected outside of the United (a) The air or sea carrier whose tick- States under a joint Service and U.S. et stock or document for transpor- Department of Defense military inspec- tation reflects collection of the fee is tion program; responsible for remittance of the fee to (f) Persons arriving on an aircraft or the Service. The travel agent, tour vessel due to an emergency or forced wholesaler, or other entity, which is- landing when the original destination sues their own non-carrier related tick- of the aircraft or vessel was not the et or document for transportation to United States; and an air or sea passenger who is not ex- (g) Persons transiting the United cepted from the fee pursuant to § 286.3 States who are not inspected by the of this part, is responsible for remit- Service. Transit without visa pas- tance of the fee to the Service, unless sengers who are inspected by the Serv- by contract the carrier will remit the ice are not excepted from payment of fee. the fee under this section. (b)(1) Fee remittances shall be sent [53 FR 5757, Feb. 26, 1988, as amended at 59 to the Immigration and Naturalization FR 49348, Sept. 28, 1994] Service, at a designated Treasury de- pository, for receipt no later than 31 § 286.4 Fee collection responsibility. days after the close of the calendar (a) It is the responsibility of the air quarter in which the fees are collected, or sea carriers, travel agents, tour except the fourth quarter payment for wholesalers, or other parties, which fees collected shall be made on the date issue tickets or documents for trans- that is 10 days before the end of the portation on or after December 1, 1986, U.S. Government’s fiscal year, and the to collect the fee set forth in § 286.2 of first quarter payment shall include any this part from all passengers trans- collections made in the preceding quar- ported to the United States who are ter that were not remitted with the not excepted under § 286.3 of this part. previous payment. The fourth quarter (b) Tickets and documents for trans- payment shall include collections for portation shall be marked by the col- the months of July and August. The lector of the fee to indicate that the re- fiscal year referenced is the U.S. Gov- quired fee has been collected. Such ernment’s fiscal year which begins on markings shall be in accordance with October 1 and ends on September 30. (2) Late payments will be subject to the procedures set forth in the ARC In- interest, penalty, and handling charges dustry Agents Handbook, the SATO as provided in the Debt Collection Act Ticketing Handbook, or compatible of 1982 (31 U.S.C. 3717). Refunds by a re- procedures set forth in the operations mitter of fees collected in conjunction manual of individual collectors. with unused tickets or documents for (c) It is the responsibility of the car- transportation shall be netted against rier transporting a passenger from the the next subsequent remittance. United States to collect the fee upon (c) Along with the remittance, as set departure, if the passenger was not ex- forth in paragraph (b) of this section, cepted under § 286.3 of this part and each remitter making such remittance tickets or documents for transpor- shall attach a statement which sets tation of the passenger do not reflect forth the following: collection of the fee at the time of issu- (1) Name and address; ance. If at the time of departure such a (2) Taxpayer identification number; passenger refuses to pay the fee, the (3) Calendar quarter covered by the carrier shall record the full name, com- payment; plete address, nationality, passport (4) Interest and penalty charges; and number, and alien file number, if any, (5) Total amount collected and remit- of the passenger and immediately noted. tify the Associate Commissioner, Fi- (d) Remittances shall be made in U.S. nance. dollars by check or money order [53 FR 5757, Feb. 26, 1988, as amended at 59 through a U.S. bank, to Associate Com- FR 49349, Sept. 28, 1994] missioner, Finance, INS.

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(e) Annually, each U.S. based remit- spection, all Regional Commissioners; ter, which retains an independent ac- and all District Directors. countant and which remits $10,000 or more in fees in any one calendar quar- [53 FR 5757, Feb. 26, 1988, as amended at 55 FR 729, Jan. 9, 1990; 59 FR 49348, 49349, Sept. ter, shall submit to the Associate Com- 28, 1994] missioner, Finance a report from the independent accountant in accordance § 286.6 Maintenance of records. with the Statement on Standards for At- testation Engagements on the applica- Each collector and remitter shall tion of Passenger User Fee Collection maintain records necessary for the and Remittance Procedures established Service to verify the accuracy of fees by the American Institute of Certified collected and remitted and to other- Public Accountants and the Service, to wise determine compliance with the the Associate Commissioner, Finance. applicable statutes and regulations. Each foreign-based remitter, which re- Such records shall be maintained for a tains an independent accountant and period of two years from the date of fee which remits $10,000 or more in fees in collection. Each remitter shall advise any one calendar quarter, shall submit the Associate Commissioner, Finance a similar report to the Associate Com- of the name, address, and telephone missioner, Finance from the independ- number of a responsible officer who ent accountant in accordance with gen- shall have the authority to verify and erally accepted accounting principles produce any records required to be of their respective countries. These re- maintained under this part. The Asso- ports from the independent account- ciate Commissioner, Finance shall be ants are to be submitted for receipt by promptly notified of any changes of the the Associate Commissioner, Finance responsible officer. no later than ninety (90) days after the [53 FR 5757, Feb. 26, 1988, as amended at 59 close of the fiscal year of each remit- FR 49349, Sept. 28, 1994] ter. Each remitter, which does not retain an independent accountant or § 286.7 Penalties. which does not remit $10,000 or more in Failure of any air or sea carrier to any one calendar quarter, shall certify comply with the provisions of section under oath on each statement submitted pursuant to paragraph (c) of this 286 of the Act and this part shall subsection that they have complied with ject it to one or more of the following: the applicable statutes and regula- (a) Termination of existing agree- tions. ments under the provisions of section (f) The Commissioner reserves the 238 of the Act; and right to conduct an independent audit (b) Suspension of enroute inspections of any collector or remitter not provid- or preinspections. ing the report or certification required pursuant to paragraph (e) of this sec- § 286.8 Establishment of pilot pro- tion or based upon other information grams for the charging of a land border fee for inspection services. indicating non-compliance in order to assure the accuracy of the remittances Under the provisions of section 286(q) of fees collected and remitted and com- of the Act, the Service may establish pliance with the applicable statutes pilot programs at one or more land bor- and regulations. der ports-of-entry to charge fees for (g) In order to enforce compliance immigration inspection services to be with the provisions of this part, the collected by the Commissioner. Indi- Commissioner may issue a subpoena re- vidual ports-of-entry selected by the quiring the production of records, evi- Commissioner to participate in such dence, and witnesses pursuant to the pilot programs may charge a fee to en- procedures set forth in § 287.4 of this hance inspection services and to re- chapter. The authority to issue a sub- cover the cost of: poena pursuant to this section is lim- (a) Hiring additional immigration in- ited to the Commissioner, Deputy Com- spectors, including all associated per- missioner, Associate Commissioner for sonnel costs such as salary, benefits, Management, Director for Program In- and overtime;

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(b) Expansion, operation, and mainte- nadian national, or lawful permanent nance of information systems for nonresident of Canada having a common immigrant control; nationality with Canadians, who re- (c) Construction costs, including quests Form I–68, Canadian Border those associated with adding new pri- Boat Landing Permit, pursuant to mary traffic lanes (with the concur- § 235.1(e) of this chapter, for entry to rence of the General Services Adminis- the United States from Canada as an tration); eligible pleasure boater on a designated (d) Procuring detection devices and body of water, must remit the required conducting training to identify fraudu- fee at time of application for Form I– lent documents used by applicants for 68. entry to the United States; (5) A Canadian national or a lawful (e) Other administrative costs associ- permanent resident of Canada having a ated with the PORTPASS Program; common nationality with nationals of and Canada, who submits Form I–175, Ap- (f) Costs associated with the adminis- plication for Nonresident Alien Cana- tration of the Land Border Inspection dian Border Crossing Card, must remit Fee account. the required fee at time of application [60 FR 50390, Sept. 29, 1995, as amended at 61 for Form I–185. FR 53833, Oct. 16, 1996] (6) A Mexican national who submits Form I–190, Application for Non- § 286.9 Fee for processing applications resident Alien Mexican Border Crossing and issuing documentation at land Card, for replacement of a lost, stolen, border Ports-of-Entry. or mutilated Form I–586, Nonresident (a) General. A fee may be charged and Alien Border Crossing Card, must collected by the Commissioner for the remit the required fee at time of appli- processing and issuance of specified cation for a replacement Form Service documents at land border I–586. Ports-of-Entry. These fees, as specified [60 FR 40069, Aug. 7, 1995] in § 103.7(b)(1) of this chapter, shall be dedicated to funding the cost of provid- PART 287—FIELD OFFICERS; ing application-processing services at POWERS AND DUTIES land border ports. (b) Forms for which a fee may be Sec. charged. (1) A nonimmigrant alien who 287.1 Definitions. is required to be issued, or requests to 287.2 Disposition of criminal cases. 287.3 Disposition of cases of aliens arrested be issued, Form I–94, Arrival/Departure without warrant. Record, for admission at a land border 287.4 Subpoena. Port-of-Entry must remit the required 287.5 Exercise of power by immigration offi- fee for issuance of Form I–94 upon de- cers. termination of admissibility. 287.6 Proof of official records. (2) A nonimmigrant alien applying 287.7 Detainer provisions under section for admission at a land border Port-of- 287(d)(3) of the Act. 287.8 Standards for enforcement activities. Entry as a Visa Waiver Pilot Program 287.9 Criminal search warrant and firearms applicant pursuant to § 217.2(c) or policies. § 217.3(c) of this chapter must remit the 287.10 Expedited internal review process. required fee for issuance of Form I–94W 287.11 Scope. upon determination of admissibility. AUTHORITY: 8 U.S.C. 1103, 1182, 1225, 1226, (3) A Mexican national in possession 1251, 1252, 1357; 8 CFR part 2. of a valid nonresident alien border crossing card or nonimmigrant B–1/B–2 § 287.1 Definitions. visa who is required to be issued Form (a)(1) External boundary. The term ex- I–444, Mexican Border Visitors Permit, ternal boundary, as used in section pursuant to § 235.1(g) of this chapter, 287(a)(3) of the Act, means the land must remit the required fee for issu- boundaries and the territorial sea of ance of Form I–444 upon determination the United States extending 12 nautical of admissibility. miles from the baselines of the United (4) A citizen or lawful permanent States determined in accordance with resident alien of the United States, Ca- international law.

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(2) Reasonable distance. The term rea- (e) Law enforcement or other official. sonable distance, as used in section The phrase law enforcement official (or 287(a) (3) of the Act, means within 100 other official), as used in section 287(d) air miles from any external boundary of the Act, and § 242.2(a) of this part of the United States or any shorter dis- means an officer or employee of an tance which may be fixed by the dis- agency engaged in the administration trict director, or, so far as the power to of criminal justice pursuant to statute board and search aircraft is concerned or executive order, including (1) courts; any distance fixed pursuant to para- (2) a government agency or component graph (b) of this section. which performs the administration of (b) Reasonable distance; fixing by dis- criminal justice as defined in 28 CFR trict directors. In fixing distances not part 20 including performance of any of exceeding 100 air miles pursuant to the following activities: detection, ap- paragraph (a) of this section, district directors shall take into consideration prehension, detention, pretrial release, topography, confluence of arteries of post-trial release, prosecution, adju- transportation leading from external dication, correctional supervision, or boundaries, density of population, pos- rehabilitation of accused persons or sible inconvenience to the traveling criminal offenders. public, types of conveyances used, and (f) Controlled substance. The term con- reliable information as to movements trolled substance, as used in section of persons effecting illegal entry into 287(d)(3) of the Act, shall mean the the United States: Provided, That same as that referenced in the Con- whenever in the opinion of a district trolled Substances Act, 21 U.S.C. 801 et director a distance in his district of seq., and shall include any substance more than 100 air miles from any exter- contained in Schedules I through V of nal boundary of the United States 21 CFR 1308.1 et seq. For the purposes of would because of unusual cir- this chapter, the term controlled sub- cumstances be reasonable, such district stance includes controlled substance director shall forward a complete re- analogues as defined in 21 U.S.C. 802(23) port with respect to the matter to the and 813. Commissioner, who may, if he deter- (g) Basic immigration law enforcement mines that such action is justified, de- training. The phrase basic immigration clare such distance to be reasonable. law enforcement training, as used in (c) Patrolling the border. The phrase §§ 287.5 and 287.8 of this part, means the patrolling the border to prevent the illegal entry of aliens into the United States as successful completion of one of the fol- used in section 287 of the Immigration lowing courses of training provided at and Nationality Act means conducting the Immigration Officer Academy or such activities as are customary, or Border Patrol Academy: Immigration reasonable and necessary, to prevent Officer Basic Training Course after the illegal entry of aliens into the 1971; Border Patrol Basic Training United States. Course after 1950; and Immigration De- (d) Arrested by federal, state, or local tention Enforcement Officer Basic law enforcement official. The term ar- Training Course after 1977; or training rested, as used in section 287(d) of the substantially equivalent thereto as de- Act (as amended by section 1701 (Sub- termined by the Commissioner with title M) of the Anti-Drug Abuse Act of the approval of the Deputy Attorney 1986, Pub. L. 99–509), means that an General. The phrase basic immigration alien has been— law enforcement training also means the (1) Physically taken into custody for successful completion of the Other a criminal violation of the controlled than Permanent Full-Time (OTP) Im- substance laws; and migration Inspector Basic Training (2) Subsequently booked, charged or Course after 1991 in the case of individ- otherwise officially processed; or uals who are OTP immigration inspec- (3) Provided an initial appearance be- tors. Conversion by OTP immigration fore a judicial officer where the alien has been informed of the charges and the right to counsel.

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to any other status requires training immigration laws, further action in the applicable to that position. case shall be taken as provided in part [22 FR 9808, Dec. 6, 1957, as amended at 29 FR 242 of this chapter. After the examining 13244, Sept. 24, 1964; 53 FR 9283, Mar. 22, 1988; officer has determined that formal pro- 57 FR 47258, Oct. 15, 1992; 59 FR 42415, Aug. 17, ceedings under sections 236, 237, or 242 1994] of the Act, will be instituted, an alien arrested without warrant of arrest § 287.2 Disposition of criminal cases. shall be advised of the reason for his/ Whenever a district director or chief her arrest and the right to be rep- patrol agent has reason to believe that resented by counsel of his/her choice, there has been a violation punishable at no expense to the government. The under any criminal provision of the alien shall also be provided with a list laws administered or enforced by the of the available free legal services pro- Service, he or she shall immediately grams qualified under part 292a of this initiate an investigation to determine all the pertinent facts and cir- chapter and organizations recognized cumstances and shall take such further pursuant to § 292.2 of this chapter which action as he or she deems necessary. In are located in the district where the no case shall this investigation preju- deportation hearing will be held. It dice the right of an arrested person to shall be noted on Form I–213 that such be taken without unnecessary delay be- a list was provided to the alien. The fore a United States magistrate judge, alien shall also be advised that any a United States district judge, or, if statement made may be used against necessary, a judicial officer empowered him/her in a subsequent proceeding and in accordance with 18 U.S.C. 3041 to that a decision will be made within 24 commit persons charged with offenses hours as to whether he/she will be con- against the laws of the United States. tinued in custody or released on bond [59 FR 42415, Aug. 17, 1994] or recognizance. Unless voluntary departure has been granted pursuant to § 287.3 Disposition of cases of aliens § 242.5 of this chapter, the alien’s case arrested without warrant. shall be presented promptly, and in any An alien arrested without a warrant event within 24 hours, for a determina- of arrest under the authority contained tion as to whether there is prima facie in section 287(a)(2) of the Immigration evidence that the arrested alien is in and Nationality Act shall be examined the United States in violation of law as therein provided by an officer other and for issuance of an order to show than the arresting officer. If no other cause and warrant of arrest as pre- qualified officer is readily available scribed in part 242 of this chapter. and the taking of the alien before another officer would entail unnecessary [51 FR 34082, Sept. 25, 1986] delay, the arresting officer, if the conduct of such examination is a part of § 287.4 Subpoena. the duties assigned to him/her, may ex- (a) Who may issue—(1) Criminal or civil amine the alien. If such examining offi- investigations. All District Directors, cer is satisfied that there is prima facie Deputy District Directors, Chief Patrol evidence establishing that the arrested Agents, Deputy Chief Patrol Agents, alien was entering or attempting to Assistant Chief Patrol Agents, Officers- enter the United States in violation of in-Charge, Patrol Agents in Charge, the immigration laws, he/she shall refer the case to an immigration judge Assistant District Directors, Investiga- for further inquiry in accordance with tions, Supervisory Criminal Investiga- parts 235 and 236 of this chapter or take tors (Anti-Smuggling), Regional Direc- whatever other action may be appro- tors, Office of Professional Responsibil- priate or required under the laws or ity, Service Center Directors, and As- regulations applicable to the particular sistant District Directors for Examina- case. If the examining officer is satis- tions, may issue a subpoena requiring fied that there is prima facie evidence the production of records and evidence establishing that the arrested alien is for use in criminal or civil investiga- in the United States in violation of the tions.

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(2) Proceedings other than naturaliza- place specified. A subpoena shall also tion proceedings—(1) Prior to commence- command the person or entity to which ment of proceedings. All District Direc- it is addressed to produce the books, tors, Deputy District Directors, Chief papers, or documents specified in the Patrol Agents, Deputy Chief Patrol subpoena. A subpoena may direct the Agents, and Officers-in-Charge, may taking of a deposition before an officer issue a subpoena requiring the attend- of the Service. ance of witnesses or the production of (2) Proceedings other than naturaliza- documentary evidence, or both, for use tion proceedings. Every subpoena issued in any proceeding under this chapter, under the provisions of this section other than under part 335 of this Chap- shall state the title of the proceeding ter, or any application made ancillary and shall command the person to whom to the proceeding. it is directed to attend and to give tes- (ii) Subsequent to commencement of any timony at a time and place specified. A proceeding. (A) In any proceeding under subpoena shall also command the per- this chapter, other than under part 335 son to whom it is directed to produce of this chapter, and in any proceeding the books, papers, or documents speci- ancillary thereto, an immigration fied in the subpoena. A subpoena may judge having jurisdiction over the mat- direct the making of a deposition be- ter may, upon his/her own volition or fore an officer of the Service. upon application of a trial attorney, (c) Service. A subpoena issued under the alien, or other party affected, issue this section may be served by any per- subpoenas requiring the attendance of son, over 18 years of age not a party to witnesses or for the production of the case, designated to make such serv- books, papers and other documentary evidence, or both. ice by the District Director, Deputy (B) Application for subpoena. A party District Director, Chief Patrol Agent, applying for a subpoena shall be re- Deputy Chief Patrol Agent, Assistant quired, as a condition precedent to its Chief Patrol Agent, Patrol Agent in issuance, to state in writing or at the Charge, Officer in Charge, Assistant proceeding, what he/she expects to District Director, Investigations, Su- prove by such witnesses or documen- pervisory Criminal Investigator (Anti- tary evidence, and to show affirma- Smuggling), Regional Director, and Of- tively that he/she has made diligent ef- fice of Professional Responsibility, fort, without success, to produce the having administrative jurisdiction over same. the office in which the subpoena is is- (C) Issuance of subpoena. Upon being sued. Service of the subpoena shall be satisfied that a witness will not appear made by delivering a copy thereof to and testify or produce documentary the person named therein and by ten- evidence and that the witness’ evidence dering to him/her the fee for one day’s is essential, the immigration judge attendance and the mileage allowed by shall issue a subpoena. law by the United States District (D) Appearance of witness. If the wit- Court for the district in which the tes- ness is at a distance of more than 100 timony is to be taken. When the sub- miles from the place of the proceeding, poena is issued on behalf of the Serv- the subpoena shall provide for the wit- ice, fee and mileage need not be ten- nesses’ appearance at the Service office dered at the time of service. A record nearest to the witness to respond to of such service shall be made and at- oral or written interrogatories, unless tached to the original copy of the sub- the Service indicates that there is no poena. objection to bringing the witness the (d) Invoking aid of court. If a witness distance required to enable him/her to neglects or refuses to appear and tes- testify in person. tify as directed by the subpoena served (b) Form of subpoena. All subpoenas upon him/her in accordance with the shall be issued on Form I–138. provisions of this section, the officer (1) Criminal or civil investigations. The issuing the subpoena shall request the subpoena shall command the person or United States Attorney for the district entity to which it is addressed to at- in which the subpoena was issued to re- tend and to give testimony at a time or port such neglect or refusal to the

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United States District Court and to re- vent the illegal entry of aliens into the quest such court to issue an order re- United States. quiring the witness to appear and tes- (2) The following immigration offi- tify and to produce the books, papers cers who have successfully completed or documents designated in the sub- basic immigration law enforcement poena. If the subpoena was issued by an training are hereby authorized and des- immigration judge, he/she shall request ignated to exercise the power to patrol the District Director in the district in the border conferred by section which the subpoena was issued to take 287(a)(3) of the Act: the action referred to in the previous (i) Border patrol agents, including sentence in the event the witness ne- aircraft pilots; glects or refuses to appear and testify (ii) Special agents; as directed by the subpoena served (iii) Immigration inspectors (seaport upon him. operations only); (iv) Immigration examiners and de- [50 FR 30134, July 24, 1985; 50 FR 47205, Nov. portation officers when in the uniform 15, 1985, as amended at 60 FR 56937, Nov. 13, of an immigration inspector and per- 1995] forming inspections or supervising § 287.5 Exercise of power by immigra- other immigration inspectors perform- tion officers. ing inspections (seaport operations only); (a) Power and authority to interrogate (v) Supervisory and managerial per- and administer oaths. Any immigration sonnel who are responsible for super- officer as defined in § 103.1(q) of this vising the activities of those officers chapter is hereby authorized and des- listed above; and ignated to exercise anywhere in or out- (vi) Immigration officers who need side the United States the power con- the authority to patrol the border ferred by: under section 287(a)(3) of the Act in (1) Section 287(a)(1) of the Act to in- order to effectively accomplish their terrogate, without warrant, any alien individual missions and who are des- or person believed to be an alien con- ignated, individually or as a class, by cerning his or her right to be, or to re- the Commissioner. main, in the United States, and (c) Power and authority to arrest. (1) (2) Section 287(b) of the Act to admin- Arrests of aliens under section 287(a)(2) of ister oaths and to take and consider the Act for immigration violations. evidence concerning the privilege of (i) Section 287(a)(2) of the Act author- any person to enter, reenter, pass izes designated immigration officers, through, or reside in the United States; as listed in paragraph (c)(1)(ii) of this or concerning any matter which is ma- section, to arrest any alien, without terial or relevant to the enforcement of warrant, who in the presence or view of the Act and the administration of the the immigration officer is entering or Immigration and Naturalization Serv- attempting to enter the United States ice. in violation of any law or regulation (b) Power and authority to patrol the made in pursuance of law regulating border. (1) Section 287(a)(3) of the Act the admission, exclusion, or expulsion authorizes designated immigration of- of aliens, or to arrest any alien in the ficers, as listed in paragraph (b)(2) of United States if the immigration offi- this section, to board and search for cer has reason to believe that the alien aliens, without warrant, any vessel is in the United States in violation of within the territorial waters of the any such law or regulation and is like- United States and any railway car, air- ly to escape before a warrant can be ob- craft, conveyance, or vehicle within a tained for his or her arrest. When mak- reasonable distance from any external ing an arrest, the designated immigra- boundary of the United States; and tion officer shall adhere to the provi- within a distance of twenty-five miles sions of the enforcement standard gov- from any such external boundary to erning the conduct of arrests in have access, without warrant, to pri- § 287.8(c). vate lands, but not dwellings, for the (ii) The following immigration offi- purpose of patrolling the border to pre- cers who have successfully completed

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basic immigration law enforcement vising the activities of those officers training are hereby authorized and des- listed above; and ignated to exercise the arrest power (G) Immigration officers who need conferred by section 287(a)(2) of the the authority to arrest persons under Act: section 287(a)(4) of the Act in order to (A) Border patrol agents, including effectively accomplish their individual aircraft pilots; missions and who are designated, indi- (B) Special agents; vidually or as a class, by the Commis- (C) Deportation officers; sioner with the approval of the Deputy (D) Immigration inspectors; Attorney General. (E) Immigration examiners; (3) Arrests of persons under section (F) Supervisory and managerial per- 287(a)(5)(A) of the Act for any offense sonnel who are responsible for super- against the United States. (i) Section vising the activities of those officers 287(a)(5)(A) of the Act authorizes des- listed above; and ignated immigration officers, as listed (G) Immigration officers who need in paragraph (c)(3)(ii) of this section, to the authority to arrest aliens under arrest persons, without warrant, for section 287(a)(2) of the Act in order to any offense against the United States effectively accomplish their individual if the offense is committed in the im- missions and who are designated, indi- migration officer’s presence while the vidually or as a class, by the Commis- immigration officer is performing du- sioner. ties relating to the enforcement of the (2) Arrests of persons under section immigration laws at the time of the ar- 287(a)(4) of the Act for felonies regulating rest and there is a likelihood of the the admission, exclusion, or expulsion of person escaping before a warrant can aliens. (i) Section 287(a)(4) of the Act be obtained for his or her arrest. When authorizes designated immigration of- making an arrest, the designated im- ficers, as listed in paragraph (c)(2)(ii) of migration officer shall adhere to the this section, to arrest persons, without provisions of the enforcement standard warrant, for felonies that have been governing the conduct of arrests in committed and that are cognizable § 287.8(c). under any law of the United States reg- (ii) The following immigration offi- ulating the admission, exclusion, or ex- cers who have successfully completed pulsion of aliens, if the immigration of- basic immigration law enforcement ficer has reason to believe that the per- training are hereby authorized and des- son is guilty of such felony and if there ignated to exercise the arrest power is a likelihood of the person escaping conferred by section 287(a)(5)(A) of the before a warrant can be obtained for Act: his or her arrest. When making an ar- (A) Border patrol agents, including rest, the designated immigration offi- aircraft pilots; cer shall adhere to the provisions of (B) Special agents; the enforcement standard governing (C) Deportation officers; the conduct of arrests in § 287.8(c) of (D) Immigration inspectors (perma- this part. nent full-time immigration inspectors (ii) The following immigration offi- only); cers who have successfully completed (E) Immigration examiners when in basic immigration law enforcement the uniform of an immigration inspec- training are hereby authorized and des- tor and performing inspections or su- ignated to exercise the arrest power pervising other immigration inspectors conferred by section 287(a)(4) of the performing inspections; Act: (F) Supervisory and managerial per- (A) Border patrol agents, including sonnel who are responsible for super- aircraft pilots; vising the activities of those officers (B) Special agents; listed above; and (C) Deportation officers; (G) Immigration officers who need (D) Immigration inspectors; the authority to arrest persons under (E) Immigration examiners; section 287(a)(5)(A) of the Act in order (F) Supervisory and managerial per- to effectively accomplish their individ- sonnel who are responsible for super- ual missions and who are designated,

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individually or as a class, by the Com- to effectively accomplish their individ- missioner with the approval of the Dep- ual missions and who are designated, uty Attorney General. individually or as a class, by the Com- (4) Arrests of person under section missioner with the approval of the Dep- 287(a)(5)(B) of the Act for any felony. (i) uty Attorney General. Section 287(a)(5)(B) of the Act author- (iv) Notwithstanding the authoriza- izes designated immigration officers, tion and designation set forth in para- as listed in paragraph (c)(4)(iii) of this graph (c)(4)(iii) of this section, no im- section, to arrest persons, without war- migration officer is authorized to make rant, for any felony cognizable under an arrest for any felony under the au- the laws of the United States if: thority of section 287(a)(5)(B) of the (A) The immigration officer has rea- Act until such time as he or she has sonable grounds to believe that the been certified by the Director of Train- person to be arrested has committed or ing as successfully completing a train- is committing such a felony; ing course encompassing such arrests (B) The immigration officer is per- and the standards for enforcement ac- forming duties relating to the enforce- tivities as defined in § 287.8 of this part. ment of the immigration laws at the Such certification shall be valid for the time of the arrest; duration of the immigration officer’s (C) There is a likelihood of the person continuous employment, unless it is escaping before a warrant can be ob- suspended or revoked by the Commis- tained for his or her arrest; and sioner or the Commissioner’s designee (D) The immigration officer has been for just cause. certified as successfully completing a (5) Arrests of persons under section training program which covers such ar- 274(a) of the Act who bring in, transport, rests and the standards with respect to or harbor certain aliens, or induce them to the enforcement activities of the Serv- enter. (i) Section 274(a) of the Act au- ice as defined in § 287.8. thorizes designated immigration offi- (ii) When making an arrest, the des- cers, as listed in paragraph (c)(5)(ii) of ignated immigration officer shall ad- this section, to arrest persons who here to the provisions of the enforce- bring in, transport, or harbor aliens, or ment standard governing the conduct induce them to enter the United States of arrests in § 287.8(c). in violation of law. When making an (iii) The following immigration offi- arrest, the designated immigration of- cers who have successfully completed ficer shall adhere to the provisions of basic immigration law enforcement the enforcement standard governing training are hereby authorized and des- the conduct of arrests in § 287.8(c). ignated to exercise the arrest power (ii) The following immigration offi- conferred by section 287(a)(5)(B) of the cers who have successfully completed Act: basic immigration law enforcement (A) Border patrol agents, including training are authorized and designated aircraft pilots; to exercise the arrest power conferred (B) Special agents; by section 274(a) of the Act: (C) Deportation officers; (A) Border patrol agents, including (D) Immigration inspectors (perma- aircraft pilots; nent full-time immigration inspectors (B) Special agents; only); (C) Deportation officers; (E) Immigration examiners when in (D) Immigration inspectors; the uniform of an immigration inspec- (E) Immigration examiners when in tor and performing inspections or su- the uniform of an immigration inspec- pervising other immigration inspectors tor and performing inspections or su- performing inspections; pervising other immigration inspectors (F) Supervisory and managerial per- performing inspections; sonnel who are responsible for super- (F) Supervisory and managerial pervising the activities of those officers sonnel who are responsible for super- listed above; and vising the activities of those officers (G) Immigration officers who need listed above; and the authority to arrest persons under (G) Immigration officers who need section 287(a)(5)(B) of the Act in order the authority to arrest persons under

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section 274(a) of the Act in order to ef- cessfully completed basic immigration fectively accomplish their individual law enforcement training are hereby missions and who are designated, indi- authorized and designated to exercise vidually or as a class, by the Commis- the power conferred by section 287(a) of sioner with the approval of the Deputy the Act to execute a search warrant: Attorney General. (i) Border patrol agents, including (6) Custody and transportation of pre- aircraft pilots; viously arrested persons. In addition to (ii) Special agents; the authority to arrest pursuant to a (iii) Supervisory and managerial per- warrant of arrest in paragraph (e)(2)(i) sonnel who are responsible for super- of this section, detention enforcement vising the activities of those officers officers who have successfully com- listed above, and pleted basic immigration law enforce- (iv) Immigration officers who need ment training are hereby authorized the authority to execute search war- and designated to take and maintain rants under section 287(a) of the Act in custody of and transport any person order to effectively accomplish their who has been arrested by an immigra- individual missions and who are des- tion officer pursuant to paragraphs ignated, individually or as a class, by (c)(1) through (c)(5) of this section. the Commissioner with the approval of (d) Power and authority to conduct the Deputy Attorney General. searches. (1) Section 287(c) of the Act (2) Arrest warrants—(1) Immigration authorizes designated immigration of- violations. The following immigration ficers, as listed in paragraph (d)(2) of officers who have successfully com- this section, to conduct a search, with- pleted basic immigration law enforce- out warrant, of the person and of the ment training are hereby authorized personal effects in the possession of my and designated to exercise the power person seeking admission to the United pursuant to section 287(a) of the Act to States if the immigration officer has execute warrants of arrest for adminis- reasonable cause to suspect that trative immigration violations issued grounds exist for exclusion from the under section 242 of the Act or to exe- United States under the Act that would cute warrants of criminal arrest issued be disclosed by such search. under the authority of the United (2) The following immigration offi- States: cers who have successfully completed (A) Border patrol agents, including basic immigration law enforcement aircraft pilots; training are hereby authorized and des- (B) Special agents; ignated to exercise the power to con- (C) Deportation officers; duct searches conferred by section (D) Detention enforcement officers 287(c) of the Act: (warrants of arrest for administrative (i) Border patrol agents, including immigration violations only); aircraft pilots; (E) Immigration inspectors; (ii) Special agents; (F) Immigration examiners when in (iii) Deportation officers; the uniform of an immigration inspec- (iv) Immigration inspectors; tor and performing inspections or su- (v) Immigration examiners; pervising other immigration inspectors (vi) Supervisory and managerial per- performing inspections; sonnel who are responsible for super- (G) Supervisory and managerial pervising the activities of those officers sonnel who are responsible for super- listed above; and vising the activities of those officers (vii) Immigration officers who need listed above; and the authority to conduct searches (H) Immigration officers who need under section 287(c) of the Act in order the authority to execute arrest war- to effectively accomplish their individ- rants for immigration violations under ual missions and who are designated, section 287(a) of the Act in order to ef- individually or as a class, by the Com- fectively accomplish their individual missioner. missions and who are designated, indi- (e) Power and authority to execute war- vidually or as a class, by the Commis- rants—(1) Search warrants. The follow- sioner, for warrants of arrest for ad- ing immigration officers who have suc- ministrative immigration violations,

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and with the approval of the Deputy (8) Immigration officers who need the Attorney General, for warrants of authority to carry firearms under sec- criminal arrest. tion 287(a) of the Act in order to effec- (ii) Non-immigration violations. The tively accomplish their individual mis- following immigration officers who sions and who are designated, individ- have successfully completed basic im- ually or as a class, by the Commis- migration law enforcement training sioner with the approval of the Deputy are hereby authorized and designated Attorney General. to exercise the power to execute warrants of criminal arrest for non-immi- [59 FR 42415, Aug. 17, 1994] gration violations issued under the au- § 287.6 Proof of official records. thority of the United States: (A) Border patrol agents, including (a) Domestic. In any proceeding under aircraft pilots; this chapter, an official record or entry (B) Special agents; therein, when admissible for any pur- (C) Deportation officers; pose, shall be evidenced by an official (D) Supervisory and managerial per- publication thereof, or by a copy at- sonnel who are responsible for super- tested by the official having legal cus- vising the activities of those officers tody of the record or by an authorized listed above; and deputy. (E) Immigration officers who need (b) Foreign: Countries not Signatories the authority to execute warrants of to Convention. (1) In any proceeding arrest for non-immigration violations under this chapter, an official record or under section 287(a) of the Act in order entry therein, when admissible for any to effectively accomplish their individ- purpose, shall be evidenced by an offi- ual missions and who are designated, cial publication thereof, or by a copy individually or as a class, by the Com- attested by an officer so authorized. missioner with the approval of the Dep- This attested copy in turn may but uty Attorney General. need not be certified by any authorized (f) Power and authority to carry fire- foreign officer both as to the genuine- arms. The following immigration offi- ness of the signature of the attesting cers who have successfully completed officer and as to his/her official posi- basic immigration enforcement train- tion. The signature and official posi- ing are hereby authorized and des- tion of this certifying foreign officer ignated to exercise the power conferred may then likewise be certified by any by section 287(a) of the Act to carry other foreign officer so authorized, firearms provided that they are indi- thereby creating a chain of certifi- vidually qualified by training and expe- cates. rience to handle and safely operate the (2) The attested copy, with the addi- firearms they are permitted to carry, tional foreign certificates if any, must maintain proficiency in the use of such be certified by an officer in the Foreign firearms, and adhere to the provisions Service of the United States, stationed of the enforcement standard governing in the foreign country where the record the use of force in § 287.8(a): is kept. This officer must certify the (1) Border patrol agents, including genuineness of the signature and the aircraft pilots; official position either of (i) the attest- (2) Special agents; ing officer; or (ii) any foreign officer (3) Deportation officers; whose certification of genuineness of (4) Detention enforcement officers; signature and official position relates (5) Immigration inspectors; directly to the attestation or is in a (6) Immigration examiners when in chain of certificates of genuineness of the uniform of an immigration inspec- signature and official position relating tor and performing inspections or su- to the attestation. pervising other immigration inspectors (c) Foreign: Countries Signatory to performing inspections; Convention Abolishing the Requirement of (7) Supervisory and managerial per- Legislation for Foreign Public Document. sonnel who are responsible for super- (1) In any proceeding under this chap- vising the activities of those officers ter, a public document or entry there- listed above; and in, when admissible for any purpose,

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may be evidenced by an official publi- custody of the record or by an author- cation, or by a copy properly certified ized deputy. under the Convention. To be properly [50 FR 37834, Sept. 18, 1985, as amended at 54 certified, the copy must be accom- FR 39337, Sept. 26, 1989; 54 FR 48851, Nov. 28, panied by a certificate in the form dic- 1989] tated by the Convention. This certificate must be signed by a foreign officer § 287.7 Detainer provisions under section 287(d)(3) of the Act. so authorized by the signatory country, and it must certify (i) the authenticity (a) Detainers in general. (1) A detainer of the signature of the person signing may be issued only in the case of an the document; (ii) the capacity in alien who there is reason to believe is which that person acted, and (iii) amenable to exclusion or deportation proceedings under any provision of law. where appropriate, the identity of the The following immigration officers are seal or stamp which the document hereby authorized to issue detainers bears. under section 287(d)(3) of the Act: (2) No certification is needed from an (i) Border patrol agents, including officer in the Foreign Service of public aircraft pilots; documents. (ii) Special agents; (3) In accordance with the Conven- (iii) Deportation officers; tion, the following are deemed to be (iv) Immigration inspectors; public documents: (v) Immigration examiners; (i) Documents emanating from an au- (vi) Supervisory and managerial per- thority or an official connected with sonnel who are responsible for super- the courts of tribunals of the state, in- vising the activities of those officers cluding those emanating from a public listed above; and prosecutor, a clerk of a court or a proc- (vii) Immigration officers who need ess server; the authority to issue detainers under section 287(d)(3) of the Act in order to (ii) Administrative documents; effectively accomplish their individual (iii) Notarial acts; and missions and who are designated, indi- (iv) Official certificates which are vidually or as a class, by the Commis- placed on documents signed by persons sioner. in their private capacity, such as offi- (2) Availability of records. In order for cial certificates recording the registra- the Service to accurately determine tion of a document or the fact that it the propriety of issuing a detainer, was in existence on a certain date, and serving an order to show cause, or tak- official and notarial authentication of ing custody of an alien in accordance signatures. with this section, the criminal justice (4) In accordance with the Conven- agency requesting such action or in- tion, the following are deemed not to forming the service of a conviction or be public documents, and thus are sub- act which renders an alien excludable ject to the more stringent require- or deportable under any provision of ments of § 287.6(b) above: law shall provide the Service with all (i) Documents executed by diplo- documentary records and information matic or consular agents; and available from the agency which reasonably relates to the alien’s status in (ii) Administrative documents deal- the United States, or which may have ing directly with commercial or cus- an impact on conditions of release. toms operations. (3) Telephonic detainers. Issuance of a (d) Canada. In any proceedings under detainer in accordance with this sec- this chapter, an official record or entry tion may be authorized telephonically, therein, issued by a Canadian govern- provided such authorizations are con- mental entity within the geographical firmed in writing on Form I–247, or by boundaries of Canada, when admissible electronic communications transfer for any purpose, shall be evidenced by media (e.g. the National Law Enforce- a certified copy of the original record ment Telecommunications System attested by the official having legal (NLETS)) within twenty-four hours of

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the telephonic authorization. The con- deadly force should circumstances war- tents of the electronic transfer shall rant it: contain substantially the same lan- (A) Border patrol agents, including guage as the Form I–247. aircraft pilots; (4) Temporary detention at Service re- (B) Special agents; quest. Upon a determination by the (C) Deportation officers; Service to issue a detainer for an alien (D) Detention enforcement officers; not otherwise detained by a criminal (E) Immigration inspectors; justice agency, such agency shall main- (F) Immigration examiners when in tain custody of the alien for a period the uniform of an immigration inspec- not to exceed forty-eight hours, in tor and performing inspections or su- order to permit assumption of custody pervising other immigration inspectors by the Service. performing inspections; (5) Financial responsibility for deten- (G) Supervisory and managerial per- tion. No detainer issued as a result of a sonnel who are responsible for super- determination made under this chapter vising the activities of those officers shall incur any fiscal obligation on the listed above; and part of the Service, until actual as- (H) Immigration officers who need sumption of custody by the Service, ex- the authority to use non-deadly force cept as provided in paragraph (a)(4) of under section 287(a) of the Act in order this section. to effectively accomplish their individ- [53 FR 9283, Mar. 22, 1988, as amended at 55 ual missions and who are designated, FR 43327, Oct. 29, 1990; 59 FR 42418, August 17, individually or as a class, by the Com- 1994] missioner. (2) Deadly force. (i) Deadly force is § 287.8 Standards for enforcement ac- any use of force that is likely to cause tivities. death or serious bodily harm. The following standards for enforce- (ii) Deadly force may be used only ment activities contained in this sec- when a designated immigration officer, tion must be adhered to by every immi- as listed in paragraph (a)(2)(iii) of this gration officer involved in enforcement section, has reasonable grounds to be- activities. Any violation of this section lieve that such force is necessary to shall be reported pursuant to § 287.10. protect the designated immigration of- (a) Use of force—(1) Non-deadly force. ficer or other persons from the present (i) Non-deadly force is any use of force danger of death or serious bodily harm. other than that which is considered (iii) The following immigration offi- deadly force as defined in paragraph cers who have successfully completed (a)(2) of this section. basic immigration law enforcement (ii) Non-deadly force may be used training are hereby authorized and des- only when a designated immigration ignated to exercise the power conferred officer, as listed in paragraph (a)(1)(iv) by section 287(a) of the Act to use dead- of this section, has reasonable grounds ly force should circumstances warrant to believe that such force is necessary. it: (iii) A designated immigration officer (A) Border patrol agents, including shall always use the minimum non- aircraft pilots; deadly force necessary to accomplish (B) Special agents; the officer’s mission and shall escalate (C) Deportation officers; to a higher level of non-deadly force (D) Detention enforcement officers; only when such higher level of force is (E) Immigration inspectors; warranted by the actions, apparent in- (F) Immigration examiners when in tentions, and apparent capabilities of the uniform of an immigration inspec- the suspect, prisoner, or assailant. tor and performing inspections or su- (iv) The following immigration offi- pervising other immigration inspectors cers who have successfully completed performing inspections; basic immigration law enforcement (G) Supervisory and managerial per- training are hereby authorized and des- sonnel who are responsible for super- ignated to exercise the power conferred vising the activities of those officers by section 287(a) of the Act to use non- listed above; and

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(H) Immigration officers who need (iv) With respect to an alien arrested the authority to use deadly force under and administratively charged with section 287(a) of the Act in order to ef- being in the United States in violation fectively accomplish their individual of law, the arresting officer shall admissions and who are designated, indi- here to the procedures set forth in vidually or as a class, by the Commis- § 287.3 if the arrest is made without a sioner with the approval of the Deputy warrant, and to the procedures set Attorney General. forth in § 242.2(c)(2) of this chapter if (b) Interrogation and detention not the arrest is made with a warrant. amounting to arrest. (1) Integration is (v) With respect to a person arrested questioning designed to elicit specific and charged with a criminal violation information. An immigration officer, of the laws of the United States, the like any other person, has the right to arresting officer shall advise the person ask questions of anyone as long as the of the appropriated rights as required immigration officer does not restrain by law at the time of the arrest, or as the freedom of an individual, not under soon thereafter as practicable. It is the arrest, to walk away. duty of the immigration officer to as- (2) If the immigration officer has a sure that the warnings are given in a reasonable suspicion, based on specific language the subject understands, and articulable facts, that the person being that the subject acknowledges that the questioned is, or is attempting to be, warnings are understood. The fact that engaged in an offense against the Unit- a person has been advised of his or her ed States or is an alien illegally in the rights shall be documented on appro- United States, the immigration officer priate Service forms and made a part of may briefly detain the person for ques- the arrest record. tioning. (vi) Every person arrested and charged with a criminal violation of (3) Information obtained from this the laws of the United States shall be questioning may provide the basis for a brought without unnecessary delay be- subsequent arrest, which must be ef- fore a United States magistrate judge, fected only by a designated immigra- a United States district judge or, if tion officer, as listed in § 287.5(c). The necessary, a judicial officer empowered conduct of arrests is specified in para- in accordance with 18 U.S.C. 3041 to graph (c) of this section. commit persons charged with such (c) —(1) Conduct of arrests Authority. crimes. Accordingly, the immigration Only designated immigration officers officer shall contact an Assistant Unit- are authorized to make an arrest. The ed States Attorney to arrange for an list of designated immigration officers initial appearance. varies depending on the type of arrest (vii) The use of threats, coercion, or as listed in § 287.5(c)(1) through (c)(5). physical abuse by the designated immi- (2) General procedures. (i) An arrest gration officer to induce a suspect to shall be made only when the designated waive his or her rights or to make a immigration officer has reason to be- statement is prohibited. lieve that the person to be arrested has (d) Transportation—(1) Vehicle trans- committed an offense against the Unit- portation. All persons will be trans- ed States or is an alien illegally in the ported in a manner that ensures the United States. safety of the persons being transported. (ii) A warrant of arrest shall be ob- When persons arrested or detained are tained whenever possible prior to the being transported by vehicle, each per- arrest. son will be searched as thoroughly as (iii) At the time of the arrest, the circumstances permit before being designated immigration officer shall, placed in the vehicle. The person being as soon as it is practical and safe to do transported shall not be handcuffed to so: the frame or any part of the moving ve- (A) Identify himself or herself as an hicle or an object in the moving vehi- immigration officer who is authorized cle. The person being transported shall to execute an arrest; and not be left unattended during transport (B) State that the person is under ar- unless the immigration officer needs to rest and the reason for the arrest. perform a law enforcement function.

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(2) Airline transportation. The escort- cer’s report that consent was given ing officer(s) must abide by all Federal and, if possible, by whom consent was Aviation Administration and airline given. If the immigration officer is de- carrier rules and regulations pertain- nied access to conduct a site inspec- ing to weapons and the transportation tion, a warrant may be obtained. of prisoners. (3) Adequate records must be main- (e) Vehicular pursuit. (1) A vehicular tained noting the results of every site pursuit is an active attempt by a des- inspection, including those where no il- ignated immigration officer, as listed legal aliens are located. in paragraph (e)(2) of this section, in a (4) Nothing in this section prohibits designated pursuit vehicle to appre- an immigration officer from entering hend fleeing suspects who are attempting to avoid apprehension. A des- into any area of a business or other ac- ignated pursuit vehicle is defined as a tivity to which the general public has vehicle equipped with emergency lights access or onto open fields that are not and siren, placed in or on the vehicle, farms or other outdoor agricultural op- that emit audible and visual signals in erations without a warrant, consent, or order to warn others that emergency any particularized suspicion in order to law enforcement activities are in question any person whom the officer progress. believes to be an alien concerning his (2) The following immigration offi- or her right to be or remain in the cers who have successfully completed United States. basic immigration law enforcement [59 FR 42418, Aug. 17, 1994] training are hereby authorized and designated to initiate a vehicular pursuit: § 287.9 Criminal search warrant and (i) Border patrol agents, including firearms policies. aircraft pilots; (ii) Supervisory personnel who are re- (a) A search warrant should be ob- sponsible for supervising the activities tained prior to conducting a search in of those officers listed above; and a criminal investigation unless a spe- (iii) Immigration officers who need cific exception to the warrant require- the authority to initiate a vehicular ment is authorized by statute or recog- pursuit in order to effectively accom- nized by the courts. Such exceptions plish their individual mission and who may include, for example, the consent are designated, individually or as a of the person to be searched, exigent class, by the Commissioner. circumstances, searches incident to a (f) Site inspections. (1) Site inspections lawful arrest, and border searches. The are Service enforcement activities un- Commissioner shall promulgate guide- dertaken to locate and identify aliens lines governing officers’ conduct relat- illegally in the United States, or aliens ing to search and seizure. engaged in unauthorized employment, (b) In using a firearm, an officer shall at locations where there is a reason- adhere to the standard of conduct set able suspicion, based on articulable forth in § 287.8(a)(2). An immigration of- facts, that such aliens are present. ficer may carry only firearms (whether (2) An immigration officer may not Service issued or personally owned) enter into the non-public areas of a business, a residence including the that have been approved pursuant to curtilage of such residence, or a farm guidelines promulgated by the Com- or other outdoor agricultural oper- missioner. The Commissioner shall ation, except as provided in section promulgate guidelines with respect to: 287(a)(3) of the Act, for the purpose of (1) Investigative procedures to be fol- questioning the occupants or employ- lowed after a shooting incident involv- ees concerning their right to be or re- ing an officer; main in the United States unless the (2) Loss or theft of an approved fire- officer has either a warrant or the con- arm; sent of the owner or other person in (3) Maintenance of records with re- control of the site to be inspected. spect to the issuance of firearms and When consent to enter is given, the im- ammunition; and migration officer must note on the offi-

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(4) Procedures for the proper care, thority conferred upon the Office of the storage, and maintenance of firearms, Inspector General, the Office of Profes- ammunition, and related equipment. sional Responsibility, the Federal Bu- [59 FR 42420, Aug. 17, 1994] reau of Investigation, the United States Attorneys, the Criminal Divi- § 287.10 Expedited internal review sion or the Civil Rights Division, or process. any other component of the Depart- (a) Violations of standards for enforcement of Justice, or any other order of ment activities. Alleged violations of the the Department of Justice establishing standards for enforcement activities policy or procedures for the adminis- established in accordance with the pro- tration of standards of conduct within visions of § 287.8 shall be investigated the Department of Justice. expeditiously consistent with the poli- [59 FR 42420, Aug. 17, 1994] cies and procedures of the Office of Professional Responsibility and the Of- § 287.11 Scope. fice of the Inspector General of the De- With regard to this part, these regu- partment of Justice and pursuant to lations provide internal guidance on guidelines to be established by the At- specific areas of law enforcement au- torney General. Within the Immigra- thority. These regulations do not, are tion and Naturalization Service, the not intended to, and shall not be con- Office of Internal Audit is responsible strued to exclude, supplant, or limit for coordinating the reporting and dis- otherwise lawful activities of the Im- position of allegations. migration and Naturalization Service (b) Complaints. Any persons wishing or the Attorney General. These regula- to lodge a complaint pertaining to vio- tions do not, are not intended to, shall lations of enforcement standards con- not be construed to, and may not be retained in § 287.8 may contact the De- lied upon to create any rights, sub- partment of Justice, P.O. Box 27606, stantive or procedural, enforceable at Washington, DC, 20038–7606, or tele- law by any party in any matter, civil phone 1–800–869–4499. or criminal. The Attorney General (c) Expedited processing of complaints. shall have exclusive authority to en- When an allegation or complaint of force these regulations through such violation of § 287.8 is lodged against an administrative and other means as he employee or officer of the Service, the or she may deem appropriate. allegation or complaint shall be referred promptly for investigation in ac- [59 FR 42420, Aug. 17, 1994] cordance with the policies and procedures of the Department of Justice. At PART 289—AMERICAN INDIANS the conclusion of an investigation of an BORN IN CANADA allegation or complaint of violation of § 287.8, the investigative report shall be Sec. referred promptly for appropriate ac- 289.1 Definition. tion in accordance with the policies 289.2 Lawful admission for permanent resi- and procedures of the Department of dence. Justice. 289.3 Recording the entry of certain Amer- (d) Unsubstantiated complaints. When ican Indians born in Canada. an investigative report does not sup- AUTHORITY: Secs. 103, 262, 289, 66 Stat. 173, port the allegation, the employee or of- 224, 234; 8 U.S.C. 1103, 1302, 1359; 45 Stat. 401, ficer against whom the allegation was 54 Stat. 670; 8 U.S.C. 226a, 451. made shall be informed in writing that the matter has been closed as soon as § 289.1 Definition. practicable. No reference to the allega- The term American Indian born in tion shall be filed in the official’s or Canada as used in section 289 of the Act employee’s official personnel file. includes only persons possessing 50 per (e) Jurisdiction of other Department of centum or more of the blood of the Justice organizations. Nothing in this American Indian race. It does not in- section alters or limits, is intended to clude a person who is the spouse or alter or limit, or shall be construed to child of such an Indian or a person alter or limit, the jurisdiction or au- whose membership in an Indian tribe

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or family is created by adoption, unless AUTHORITY: 8 U.S.C. 1103, 1252b, 1362. such person possesses at least 50 per centum or more of such blood. § 292.1 Representation of others. (a) A person entitled to representa- [29 FR 11494, Aug. 11, 1964] tion may be represented by any of the § 289.2 Lawful admission for perma- following: nent residence. (1) Attorneys in the United States. Any attorney as defined in § 1.1(f) of this Any American Indian born in Canada chapter. who at the time of entry was entitled (2) Law students and law graduates not to the exemption provided for such per- yet admitted to the bar. A law student son by the Act of April 2, 1928 (45 Stat. who is enrolled in an accredited law 401), or section 289 of the Act, and has school, or a law graduate who is not maintained residence in the United yet admitted to the bar, provided that: States since his entry, shall be re- (i) He or she is appearing at the regarded as having been lawfully admit- quest of the person entitled to rep- ted for permanent residence. A person resentation; who does not possess 50 per centum of (ii) In the case of a law student, he or the blood of the American Indian race, she has filed a statement that he or she but who entered the United States is participating, under the direct super- prior to December 24, 1952, under the vision of a faculty member or an attor- exemption provided by the Act of April ney, in a legal aid program or clinic 2, 1928, and has maintained his resi- conducted by a law school or non-profit dence in the United States since such organization, and that he or she is ap- entry shall also be regarded as having pearing without direct or indirect re- been lawfully admitted for permanent muneration from the alien he or she residence. In the absence of a Service represents; record of arrival in the United States, (iii) In the case of a law graduate, he the record of registration under the or she has filed a statement that he or Alien Registration Act, of 1940 (54 Stat. she is appearing under the supervision 670; 8 U.S.C. 451), or section 262 of the of a licensed attorney or accredited Act, or other satisfactory evidence representative and that he or she is ap- may be accepted to establish the date pearing without direct or indirect re- of entry. muneration from the alien he or she [29 FR 11494, Aug. 11, 1964] represents; and (iv) The law student’s or law grad- § 289.3 Recording the entry of certain uate’s appearance is permitted by the American Indians born in Canada. official before whom he or she wishes The lawful admission for permanent to appear (namely an Immigration residence of an American Indian born Judge, district director, officer-in- in Canada shall be recorded on Form I– charge, regional commissioner, the 181. Commissioner, or the Board). The official or officials may require that a law [33 FR 7485, May 21, 1968] student be accompanied by the supervising faculty member or attorney. PART 292—REPRESENTATION AND (3) Reputable individuals. Any reputa- APPEARANCES ble individual of good moral character, provided that: Sec. (i) He is appearing on an individual 292.1 Representation of others. case basis, at the request of the person 292.2 Organizations qualified for recogni- entitled to representation; tion; requests for recognition; with- (ii) He is appearing without direct or drawal of recognition; accreditation of indirect renumeration and files a writ- representatives; roster. ten declaration to that effect; 292.3 Discipline of attorneys and representatives. (iii) He has a pre-existing relation- 292.4 Appearances. ship or connection with the person en- 292.5 Service upon and action by attorney titled to representation (e.g., as a rel- or representative of record. ative, neighbor, clergyman, business 292.6 Interpretation. associate or personal friend), provided

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that such requirement may be waived, attorney or to an organization rep- as a matter of administrative discre- resented by an attorney, if the public tion, in cases where adequate represen- interest will be served thereby. tation would not otherwise be avail- (e) Except as set forth in this section, able; and no other person or persons shall rep- (iv) His appearance is permitted by resent others in any case. the official before whom he wished to appear (namely, a special inquiry offi- [40 FR 23271, May 29. 1975, as amended at 53 cer, district director, officer-in-charge, FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996] regional commissioner, the Commis- sioner, or the Board), provided that § 292.2 Organizations qualified for rec- such permission shall not be granted ognition; requests for recognition; with respect to any individual who reg- withdrawal of recognition; accredi- ularly engages in immigration and nat- tation of representatives; roster. uralization practice or preparation, or (a) Qualifications of organizations. A holds himself out to the public as non-profit religious, charitable, social qualified to do so. service, or similar organization estab- (4) Accredited representatives. A person lished in the United States and recog- representing an organization described nized as such by the Board may des- in § 292.2 of this chapter who has been ignate a representative or representa- accredited by the Board. tives to practice before the Service and (5) Accredited officials. An accredited the Board. Such organization must es- official, in the United States, of the tablish to the satisfaction of the Board government to which an alien owes al- legiance, if the official appears solely that: in his official capacity and with the (1) It makes only nominal charges alien’s consent. and assesses no excessive membership (6) Attorneys outside the United dues for persons given assistance; and States. An attorney other than one de- (2) It has at its disposal adequate scribed in § 1.1(f) of this chapter who is knowledge, information and experi- licensed to practice law and is in good ence. standing in a court of general jurisdic- (b) Requests for recognition. An organi- tion of the country in which he/she re- zation having the qualifications pre- sides and who is engaged in such prac- scribed in paragraph (a) of this section tice. Provided that he/she represents may file an application for recognition persons only in matters outside the on a Form G–27 directly with the geographical confines of the United Board, along with proof of service of a States as defined in section 101(a)(38) of copy of the application on the district the Act, and that the Service official director having jurisdiction over the before whom he/she wishes to appear area in which the organization is lo- allows such representation as a matter cated. The district director, within 30 of discretion. days from the date of service, shall for- (b) Persons formerly authorized to prac- ward to the Board a recommendation tice. A person, other than a representa- for approval or disapproval of the ap- tive of an organization described in plication and the reasons therefor, or § 292.2 of this chapter, who on December request a specified period of time in 23, 1952, was authorized to practice be- which to conduct an investigation or fore the Board and the Service may otherwise obtain relevant information continue to act as a representative, regarding the applicant. The district subject to the provisions of § 292.3 of director shall include proof of service this chapter. of a copy of such recommendation or (c) Former employees. No person pre- request on the organization. The orga- viously employed by the Department of nization shall have 30 days in which to Justice shall be permitted to act as a file a response with the Board to a rec- representative in any case in violation ommendation by a district director of the provisions of 28 CFR 45.735–7. that is other than favorable, along (d) Amicus curiae. The Board may with proof of service of a copy of such grant permission to appear, on a case- response on the district director. If the by-case basis, as amicus curiae, to an Board approves a request for time to

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conduct an investigation, or in its dis- tions, and forward the complete record cretion remands the application to the to the Board. district director for further informa- (4) The organization and the Service tion, the organization shall be advised shall have the opportunity of appearing of the time granted for such purpose. at oral argument before the Board at a The Service shall promptly forward the time specified by the Board. results of any investigation or inquiry (5) The Board shall consider the en- to the Board, along with its rec- tire record and render its decision. The ommendations for approval or dis- order of the Board shall constitute the approval and the reasons therefor, and final disposition of the proceedings. proof of service of a copy of the submis- (d) Accreditation of representatives. An sion on the organization. The organiza- organization recognized by the Board tion shall have 30 days from the date of under paragraph (b) of this section may such service to file a response with the apply for accreditation of persons of Board to any matters raised therein, good moral character as its representa- with proof of service of a copy of the tives. An organization may apply to response on the district director. Re- have a representative accredited to quests for extensions of filing times must be submitted in writing with the practice before the Service alone or the reasons therefor and may be granted by Service and the Board (including prac- the Board in its discretion. Oral argu- tice before immigration judges). An ap- ment may be heard before the Board in plication for accreditation shall fully its discretion at such date and time as set forth the nature and extent of the the Board may direct. The organization proposed representative’s experience and Service shall be informed by the and knowledge of immigration and nat- Board of the action taken regarding an uralization law and procedure and the application. Any recognized organiza- category of accreditation sought. No tion shall promptly notify the Board of individual may submit an application any changes in its name, address, or on his or her own behalf. An applica- public telephone number. tion shall be filed directly with the (c) Withdrawal of recognition. The Board, along with proof of service of a Board may withdraw the recognition of copy of the application on the district any organization which has failed to director having jurisdiction over the maintain the qualifications required by area in which the requesting organiza- § 292.2(a). Withdrawal of recognition tion is located. The district director, may be accomplished in accordance within 30 days from the date of service, with the following procedure: shall forward to the Board a rec- (1) The Service, by the district direc- ommendation for approval or dis- tor within whose jurisdiction the orga- approval of the application and the rea- nization is located, may conduct an in- sons therefor, or request a specified pe- vestigation into any organization it be- riod of time in which to conduct an in- lieves no longer meets the standards vestigation or otherwise obtain rel- for recognition. evant information regarding the appli- (2) If the investigation establishes to cant. The district director shall include the satisfaction of the district director proof of service of a copy of such rec- that withdrawal proceedings should be ommendation or request on the organi- instituted, he shall cause a written zation. The organization shall have 30 statement of the grounds upon which days in which to file a response with withdrawal is sought to be served upon the Board to a recommendation by a the organization, with notice to show distrct director that is other than fa- cause why its recognition should not be vorable, with proof of service of a copy withdrawn. The notice will call upon of such response on the district direc- the organization to appear before a spe- tor. If the Board approves a request for cial inquiry officer for a hearing at a time to conduct an investigation, or in time and place stated, not less than 30 its discretion remands the application days after service of the notice. to the district director for further in- (3) The special inquiry officer shall formation, the organization shall be hold a hearing, receive evidence, make advised of the time granted for such findings of fact, state his recommenda- purpose. The district director shall

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promptly forward the results of any in- lic interest to do so. Appropriate dis- vestigation or inquiry to the Board, ciplinary sanctions may include disbar- along with a recommendation for ap- ment, suspension, reprimand or cen- proval or disapproval and the reasons sure, or such other sanction as deemed therefor, and proof of service of a copy appropriate. The suspension, disbar- of the submission on the organization. ment, or imposition of other appro- The organization shall have 30 days priate disciplinary action against an from the date of service to file a re- attorney or representative who is with- sponse with the Board to any matters in one or more of the following cat- raised therein, with proof or service of egories shall be deemed to be in the a copy of the response on the district director. Requests for extensions of fil- public interest, for the purposes of this ing times must be submitted in writing part, but the enumeration of the fol- with the reasons therefor and may be lowing categories does not constitute granted by the Board in its discretion. the exclusive grounds for discipline in Oral argument may be heard before the the public interest: Board in its discretion at such date and (1) Who charges or receives, either di- time as the Board may direct. The rectly or indirectly, any fee or com- Board may approve or disapprove an pensation for services which may be application in whole or in part and deemed to be grossly excessive in rela- shall inform the organization and the tion to the services performed, or who, district director of the action taken being an accredited representative of with regard to an application. The ac- an organization recognized under creditation of a representative shall be § 1.1(j) of this chapter, charges or re- valid for a period of three years only; ceives either directly or indirectly any however, the accreditation shall re- fee or compensation for services ren- main valid pending Board consider- dered to any person, except that an ac- ation of an application for renewal of credited representative of such an or- accreditation if the application is filed ganization may be regularly com- at least 60 days before the third anni- pensated by the organization of which versary of the date of the Board’s prior accreditation of the representative. Ac- he is an accredited representative; creditation terminates when the (2) Who, with intent to defraud or de- Board’s recognition of the organization ceive, bribes, attempts to bribe, co- ceases for any reason or when the rep- erces, or attempts to coerce, by any resentative’s employment or other con- means whatsoever, any person, includ- nection with the organization ceases. ing a party to a case, or an officer or The organization shall promptly notify employee of the Service or Board, to the Board of such changes. commit an act or to refrain from per- (e) Roster. The Board shall maintain forming an act in connection with any an alphabetical roster of recognized or- case; ganizations and their accredited rep- (3) Who willfully misleads, mis- resentatives. A copy of the roster shall informs, or deceives an officer or em- be furnished to the Commissioner and ployee of the Department of Justice he shall be advised from time to time concerning any material and relevant of changes therein. fact in connection with a case; [40 FR 23272, May 29, 1975, as amended at 49 (4) Who willfully deceives, misleads, FR 44086, Nov. 2, 1984] or threatens any party to a case concerning any matter relating to the § 292.3 Discipline of attorneys and rep- case; resentatives. (5) Who solicits practice in any un- (a) Grounds. The Immigration Judge, ethical or unprofessional manner, in- Board, or Attorney General may sus- cluding but not limited to, the use of pend or bar from further practice be- runners. fore the Executive Office for Immigra- tion Review or the Service, or may (6) Who represents, as an associate, take other appropriate disciplinary ac- any person who, known to him, solicits tion against, an attorney or represent- practice in any unethical or unpro- ative if it is found that it is in the pub- fessional manner, including, but not

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limited to, the use of runners, or adver- she knows or reasonably should have tising his availability to handle immi- known that his or her actions lack an gration, naturalization, or nationality arguable basis in law or in fact, or are matters; taken for an improper purpose, such as (7) Who has been temporarily sus- to cause unnecessary delay. Actions pended, and such suspension is still in that, if taken improperly, may be sub- effect, or permanently disbarred, from ject to discipline include, but are not practice in any court, Federal, State limited to, the making of an argument (including the District of Columbia), on any factual or legal question, the territorial, or insular; submission of an application for discre- (8) Who is temporarily suspended, tionary relief, the filing of a motion, or and such suspension is still in effect, or the filing of an appeal. The signature of permanently disbarred, from practice an attorney or an accredited represent- in a representative capacity before any ative on any filing, application, mo- executive department, board, commis- tion, appeal, brief, or other paper con- sion, or other governmental unit, Fed- stitutes certification by the signer that eral, State (including the District of the signer has read the filing, applica- Columbia), territorial, or insular; tion, motion, appeal, brief, or other (9) Who, by use of his name, personal paper, and that, to the best of the sign- appearance, or any device, aids and er’s knowledge, information, and be- abets any person to practice during the lief, formed after reasonable inquiry, period of his suspension or disbarment, the document is well grounded in fact, such suspension or disbarment being is warranted by existing law or by a known to him; good faith argument for the extension, (10) Who willfully made false and ma- modification, or reversal of existing terial statements or representations law, and is not interposed for any im- with respect to his qualifications or au- proper purpose; thority to represent others in any case; (ii) The imposition of disciplinary ac- (11) Who engages in contumelious or tion for frivolous behavior under this otherwise obnoxious conduct with re- section in no way limits the Board’s spect to a case in which he acts in a authority summarily to dismissal an representative capacity, which in the appeal pursuant to 8 CFR 3.1(d)(1–a). opinion of the Board, would constitute (b) Procedure—(1) Non-Service attor- cause for suspension or disbarment if neys and accredited representatives—(i) the case was pending before a court, or Investigation of charges. Complaints re- which, in such a judicial proceeding, garding the conduct of attorneys and would constitute a contempt of court; representatives practicing before the (12) Who, having been furnished with Service or the Executive Office for Im- a copy of any portion of the record in migration Review pursuant to 8 CFR a case, willfully fails to surrender such 292.1 shall be investigated by the Serv- copy upon final disposition of the case ice. or upon demand, or willfully and with- (ii) Service and filing of charges. If an out authorization makes and retains a investigation establishes, to the satis- copy of the material furnished; faction of the Service, that discipli- (13) Who has been convicted of a fel- nary proceedings should be instituted, ony, or, having been convicted of any the General Counsel of the Service crime is sentenced to imprisonment for shall cause a copy of written charges to a term of more than one year; or be served upon the attorney/represent- (14) Who has falsely certified a copy ative either by personal service or by of a document as being a true and com- registered mail. The General Counsel plete copy of an original. shall also file the written charges with (15) Who has engaged in frivolous be- the Office of the Chief Immigration havior in a proceeding before an Immi- Judge immediately after service of the gration Judge, the Board of Immigra- charges upon the attorney/representation Appeals, or any other administrative. tive appellate body under title II of the (iii) Service and filing of answer. The Immigration and Nationality Act. attorney/representative shall answer (i) An attorney or representative en- the charges, in writing, within thirty gages in frivolous behavior when he or (30) days after the date of service, and

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shall file the answer with the Office of in a timely manner, or if the appeal is the Chief Immigration Judge. Failure waived, the decision of the Immigra- of the attorney/representative to an- tion Judge is final. If a case is appealed swer the written charges in a timely in a timely manner, the Board shall manner shall constitute an admission consider the record and render a deci- that the facts and legal statements in sion. Receipt of briefs and the hearing the written charges are correct. The of oral argument shall be at the discre- attorney/representative shall also serve tion of the Board. The Board’s decision a copy of the answer on the General shall be final except when a case is cer- Counsel. Proof of service on the oppos- tified to the Attorney General pursuing party must be included with all ant to 8 CFR 3.1(h). documents filed. (2) Service attorneys. Complaints re- (iv) Hearing. The Chief Immigration garding the frivolous behavior of Serv- Judge shall designate an Immigration ice attorneys within the scope of Judge to hold a hearing and render a § 292.3(a)(15) shall be directed to, and in- decision in the matter. The designated vestigated by, the Office of Profes- Immigration Judge shall notify the at- sional Responsibility of the Depart- torney/representative and the Service ment of Justice. If disciplinary action as to the time and the place of the is warranted, it shall be administered hearing. At the hearing, the attorney/ pursuant to the attorney disciplinary representative may be represented by procedures of the Department of Jus- an attorney at no expense to the Gov- tice. ernment and the Service shall be rep- [23 FR 2672, Apr. 23, 1958, as amended at 23 resented by an attorney. At the hear- FR 9124, Nov. 26, 1958; 34 FR 12213, July 24, ing, the attorney/representative shall 1969; 36 FR 11903, June 23, 1971; 52 FR 24981, have a reasonable opportunity to ex- July 2, 1987; 57 FR 11574, Apr. 6, 1992; 60 FR amine and object to the evidence pre- 34090, June 30, 1995] sented by the Service, to present evidence on his or her own behalf, and to § 292.4 Appearances. cross-examine witnesses presented by (a) An appearance shall be filed on the Service. The Service shall bear the the appropriate form by the attorney burden of proving the grounds for dis- or representative appearing in each ciplinary action by clear, convincing, case. During Immigration Judge or and unequivocal evidence. The record Board proceedings, withdrawal and/or of the hearing shall conform to the re- substitution of counsel is permitted quirements of 8 CFR 242.15. only in accordance with §§ 3.16 and 3.36 (v) Decision. The Immigration Judge respectively. During proceedings before shall consider the record and render a the Service, substitution may be per- decision in the case, including that the mitted upon the written withdrawal of evidence presented does not suffi- the attorney or representative of ciently prove grounds for disciplinary record, or upon notification of the new action or that disciplinary action is attorney or representative. When an justified. If the Immigration Judge appearance is made by a person acting finds that the evidence presented does in a representative capacity, his or her sufficiently prove grounds for discipli- personal appearance or signature shall nary action, the appropriate sanction constitute a representation that under shall be ordered. If the Immigration the provisions of this chapter he or she Judge orders a suspension, the Immi- is authorized and qualified to rep- gration Judge shall set an amount of resent. Further proof of authority to time for the suspension. act in a representative capacity may be (vi) Appeal. Either party may appeal required. A notice of appearance en- the decision of the Immigration Judge tered in application or petition pro- to the Board. The appeal must be filed ceedings must be signed by the appli- within ten (10) days from the date of cant or petitioner to authorize rep- the decision, if oral, or thirteen (13) resentation in order for the appearance days from the date of mailing of the de- to be recognized by the Service. cision, if written. The appeal must be (b) Availability of records. During the filed with the Immigration Court hold- time a case is pending, and except as ing the hearing. If an appeal is not filed otherwise provided in § 103.2(b) of this

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chapter, a party to a proceeding or his criminal investigation and has been attorney or representative shall be per- taken into custody. mitted to examine the record of pro- [37 FR 11471, June 8, 1972 and 45 FR 81733, ceeding in a Service office. He may, in Dec. 12, 1980; 46 FR 2025, Jan. 8, 1981; 58 FR conformity with § 103.10 of this chapter, 49911, Sept. 24, 1993] obtain copies of Service records or information therefrom and copies of doc- § 292.6 Interpretation. uments or transcripts of evidence fur- Interpretations of this part will be nished by him. Upon request, he may in made by the Board of Immigration Ap- addition, be loaned a copy of the testi- peals, subject to the provisions of part mony and exhibits contained in the 3 of this chapter. record of proceeding upon giving his receipt for such copies and pledging that [32 FR 9633, July 4, 1967] it will be surrendered upon final disposition of the case or upon demand. If PART 292a—LISTING OF FREE extra copies of exhibits do not exist, LEGAL SERVICES PROGRAMS they shall not be furnished free on loan; however, they shall be made Sec. available for copying or purchase of 292a.1 Listing. copies as provided in § 103.10 of this 292a.2 Qualifications. chapter. 292a.3 Applications. 292a.4 Approval and denial of applications. [23 FR 2673, Apr. 23, 1958, as amended at 32 292a.5 Removal of an organization from list. FR 9633, July 4, 1967; 52 FR 2941, Jan. 29, 1987; 59 FR 1466, Jan. 11, 1994] AUTHORITY: Sec. 103; 8 U.S.C. 1103, interpret or apply secs. 242 and 292 (8 U.S.C. 1252 and 1362). § 292.5 Service upon and action by attorney or representative of record. SOURCE: 44 FR 4654, Jan. 23, 1979, unless otherwise noted. (a) Representative capacity. Whenever a person is required by any of the pro- § 292a.1 Listing. visions of this chapter to give or be given notice; to serve or be served with District directors and officers-in- any paper other than a warrant of ar- charge shall maintain a current list of rest or a subpoena; to make a motion; organizations qualified under this part to file or submit an application or and organizations recognized under § 292.2 of this chapter which have ap- other document; or to perform or waive plied for listing under § 292a.3 of this the performance of any act, such no- part, located within their respective ju- tice, service, motion, filing, submis- risdictions, for the purpose of providing sion, performance, or waiver shall be aliens in deportation or exclusion pro- given by or to, served by or upon, made ceedings with a list of such organiza- by, or requested of the attorney or rep- tions as prescribed in this chapter. resentative of record, or the person himself if unrepresented. [45 FR 43681, June 30, 1980] (b) Right to representation. Whenever an examination is provided for in this § 292a.2 Qualifications. chapter, the person involved shall have Except for an organization which is the right to be represented by an attor- recognized under § 292.2 of this chapter ney or representative who shall be per- and is available to render legal services mitted to examine or cross-examine in deportation or exclusion proceed- such person and witnesses, to introduce ings, an organization which seeks to evidence, to make objections which have its name appear on the Service shall be stated succinctly and entered lists must show that it is established in on the record, and to submit briefs. the United States, provides free legal Provided, that nothing in this para- services to indigent aliens, has on its graph shall be construed to provide any staff attorneys as defined in § 1.1(f) of applicant for admission in either pri- this chapter or retains, at no expense mary or secondary inspection the right to the alien, attorneys as defined in to representation, unless the applicant § 1.1(f) of this chapter, who are avail- for admission has become the focus of a able to render such free legal services

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by representation in deportation or ex- in the event an answer is submitted, clusion proceedings. Bar associations the district director or officer-in- which provide a referral service of at- charge determines that the organiza- torneys who render pro bono assistance tion does not qualify under § 292a.2, he/ to aliens in deportation or exclusion she shall remove its name from the proceedings may also qualify to have list. Removal must be based on the their names appear on the Service list. failure of the organization to meet the Listing of an organization qualified qualifications specified in § 292a.2 of under this part is not equivalent to this chapter. The organization shall be recognition under § 292.2 of this chap- advised of its right to appeal in accord- ter. ance with §§ 103.1 and 103.3 of this chapter. If an organization applies to the [44 FR 4654, Jan. 23, 1979, as amended at 45 FR 43681, June 30, 1980] district director or officer-in-charge to have its name removed from the Serv- § 292a.3 Applications. ice list, that request shall be honored. Applications by organizations to [49 FR 41015, Oct. 19, 1984] qualify for listing under this part shall be submitted to the district director or PART 293—DEPOSIT OF AND INTER- officer-in-charge having jurisdiction EST ON CASH RECEIVED TO SE- over each area in which free legal serv- CURE IMMIGRATION BONDS ices are being provided by the organization. The application shall be sup- Sec. ported by a declaration signed by an 293.1 Computation of interest. authorized officer of the organization 293.2 Interest rate. that the organization complies with all 293.3 Simple interest table. the qualifications set out in § 292a.2. 293.4 Payment of interest.

§ 292a.4 Approval and denial of appli- AUTHORITY: Sec. 103, 66 Stat. 173; 8 U.S.C. cations. 1103. Interprets and applies sec. 293, 84 Stat. 413. District Directors or officers-in- SOURCE: 36 FR 13677, July 23, 1971, unless charge shall have the authority to otherwise noted. grant or deny an application submitted by an organization under this part, § 293.1 Computation of interest. within their respective jurisdiction. If Interest shall be computed from the an application is denied, the applicant date of deposit occurring after April 27, shall be notified of the decision in writ- 1966, or from the date cash deposited in ing giving the grounds of such denial. the postal savings system ceased to ac- Denial must be based on the failure of crue interest, to and including the date the organization to meet the qualifica- of withdrawal or date of breach of the tions specified in § 292a.2. The organiza- immigration bond, whichever occurs tion shall be advised of its right to ap- first. For purposes of this section, the peal in accordance with §§ 103.1 and date of deposit shall be the date shown 103.3 of this chapter. on the Receipt of Immigration Officer [50 FR 2040, Jan. 15, 1985] for the cash received as security on an immigration bond. The date of with- § 292a.5 Removal of an organization drawal shall be the date upon which from list. the interest is certified to the Treasury If the district director or officer-in- Department for payment. The date of charge is satisfied that an organization breach shall be the date as of which the listed under § 292a.1 does not meet the immigration bond was concluded to qualifications as set out in § 292a.2, he/ have been breached as shown on Form she shall notify the organization con- I–323, Notice—Immigration Bond cerned, in writing, of his/her intention Breached. In counting the number of to remove its name from the Service days for which interest shall be com- list. The organization may submit an puted, the day on which the cash was answer within 30 days from the date deposited, or the day which cash depos- the notice was served. If, after consid- ited in the postal savings system ering the answer by the organization, ceased to accrue interest, shall not be

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counted; however, the day of with- Example: 3% on $500 for 93 days: drawal or the day of breach of the im- Days migration bond shall be counted. Inter- est shall be computed at the rate deter- 90 $7.3972 602 mined by the Secretary of the Treasury 3 .2465 7534 and set forth in § 293.2. The simple in- Interest on $1,000 ...... 93 $7.6438 3554 terest table in § 293.3 shall be utilized in Interest on $500 ...... $3.82 the computation of interest under this part. § 293.4 Payment of interest. Interest shall be paid only at time of § 293.2 Interest rate. disposition of principal cash when the The Secretary of the Treasury has immigration bond has been withdrawn determined that effective from date of or declared breached. deposit occurring after April 27, 1966, the interest rate shall be 3 per centum PART 299—IMMIGRATION FORMS per annum. Sec. § 293.3 Simple interest table. 299.1 Prescribed forms. Following is a simple interest table 299.2 Distribution of Service forms. from which computation of interest at 299.3 Forms available from the Super- intendent of Documents. 3 per centum per annum on a principal 299.4 Reproduction of Public Use Forms by of $1,000 for a fractional 365-day year public and private entities. may be derived by addition only. The 299.5 Display of control numbers. interest is stated in the form of a deci- AUTHORITY: 8 U.S.C. 1101, 1103; 8 CFR part mal fraction of $1. 2. Days Interest § 299.1 Prescribed forms. 1 ...... 0821 9178 The forms listed below are hereby 2 ...... 1643 8356 3 ...... 2465 7534 prescribed for use in compliance with 4 ...... 3287 6712 the provisions of subchapter A and B of 5 ...... 4109 5890 this chapter. To the maximum extent 6 ...... 4931 5068 feasible, the forms used should bear the 7 ...... 5753 4246 8 ...... 6575 3424 edition date shown or a subsequent edi- 9 ...... 7397 2602 tion date.

Form No. Edition date Title

AR±11 ...... 10±01±85 ...... Alien's Change of Address Card. CDC 4.222±1 ...... 10±84 ...... Statement in Support of Application for Waiver of Excludability (Under section 212(a)(1), Immigration and Nationality Act). CDC 42.10 ...... 04±81 ...... Interstate Reciprocal Notification of Disease. CDC 75.17 ...... 04±82 ...... Report on Alien with Tuberculosis not Considered Active. CDC 75.18 ...... 04±82 ...... Report on Alien with Tuberculosis Waiver. EOIR±40 ...... 11±94 ...... Application for Suspension of Deportation. FD±258 ...... 12±29±82 ...... Applicant Fingerprint Card. G±28 ...... 10±25±79 ...... Notice of Entry of Appearance as Attorney or Representative. G±56 ...... 05±01±83 ...... General Call-in-Letter. G±296 ...... 09±12±58 ...... Report of Violation. G±297 ...... 05±28±70 ...... Order to Seize Aircraft. G±298 ...... 09±12±58 ...... Public Notice of Seizure. G±325 ...... 10±01±82 ...... Biographic Information. G±325A ...... 10±01±82 ...... Biographic Information. G±325B ...... 10±01±82 ...... Biographic Information. G±325C ...... 10±01±82 ...... Biographic Information. G±639 ...... 03±21±94 ...... Freedom of Information Act/Privacy Act Request. G±658 ...... 11±01±75 ...... Record of Information Disclosure (Privacy Act). I±9 ...... 11±21±91 ...... Employment Eligibility Verification. I±17 ...... 04±11±91 ...... Petition for Approval of School for Attendance by Nonimmigrant Students. I±17A ...... 05±01±83 ...... Designated School Officials. I±17B ...... 05±01±83 ...... School System Attachment. I±20A±B/I±20ID ...... 04±27±88 ...... Certificate of Eligibility for Nonimmigrant (F±1) Student StatusÐ For Academic and Language Students. I±20M±N/I±20ID ...... 05±03±90 ...... Certificate of Eligibility for Nonimmigrant (M±1) Student StatusÐ For Vocational Students.

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Form No. Edition date Title

I±68 ...... 09±01±84 ...... Canadian Border Boat Landing Permit. I±72 ...... 04±01±83 ...... Form letter for Returning Deficient Applications/Petitions. I±79 ...... 05±15±70 ...... Notice of Intention to Fine Under Immigration and Nationality Act. I±90 ...... 07±28±92 ...... Application to Replace Alien Registration Receipt Card. I±92 ...... 06±01±73 ...... Aircraft/Vessel Report. I±94 ...... 04±15±86 ...... Arrival-Departure Record. I±94W ...... 05±29±91 ...... Nonimmigrant Visa Waiver Arrival/Departure Document. I±95AB ...... 10±01±84 ...... Crewman's Landing Permit. I±102 ...... 06±13±95 ...... Application for Replacement/Initial Nonimmigrant Arrival/Depar- ture Document. I±104 ...... 11±01±84 ...... Alien Address Report Card. I±122 ...... 05±04±79 ...... Notice to Applicant for Admission Detained for Hearing before Immigration Judge. I±129 ...... 12±11±91 ...... Petition for a Nonimmigrant Worker. I±129F ...... 04±11±91 ...... Petition for Alien Fiance(e). I±129S ...... 12±20±91 ...... Nonimmigrant Petition Based on Blanket L Petition. I±130 ...... 04±11±91 ...... Petition for Alien Relative. I±131 ...... 12±10±91 ...... Application for Travel Document. I±134 ...... 12±01±84 ...... Affidavit of Support. I±138 ...... 07±01±83 ...... Subpoena. I±140 ...... 12±02±91 ...... Immigrant Petition for Alien Worker. I±141 ...... 04±21±69 ...... Medical Certificate. I±147 ...... 10±01±83 ...... Notice of Temporary Exclusion. I±171 ...... 03±04±82 ...... Notice of Approval of Relative Immigrant Visa Petition. I±171C ...... 07±01±83 ...... Notice of Approval or Extension of Nonimmigrant Visa Petition of H or L Alien. I±171F ...... 10±14±76 ...... Notice of Approval of Nonimmigrant Visa Petition for Fiance or Fiancee. I±171H ...... 12±15±82 ...... Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petition. I±175 ...... 04±01±75 ...... Application for Nonresident Alien's Canadian Border Crossing Card. I±180 ...... 09±01±81 ...... Notice of Voidance of Form I±186 or Denial of Form I±190. I±181 ...... 03±01±83 ...... Memorandum of Creation of Record of Lawful Permanent Resi- dence. I±185 ...... 01±01±75 ...... Nonresident Alien Canadian Border Crossing Card. I±190 ...... 03±01±75 ...... Application for Nonresident Alien Mexican Border Crossing Card. I±191 ...... 04±11±91 ...... Application for Advance Permission to Return to Unrelinquished Domicile. I±192 ...... 04±11±91 ...... Application for Advance Permission to Enter as Nonimmigrant. I±193 ...... 04±11±91 ...... Application for Waiver of Passport and/or Visa. I±194 ...... 02±01±82 ...... Notice of Approval of Advance Permission to Enter as Non- immigrant (Pursuant to § 212(d)(3) (A) or (B) of the Act). I±202 ...... 11±15±79 ...... Authorization for Removal. I±205 ...... 11±29±79 ...... Warrant of Deportation. I±212 ...... 04±11±91 ...... Application for Permission to Reapply for Admission Into the United States After Deportation or Removal. I±221 ...... 06±12±92 ...... Order to Show Cause and Notice of Hearing. I±243 ...... 09±27±75 ...... Application for Removal. I±246 ...... 01±15±86 ...... Application for Stay of Deportation. I±247 ...... 03±01±83 ...... Immigration DetainerÐNotice of Action. I±259 ...... 10±01±69 ...... Notice to Detain, Deport, Remove, or Present Aliens. I±259C ...... 03±28±91 ...... Notice to CarrierÐAcknowledgement by Carrier of Arrival of Possible Excludable Alien. I±260 ...... 06±01±73 ...... Notice to Take Testimony of Witness. I±284 ...... 12±20±66 ...... Notice to Transportation Line Regarding Deportation and Deten- tion Expenses of Detained Alien. I±286 ...... 06±12±92 ...... Notification to Alien of Conditions of Release of Detention. I±287 ...... 04±10±72 ...... Special Care and Attention for Alien. I±288 ...... 02±20±62 ...... Notice to Transportation Line Regarding Deportation Expenses of Alien Completely Ready for Deportation. I±290A ...... 10±31±79 ...... Notice of Appeal to the Board of Immigration Appeals. I±290B ...... 01±04±91 ...... Notice of Appeal to the Administrative Appeals Unit (AAU). I±290C ...... 01±04±91 ...... Notice of Certification. I±291 ...... 11±01±83 ...... Decision on Application for Status as Permanent Resident. I±292 ...... 10±26±90 ...... Decision. I±296 ...... 12±15±82 ...... Notice to Alien Ordered Excluded by Immigration Judge. I±305 ...... 05±01±76 ...... Receipt of Immigration OfficerÐUnited States Bond or Notes, or Cash, Accepted as Security on Immigration Bond. I±310 ...... 04±16±62 ...... Bond for Payment of Sums and Fines Imposed under Immigra- tion and Nationality Act (Term or Single Entry). I±312 ...... 04±15±76 ...... Designation of Attorney in Fact.

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Form No. Edition date Title

I±320B ...... 09±01±75 ...... Agreement Between Employer of Alien Labor and the United States. I±323 ...... 03±15±77 ...... NoticeÐImmigration Bond Breached. I±327 ...... 02±10±93 ...... Permit to Reenter the United States. I±351 ...... 06±01±74 ...... Bond Riders. I±352 ...... 06±01±84 ...... Immigration Bond. I±356 ...... 09±27±75 ...... Request for Cancellation of Public Charge Bond. I±360 ...... 09±19±91 ...... Petition for Amerasian, Widow(er), or Special Immigrant. I±361 ...... 07±01±84 ...... Affidavit of Financial Support and Intent to Petition for Legal Custody for Pub. L. 97±359 Amerasian. I±365 ...... 07±01±84 ...... Notice of Completion of Preliminary Processing of Petition for Public Law 97±359 Amerasian. I±391 ...... 03±14±77 ...... NoticeÐImmigration Bond Cancelled. I±408 ...... 12±12±91 ...... Application to Pay Off or Discharge Alien Crewman. I±410 ...... 05±01±83 ...... Receipt for Crew List. I±418 ...... 07±01±74 ...... Passenger List-Crew List. I±420 ...... 06±11±92 ...... Agreement (Land-Border) Between Transportation Line and United States. I±421 ...... 06±29±58 ...... Agreement (Overseas) Between Transportation Line and United States. I±425 ...... 03±24±77 ...... Agreement (For Preinspection atll) Between Transportation Line and United States. I±426 ...... 05±01±65 ...... Immediate and Continuous Transit Agreement Between a Trans- portation Line and United States of America (special direct transit procedure). I±444 ...... 04±01±83 ...... Mexican Border Visitors Permit. I±485 ...... 09±09±92 ...... Application to Register Permanent Residence or Adjust Status. I±508 ...... 10±01±80 ...... Waiver of Rights, Privileges, Exemptions, and Immunities. I±508F ...... 06±01±70 ...... Waiver of Rights, Privileges, Exemptions, and Immunities (Under section 247(b) of the Act and under the Convention between the United States of America and the French Repub- lic with respect to Taxes on Income and Property). I±509 ...... 05±31±83 ...... Notice of Proposed Change of Status. I±510 ...... 11±15±82 ...... Guarantee of Payment. I±512 ...... 10±01±82 ...... Authorization for Parole of an Alien into the United States. I±515 ...... 08±02±83 ...... Notice to Student or Exchange Visitor. I±516 ...... 08±01±83 ...... Notice of Approval or Continuation of School Approval. I±517 ...... 08±01±83 ...... Review of School Approval. I±526 ...... 12±02±91 ...... Immigrant Petition by Alien Entrepreneur. I±538 ...... 10±29±91 ...... Certification by Designated School Official. I±539 ...... 12±02±91 ...... Application to Extend/Change Nonimmigrant Status. I±541 ...... 02±06±89 ...... Order of Denial of Application for Extension of Stay or Student Employment or Student Transfer. I±543 ...... 12±01±83 ...... Order of Denial of Application for Change of Nonimmigrant Sta- tus. I±551 ...... 01±31±77 ...... Alien Registration Receipt Card. I±566 ...... 02±11±91 ...... Inter-Agency Record of Individual Requesting Change/Adjust- ment to, or from, A or G Status; or Requesting A or G De- pendent Employment Authorization. I±571 ...... 02±10±93 ...... Refugee Travel Document. I±586 ...... 04±30±77 ...... Nonresident Alien Border Crossing Card. I±589 ...... 11±16±94 ...... Application for Asylum and for Withholding of Deportation. I±590 ...... 11±13±92 ...... Registration for Classification as Refugee. I±594 ...... 11±01±83 ...... Notice to Appear for Adjustment of Status. I±600 ...... 04±11±91 ...... Petition to Classify Orphan as an Immediate Relative. I±600A ...... 04±11±91 ...... Application for Advance Processing of Orphan Petition. I±601 ...... 04±11±91 ...... Application for Waiver of Grounds of Excludability. I±602 ...... 10±01±85 ...... Application by Refugee for Waiver on Grounds of Excludability. I±607 ...... 02±01±72 ...... Order Re Waiver of Excludability Pursuant to Section 212(h), (i) and Permission to Reapply. I±612 ...... 04±11±91 ...... Application for Waiver of the Foreign Residence Requirement of section 212(e) of the Immigration and Nationality Act, as amended. I±613 ...... 03±30±83 ...... Request for United States Information Agency Recommendation section 212(e) Waiver. I±644 ...... 11±01±82 ...... Supplementary Statement for Graduate Medical Trainees. I±688 ...... 01±01±89 ...... Temporary Resident Card. I±688A ...... 05±87 ...... Employment Authorization Card. I±688B ...... 08±07±93 ...... Employment Authorization Card. I±690 ...... 02±14±87 ...... Application for Waiver of Grounds of Excludability under sections 245A or 210 of the Immigration and Nationality Act. I±692 ...... 06±07±89 ...... Notice of Denial, Temporary Resident. I±693 ...... 09±01±87 ...... Medical Examination of Aliens Seeking Adjustment of Status. I±694 ...... 11±09±88 ...... Notice of Appeal of Decision under section 210 or 245A of the Immigration and Nationality Act.

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Form No. Edition date Title

I±695 ...... 02±24±87 ...... Application for Replacement of Form I±688A, Employment Au- thorization Card, or Form I±688, Temporary Residence Card (Under Pub. L. 99±603). I±697A ...... 01±26±90 ...... Change of Address Card for Legalization, Special Agricultural Workers (SAW), and Replenishment Agricultural Workers (RAW). I±698 ...... 11±09±88 ...... Application to Adjust Status from Temporary to Permanent Resi- dent (Under section 245A of Pub. L. 99±603). I±699 ...... 10±20±88 ...... Certificate of Satisfactory Pursuit. I±730 ...... 11±01±85 ...... Refugee/Asylee Relative Petition. I±736 ...... 09±08±88 ...... Guam Visa Waiver Information. I±751 ...... 12±04±91 ...... Petition to Remove Conditions on Residence. I±760 ...... 07±22±87 ...... Agreement Between Transportation Line, Operating Between Foreign Territory and Guam, and United States. I±762 ...... 11±30±87 ...... Citation Pursuant to Section 274A of the Immigration and Na- tionality Act. I±765 ...... 04±25±95 ...... Application for Employment Authorization. I±766 ...... 01±03±96 ...... Employment Authorization Document. I±775 ...... 05±12±94 ...... Visa Waiver Pilot Program Agreement. I±777 ...... 06±16±88 ...... Application for Issuance or Replacement of Northern Mariana Card. I±791 ...... 05±26±88 ...... Visa Waiver Pilot Program Information Form. I±817 ...... 09±10±91 ...... Application for Voluntary Departure under the Family Unity Pro- gram. I±821 ...... 05±22±91 ...... Application for Temporary Protected Status. I±823 ...... 09±10±96 ...... ApplicationÐAlternative Inspection Services. I±824 ...... 10±01±91 ...... Application for Action on an Approved Application or Petition. I±850 ...... 05±21±96 ...... Application for Certification for Designated Fingerprint Services. I±850A ...... 05±21±96 ...... Attestation by Designated Fingerprinting Service Certified to Take Fingerprints. I±851 ...... 04±06±95 ...... Notice of Intent to Issue Final Administrative Deportation Order. I±851A ...... 04±06±95 ...... Final Administrative Deportation Order. I±854 ...... 06±20±95 ...... Inter-Agency Alien Witness and Informant Record. IAP±66 ...... 10±78 ...... Certificate of Eligiblity for Exchange Visitor Status. ICAO ...... International Civil Aviation Organization's General Declaration. MA 7±50 ...... 04±70 ...... Application for Alien Employment Certification. (Part IÐState- ment of Qualifications of Aliens MA 7±50A). (Part IIÐJob Offer for Alien Employment MA 7±50B). OF±157 ...... 02±88 ...... Medical Examination of Applicants for United States Visas. 7507 ...... 03±69 ...... Bureau of Customs' General Declaration.

[59 FR 25556, May 17, 1994; 59 FR 35978, July quest to the Regional Commissioner 14, 1994, as amended at 60 FR 9774, Feb. 22, for the geographic location of the re- 1995; 60 FR 37328, July 20, 1995; 60 FR 43962, quester if such forms have not been Aug. 24, 1995; 60 FR 44271, Aug. 25, 1995; 60 FR 50390, Sept. 29, 1995; 61 FR 28013, June 4, 1996; made available for purchase from the 61 FR 46537, Sept. 4, 1996; 61 FR 47800, Sept. Superintendent of Documents, Wash- 11, 1996; 61 FR 53833, Oct. 16, 1996] ington, DC 20402. (c) Voluntary agencies (VOLAGS) § 299.2 Distribution of Service forms. participating in the Outreach Program The distribution of official Immigra- of the Service who make written re- tion and Naturalization applications, quest to the Regional Commissioner petitions, and related forms is as fol- for the geographic location of the re- lows: quester may be furnished Service forms (a) Any officer or employee of the gratis in the volumes requested. Service may issue official application [43 FR 14304, Apr. 5, 1978, as amended at 45 or petition and related forms to the FR 6777, Jan. 30, 1980; 45 FR 21611, Apr. 2, person for whose use the form is in- 1980] tended or to a person identified as a representative of the intended user in § 299.3 Forms available from Super- the quantity required for filing the ap- intendent of Documents. plication or petition and related forms. The Immigration and Naturalization (b) A small quantity, twenty-five (25) Service forms listed in this section copies, may be issued to organizations may be obtained, upon prepayment, an practitioners who make written re-

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from the Superintendent of Docu- (2) Conform to the officially printed ments, who is authorized to print these forms currently in use with respect to: forms for sale to the public. Prices are (i) Size, set by the Superintendent of Docu- (ii) Wording and language, ments, Government Printing Office, (iii) Arrangement, style and size of and are subject to change without no- type, and tice. A small supply of these forms (iv) Paper specifications. shall be set aside by immigration offi- (b) Requirements for electronic genera- cers for free distribution and official tion. Public or private entities may use. electronically generate forms required for applying for a specific benefit, in GPO Stock No. Price per Form No. (S/N) 100/pad compliance with the immigration and naturalization regulations, at their G±28 ...... 027±002±00218±1 14.00 own expense. This includes forms that G±325A ...... 027±002±00277±6 21.00 G±325B ...... 027±002±00349±7 13.00 have been made available for purchase I±9 ...... 027±002±00417±5 13.00 by the Superintendent of Documents, I±20AB/I±20ID ...... 027±002±00373±0 25.00 as listed in § 299.3 provided that each I±20MN ...... 027±002±00403±5 26.00 I±90 ...... 027±002±00433±7 21.00 form satisfies the following require- I±92 ...... 027±002±00124±9 5.00 ments: I±94 (English) ...... 027±002±00318±7 11.00 (1) An electronic reproduction must I±95AB ...... 027±002±00311±0 27.00 be complete, containing all questions I±129 ...... 027±002±00436±1 1 31.00 I±129F ...... 027±002±00389±6 26.00 which appear on the official form. The I±129S ...... 027±002±00425±6 17.00 wording and punctuation of all data I±130 ...... 027±002±00432±9 32.00 elements and identifying information I±131 ...... 027±002±00424±8 11.00 I±134 ...... 027±002±00315±2 25.00 must match exactly. No data elements I±140 ...... 027±002±00429±9 11.00 may be added or deleted. The sequence I±408 ...... 027±002±00431±1 14.00 and format for each item on the form I±418 ...... 027±002±00320±9 11.00 I±485 ...... 027±002±00434±5 37.00 must be replicated to mirror the au- I±538 ...... 027±002±00435±3 14.00 thorized agency form. Each item must I±539 ...... 027±002±00420±5 14.00 be printed on the same page in the I±693 ...... 027±002±00355±1 43.00 I±698 ...... 027±002±00375±6 18.00 same location. Likewise, multiple-part I±751 ...... 027±002±00422±1 15.00 sets may be printed as single sheets I±765 ...... 027±002±00441±8 49.00 provided that the destination of the I±817 ...... 027±002±00415±9 36.00 carbon copy is clearly identified on the I±824 ...... 027±002±00423±0 10.00 N±400 ...... 027±002±00419±1 17.00 bottom of the form. Private entities must reproduce forms on the same col- 1 Per 50. ored paper that is used on the official [59 FR 25558, May 17, 1994, as amended at 61 form. In the case of the Form I–20 A–B/ FR 47800, Sept. 11, 1996] I–20ID, Certificate of Eligibility for Nonimmigrant (F–1) Student Status— § 299.4 Reproduction of Public Use For Academic and Language Students, Forms by public and private enti- private entities may generate this form ties. in single-page format rather than dou- (a) Duplication requirements. All forms ble-sided format, provided that the stu- required for applying for a specific ben- dent’s name, school, and date of birth efit in compliance with the immigra- is printed in a shaded box on the top of tion and naturalization regulations, in- page 4 of the form, using the same type cluding those which have been made size and font style as the body of the available for purchase by the Super- form. intendent of Documents as listed in (2) The final form must match the de- § 299.3, may be printed or otherwise re- sign, format, and dimensions of the of- produced. Such reproduction must be ficial form. All blocks must remain the by an appropriate duplicating process same size and lines must remain the and at the expense of the public or pri- same length. No variations will be per- vate entity. Forms printed or repro- missible. duced by public or private entities (3) The final form must be approved shall be: for use by the Director, Policy Direc- (1) In black ink or dye that will not tives and Instructions Branch. The fade or ‘‘feather’’ within 20 years, and form should be mailed to the address

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listed in paragraph (e) of this section jected by the Service. Any problems re- for approval. garding the acceptability of a specific (c) The accuracy of electronically electronic version of a particular Serv- generated forms is the responsibility of ice form may be brought to the atten- the private entities. Changes to exist- tion of the Director, Policy Directives ing forms, as announced by the Serv- and Instructions Branch, 425 ‘‘I’’ ice, must be promptly incorporated Street, NW., Room 5307, Washington, into the private entity software pro- DC 20536, telephone number (202) 514– gram application. Deviations from the 3048. aforementioned standards may result in the return or denial of the appli- [59 FR 25558, May 17, 1994, as amended at 61 cant’s application/petition for a par- FR 47801, Sept. 11, 1996] ticular benefit. (d) Electronic printers that provide § 299.5 Display of control numbers. for near-letter-quality documents The following listing includes the should be used to generate electronic Immigration and Naturalization Serv- forms. Dot matrix printers that are ice public use forms and reports which only capable of producing draft quality are cited for use throughout Title 8 of documents should not be used for form the Code of Federal Regulations, Chap- generation, but may be used for the ter I. The information collection reentry of data in a preprinted form quirements contained in this title have where appropriate. been approved by the Office of Manage- (e) Any form with poor print quality ment and Budget (OMB) under the pro- or other defect which renders it illegi- visions of the Paperwork Reduction ble, difficult to read, or displays added Act. The form numbers, titles, and or missing data elements, will be re- OMB control numbers read as follows:

Currently as- INS form No. INS form title signed OMB control No.

AR±11 ...... Alien's Change of Address Card ...... 1115±0003 G±79A ...... Data Relating to Beneficiary of Private Bill ...... 1115±0044 G±146 ...... Nonimmigrant Checkout Letter ...... 1115±0075 G±325 ...... Biographic Information ...... 1115±0066 G±639 ...... Freedom of Information/Privacy Act Request ...... 1115±0087 G±845 ...... Document Verification Request ...... 1115±0122 G±845S ...... Document Verification Request (SAVE) ...... 1115±0122 G±845T ...... Document Verification Request (TVS) ...... 1115±0122 G±884 ...... Request for the Return of Original Document(s) ...... 1115±0162 G±942 ...... Applicant Survey ...... 1115±0188 I±9 ...... Employment Eligibility Verification ...... 1115±0136 I±17 ...... Petition for Approval of School for Attendance by Nonimmigrant Students ...... 1115±0070 I±20A±B/I±20ID ...... Certificate of Eligibility of Nonimmigrant (F±1) Student StatusÐFor Academic 1115±0051 and Language Students. I±20M±N/I±20ID ...... Verification of Eligibility for Nonimmigrant (M±1) Student Status for Vocational 1115±0051 Students. I±43 ...... Baggage and Personal Effects of Detained Alien ...... 1115±0063 I±68 ...... Canadian Border Boat Landing Permit ...... 1115±0065 I±90 ...... Application to Replace Alien Registration Card ...... 1115±0004 I±92 ...... Aircraft/Vessel Report ...... 1115±0078 I±94 ...... Arrival-Depature Report ...... 1115±0077 I±94T ...... Arrival-Departure Record (Transit without VISA) ...... 1115±0139 I±94W ...... Nonimmigrant Visa Waiver ArrivalÐDeparture Document ...... 1115±0148 I±95AB ...... Crewman's Landing Permit ...... 1115±0040 I±102 ...... Application for Replacement/Initial Nonimmigrant ArrivalÐDeparture Document 1115±0079 I±104 ...... Alien Address Report Card ...... 1115±0115 I±129 ...... Petition for a Nonimmigrant Worker ...... 1115±0168 I±129F ...... Petition for Alien Fiance(e) ...... 1115±0071 I±129S ...... Nonimmigrant Petition Based on Blanket L Petition ...... 1115±0128 I±130 ...... Petition for Alien Relative ...... 1115±0054 I±131 ...... Application for Travel Document ...... 1115±0005 I±134 ...... Affidavit of Support ...... 1115±0062 I±140 ...... Immigrant Petition for Alien Worker ...... 1115±0061 I±175 ...... Application for Nonresident Alien's Canadian Border Crossing Card ...... 1115±0047 I±190 ...... Application for Nonresident Alien's Mexican Border Crossing Card ...... 1115±0019 I±191 ...... Application for Advance Permission to Return to Unrelinquished Domicile ...... 1115±0032 I±192 ...... Application for Advance Permission to Enter as Nonimmigrant ...... 1115±0028 I±193 ...... Application for Waiver of Passport and/or Visa ...... 1115±0042

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Currently as- INS form No. INS form title signed OMB control No.

I±212 ...... Application for Permission to Reapply for Admission into the U.S. After Depor- 1115±0099 tation or Removal. I±243 ...... Application for Removal ...... 1115±0020 I±246 ...... Application for Stay of Deportation ...... 1115±0055 I±259C ...... Notice to CarrierÐAcknowledgement by Carrier of Arrival of Possible Exclud- 1115±0172 able Alien. I±356 ...... Request for Cancellation of Public Charge Bond ...... 1115±0046 I±360 ...... Petition for Amerasian, Widow(er), or Special Immigrant ...... 1115±0117 I±361 ...... Affidavit of Financial Support and Intent to Petition for Legal Custody for 1115±0118 Amerasian. I±363 ...... Request to Enforce Affidavit of Financial Support and Intent to Petition for 1115±0116 Legal Custody for Amerasian. I±408 ...... Application to Pay Off or Discharge Alien Crewman ...... 1115±0073 I±418 ...... Passenger List-Crew List ...... 1115±0083 I±485 ...... Application to Register Permanent Resident or Adjust Status ...... 1115±0053 I±508 ...... Waiver of Rights, Privileges, Exemptions, and Immunities ...... 1115±0037 I±510 ...... Guarantee of Payment ...... 1115±0029 I±515 ...... Notice to Student or Exchange Visitor ...... 1115±0068 I±526 ...... Immigrant Petition by Alien Entrepreneur ...... 1115±0081 I±538 ...... Certification by Designated School Official ...... 1115±0060 I±539 ...... Application to Extend/Change Nonimmigrant Status ...... 1115±0093 I±566 ...... Inter-Agency Record of Individual Requesting Change/Adjustment to or from, A 1115±0090 or G Status, or Requesting A and G Dependent Employment Authorization. I±589 ...... Application for Asylum and for Withholding of Deportation ...... 1115±0086 I±590 ...... Registration for Classification as Refugee (section 207, I&N Act) ...... 1115±0057 I±600 ...... Petition to Classify Orphan as an Immediate Relative ...... 1115±0049 I±600A ...... Application for Advance Processing or Orphan Petition ...... 1115±0049 I±601 ...... Application for Waiver of Grounds of Excludability ...... 1115±0048 I±602 ...... Application by Refugee for Waiver of Grounds of Excludability ...... 1115±0098 I±612 ...... Application for Waiver of the Foreign Residence Requirement ...... 1115±0059 I±643 ...... Health and Human Services Statistical Data for Refugee Asylee Adjusting Sta- 1115±0104 tus. I±644 ...... Supplementary Statement for Graduate Medical Trainees ...... 1115±0108 I±690 ...... Application for Waiver of Grounds of Excludability ...... 1115±0132 I±693 ...... Medical Examination of Aliens Seeking Adjustment of Status ...... 1115±0134 I±694 ...... Notice of Appeal of Decision ...... 1115±0135 I±695 ...... Application of Temporary Replacement Card ...... 1115±0129 I±697A ...... Changes of Address Card ...... 1115±0130 I±698 ...... Application to Adjust Status from Temporary to Permanent Resident (Under 1115±0155 Section 245A of Pub. L. 99±603). I±699 ...... Certificate of Satisfactory Pursuit ...... 1115±0154 I±730 ...... Refugee/Asylum Relative Petition ...... 1115±0121 I±736 ...... Guam Visa Waiver Information ...... 1115±0141 I±751 ...... Petition to Remove Conditions on Residence ...... 1115±0145 I±760 ...... Guam Visa Waiver Agreement ...... 1115±0140 I±765 ...... Application for Employment Authorization ...... 1115±0163 I±775 ...... Visa Waiver Pilot Program Agreement ...... 1115±0149 I±777 ...... Application for Issuance or Replacement of Northern Mariana Card ...... 1115±0151 I±817 ...... Application for Voluntary Departure under the Family Unity Program ...... 1115±0166 I±821 ...... Application for Temporary Protected Status ...... 1115±0170 I±823 ...... ApplicationÐAlternative Inspection Services ...... 1115±0174 I±824 ...... Application for Action on an Approved Application or Petition ...... 1115±0176 I±829 ...... Petition by Entrepreneur to Remove Conditions ...... 1115±0190 I±833 ...... INSPASS Application ...... 1115±0179 I±847 ...... Report of Complaint ...... 1115±0191 I±850 ...... Application for Certification for Designated Fingerprinting Services ...... 1115±0193 I±850A ...... Attestation by Designated Fingerprinting Service Certified to Take Fingerprints 1115±0194 I±854 ...... Inter-Agency Alien Witness and Informant Record ...... 1115±0196 I±855 ...... ABC Change of Address Form ...... 1115±0197 M±398 ...... Systematic Alien Verification for Entitlements User Satisfaction Survey ...... 1115±0185 N±4 ...... Monthly ReportÐNaturalization Papers Forwarded ...... 1115±0189 N±14A ...... Arrival Information ...... 1115±0082 N±25 ...... Request for Verification of Naturalization ...... 1115±0007 N±300 ...... Application to File Declaration of Intention ...... 1115±0008 N±336 ...... Request for Hearing on a Decision in Naturalization Procedures under Section 1115±0180 336 of the Act. N±400 ...... Application for Naturalization ...... 1115±0009 N±422 ...... Form letter re: Information from Selective Service File ...... 1115±0011 N±426 ...... Request for Certification of Military or Naval Service ...... 1115±0022 N±445 ...... Notice of Naturalization Oath Ceremony ...... 1115±0052 N±455 ...... Application for Transfer of Petition for Naturalization ...... 1115±0035 N±470 ...... Application to Preserve Residence for Naturalization Purpose ...... 1115±0014

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Currently as- INS form No. INS form title signed OMB control No.

N±565 ...... Application for Replacement Naturalization/Citizenship Document ...... 1115±0015 N±600 ...... Application for Certification of Citizenship ...... 1115±0018 N±643 ...... Application for Certificate of Citizenship in Behalf of an Adopted Child ...... 1115±0152 N±644 ...... Application for Posthumous Citizenship ...... 1115±0173 User Fee ...... 1115±0142 Judicial Recommendations Against Deportation, Controlled Substance Viola- 1115±0158 tions. Dedicated Commuter Lane Usage Survey ...... 1115±0181 Guidelines on Producing Master Exhibits for Asylum Application ...... 1115±0182 The Immigration and Naturalization Service is Soliciting Proposals from Inter- 1115±0183 ested Parties to Participate in Pilot Immigration Program (Notice). Emergency Federal Law Enforcement Assistance ...... 1115±0184 Nonimmigrant Classes; NATO±1, 2, 3, 4, 5, 6, and 7; Control of Employment of 1115±0187 Aliens. Telephone Verification System (TVS) Pilot Phase II ...... 1115±0192 Generic Clearance of Customer Service Surveys ...... 1115±0195

[59 FR 25559, May 17, 1994; 59 FR 35978, July 14, 1994, as amended at 59 FR 62303, Dec. 5, 1994; 60 FR 44271, Aug. 25, 1995; 60 FR 50390, Sept. 29, 1995; 61 FR 28013, June 4, 1996; 61 FR 47801, Sept. 11, 1996; 61 FR 53833, Oct. 16, 1996]

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