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Policy Manual

The USCIS Policy Manual is the agency’s centralized online repository for USCIS’ immigration policies. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories.

 

About the Policy Manual

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

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

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

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

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Thursday, December 12, 2019
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Volume 1 - General Policies and Procedures

Part A - Public Services

Chapter 1 - Purpose and Background

A. Purpose

USCIS is the government agency that administers lawful immigration to the United States. USCIS has nearly 20,000 government employees and contractors working at more than 200 offices around the world. USCIS ensures its employees have the knowledge and tools needed to administer the lawful immigration system with professionalism. USCIS provides accessible, reliable, and accurate guidance and information about its public services.

This part provides guidance on USCIS public services, privacy, online tools, and other general administration topics.

B. Background

On March 1, 2003, USCIS assumed responsibility for the immigration service functions of the federal government. The Homeland Security Act of 2002 dismantled the Immigration and Naturalization Service (INS) and separated the agency into three components within the Department of Homeland Security (DHS). [1]

The Homeland Security Act created USCIS to enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications. The law also formed Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to oversee immigration enforcement and border security.

USCIS benefits from a legacy of more than 100 years of federal immigration and naturalization administration. [2] The Agency History page on USCIS’ website provides information about the agency’s history, presents research from the History Office’s historians, and makes selected historical documents available electronically.

C. Mission Statement

USCIS administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values. [3]

D. Legal Authorities

  • Homeland Security Act of 2002, Pub. L. 107–296 (PDF) [4] – Dismantled the INS and created USCIS to enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications

  • Privacy Act of 1974, 5 U.S.C. 552a (PDF), as amended [5] – Establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about persons that is maintained in systems of records by federal agencies

  • Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112 (PDF) [6] – Ensuring persons with a disability are not excluded from participation in or subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any federal agency

Footnotes


1. [^] See Homeland Security Act of 2002, Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).

2. [^] See the Organizational Timeline page on USCIS’ website.

3. [^] See the About Us page on USCIS’ website.

4. [^] See Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).

5. [^] See Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974).

6. [^] See Section 504 of Pub. L. 93-112 (PDF), 87 Stat. 355, 394 (September 26, 1973).

Chapter 2 - Web-Based Information

A. Website

The USCIS website (uscis.gov) provides the public with access to current information about USCIS’ work, as well as current news releases, alerts, and other updates.

The USCIS website provides the following:

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

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

  • The latest news and policy updates, including progress in support of Executive Orders;

  • Information on outreach events and efforts; and

  • Information on ways to contact USCIS. [1]

USCIS designed the website to accommodate easy navigation to highly trafficked pages directly from the home page, as well as a logical structure and search capability for easy access to all other pages.

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

  • myUSCIS – Allows stakeholders to explore immigration options, create an online USCIS account, locate a physician to complete medical exams, practice the civics test, and complete other tasks online

  • Citizenship Resource Center – Hosts information and resources designed to assist prospective citizens

  • USCIS Policy Manual – The agency’s centralized online repository for USCIS’ immigration policies [2]

  • InfoPass – System used by USCIS Contact Center for scheduling in-person services at domestic field offices on behalf of benefit requestors and other interested parties.

USCIS makes every effort to provide complete and accurate information on its website. USCIS does its best to update information and correct errors brought to its attention as soon as possible. Both the English language and Spanish language pages are updated at the same time, as appropriate.

B. Social Media

Social media is an informal means of communication that also connects benefit requestors and other interested parties with core information and services on the USCIS website. In this way, social media complements the USCIS website and increases USCIS’ ability to communicate with the public.

USCIS’ social media presence includes:

  • Twitter (Main and for E-Verify) – for concise information and news, usually accompanied by links back to uscis.gov

  • Facebook – for information and news, usually accompanied by links back to uscis.gov

  • YouTube – for videos

  • Instagram – for photos and informational graphics

The USCIS Office of Public Affairs (OPA) manages all USCIS social media accounts, working with various USCIS leadership and other offices to develop content. USCIS’ posts are visible to anyone with internet access.

USCIS generally uses social media to make information and services widely available to the general public, to promote transparency and accountability, and to help those seeking information or services from USCIS. USCIS posts information only after it has been appropriately approved and vetted by OPA. Only USCIS employees acting in their official capacity are authorized to post to USCIS social media sites.

Comments on USCIS’ social media channels are visible to the public. To protect their privacy, commenters should not include full names, phone numbers, email addresses, Social Security numbers, case numbers, or any other private information in comments.

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

Use of each social media site is governed by that site’s privacy policy. [3]

Footnotes


1. [^] See the Contact Us page on USCIS’ website.

2. [^] The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories.

3. [^] See the USCIS website for information on Social Media Policy.

Chapter 3 - Forms of Assistance

A. In-Person

1. Local Field Office

Persons with case-specific inquiries who have tried using the online tools and have not been able to attain the information they are looking for may call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). In-person appointments at Field Offices are reserved for critical services that require a person’s physical presence in the office to resolve the issue.

2. Community Outreach

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

The topics of community outreach programs are varied. Information on past and future outreach events can be found on the USCIS website. The website provides a list of future engagements and instructions on how to register to attend. Many events also have call-in numbers for those unable to attend in person. The website also contains notes and supporting documents from previous engagements.

B. Online

1. USCIS Online Account

USCIS online accounts allow applicants, petitioners, and representatives to access personalized, real-time information related to their individual case 24 hours a day through any internet-connected device. Persons can also communicate directly with the USCIS Contact Center through the secure messaging function to receive email responses to their case-specific inquiries. This is the easiest and most comprehensive way to communicate with USCIS regarding case-specific issues.

2. Online Messages

Benefit requestors can send messages and inquiries directly to the USCIS Contact Center, without an online account, and receive an email or phone response within 24 to 48 hours. Since these messages are outside of USCIS’ secure online account experience, Contact Center staff are limited from sharing case-specific information to ensure the privacy of benefit requestors. The USCIS online account is the preferred method of contacting the agency for easy, timely, and effective responses to case-specific inquiries.

3. Emma and Live Web Chat

Emma is the USCIS Virtual Assistant. Emma can provide immediate responses to non-case-specific questions about immigration services and benefits, guide users through our comprehensive website, and connect benefit requestors and other interested parties to a live agent through web chat for more in-depth topics and questions.

4. Email

USCIS offices may provide designated email boxes for case-specific inquiries about a pending or adjudicated petition or application. Before submitting an inquiry, the person inquiring should review all available information listed on the USCIS Contact US web page to ensure that the inquiry is properly routed. 

USCIS officers should use caution when responding to email inquiries requesting case-specific information, as issues of privacy and identity may arise. [1]

C. Telephone

1. USCIS Contact Center

For the convenience of benefit requestors and other interested parties located within the United States, USCIS provides a toll-free phone number answered by the USCIS Contact Center available 24 hours a day, 7 days a week. Automated information accessed through a menu of interactive options is always available. For information on when live help through a USCIS representative is available, see the USCIS Contact Center web page.

The toll-free phone number for the USCIS Contact Center is 1-800-375-5283 (TTY for the deaf, hard of hearing, or person with a speech disability: 1-800-767-1833).

Multi-Tiered Structure

The USCIS Contact Center provides escalating levels of service to handle inquiries of increasing complexity, primarily through an Interactive Voice Response (IVR) system and a multi-tiered level of live assistance.

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

Tier 1 – Tier 1 is the first level of live assistance. Tier 1 staff members, who are contract employees, provide basic case-specific and general non-case-specific information. These responses follow a formatted script.

Tier 2 – If Tier 1 is unable to completely resolve an inquiry, the call may be transferred to the Tier 2 level of live assistance to be answered by a USCIS officer.

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

If an inquiry involves a case physically located at a domestic USCIS field office or service center, the USCIS Contact Center may create a service request. The service request is automatically routed to the USCIS office that can best resolve the inquiry. If an inquiry involves a case physically located at an international USCIS field office, the USCIS Contact Center may provide the caller with that office’s contact information and refer the inquiry, as appropriate.

2. International Service

Persons located outside of the United States should contact the international office with jurisdiction over their place of residence. USCIS provides a complete listing of international jurisdictions and field offices and their phone numbers on the International Immigration Offices page of the USCIS website.

3. Military Help Line

USCIS provides a toll-free military help line exclusively for members of the military and their families. For information on when USCIS military help line staff are available to answer calls, see the Military Help Line web page. After-hours callers will receive an email address they can use to contact USCIS for assistance.

The toll-free phone number for the military help line is 1-877-CIS-4MIL (1-877-247-4645) (TTY: for the deaf, hard of hearing, or person with a speech disability: 1-800-767-1833).

4. Premium Processing Line

USCIS provides a toll-free phone number exclusively for inquiries about petitions filed under the Premium Processing program. [2] The toll-free phone number for the Premium Processing Line is 1-866-315-5718.

5. Intercountry Adoptions Line

USCIS provides a toll-free phone number exclusively for inquiries about domestically filed applications and petitions under the Orphan and Hague intercountry adoption programs. [3] The toll-free phone number for the Intercountry Adoptions Line is 1-877-424-8374.

D. Traditional Mail or Facsimile

1. Traditional Mail

General mailing addresses are publicly available to allow the submission of applications and petitions, responses to requests for evidence, or service requests in a hard copy format. [4] Dedicated mailing addresses are available, as appropriate, to aid specific USCIS processes.

Mailing addresses are available at the Find a USCIS Office page on the USCIS website.

2. Facsimile (Fax)

USCIS does not provide general delivery facsimile (fax) numbers. While USCIS does not publish dedicated fax numbers, USCIS offices have the discretion to provide a fax number when appropriate. For example, an officer may provide a fax number for the purpose of submitting documentation electronically to aid in the efficient resolution of a case or as a method to expedite delivery of requested documents or information. Documents should not be submitted by fax unless specifically requested by a USCIS employee.

Footnotes


1. [^] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].

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

3. [^] See the USCIS website for additional adoption-related contact information and more details about Orphan or Hague Process.

4. [^] A service request is a tool that allows stakeholders to place an inquiry with USCIS for certain applications, petitions, and services. Service requests may also be submitted through the USCIS Contact Center or online. See Chapter 4, Service Request Management Tool [1 USCIS-PM A.4].

Chapter 4 - Service Request Management Tool

A. Generating Service Requests

1. USCIS-Generated

The Service Request Management Tool (SRMT) provides USCIS staff the ability to record and transfer unresolved service requests by benefit requestors and other interested parties to the appropriate USCIS service center, domestic USCIS field office, or USCIS asylum office where the application or petition is pending a decision or was adjudicated.

If an inquiry received through a call to the USCIS Contact Center cannot be resolved during the call, and the inquiry warrants creation of a service request, USCIS Contact Center staff will create a service request. Although the majority of service requests are created by staff at the USCIS Contact Center, officers in other locations may also create service requests. Using the SRMT to create a service request allows the person inquiring to receive a response without having to call the USCIS Contact Center again or return to a USCIS office in most instances.

2. Self-Generated

By using an online portal, a person may create a service request in the following categories:

  • Change of address (COA) request (unless filing as a Violence Against Women Act (VAWA), T nonimmigrant, or U nonimmigrant applicant or petitioner); [1]

  • Request regarding a notice, card, or other document that was not received;

  • Request regarding a case outside normal processing time;

  • Request for accommodations; [2] or

  • Request for correction of a typographic error.

Benefit requestors may also submit a service request by mailing in a hard copy to a domestic USCIS field office. [3]

B. Responding to Service Requests

1. Timely Response

The USCIS office receiving a service request should take the necessary steps to communicate directly with the benefit requestor about the inquiry or timely relocate the inquiry to another office or organization when appropriate.

USCIS categorizes a service request based upon the urgency and request type, and assigns a target completion date based on the category. USCIS completes requests within each category on a first-in, first-out basis. In general, the goal for resolution of service requests is 15 calendar days from the date of creation.

2. Prioritized Requests

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

Change of Address

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

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

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

USCIS does not accept COA requests on a VAWA, T nonimmigrant, or U nonimmigrant-related application or petition that are received through an SRMT. A hard-copy, signed COA request submitted through traditional mail is required. Offices should respond to VAWA, T nonimmigrant, and U nonimmigrant COA requests using the standard language. [4]

Expedite Requests [5]

Expedite service requests are self-identified as urgent. The person requesting expedited service may be required to submit evidence to the office processing their case to support the expedite request.

Reasonable Accommodation [6]

Reasonable accommodation service requests must be responded to in accordance with the disability accommodations policy.

Military Referral

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

Footnotes


1. [^] For information on COA in VAWA, T, U, see Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)].

2. [^] See Chapter 6, Disability Accommodation Requests [1 USCIS-PM A.6].

3. [^] See Chapter 3, Forms of Assistance, Section D, Traditional Mail or Facsimile [1 USCIS-PM A.3(D)].

4. [^] See Section E, VAWA, T, and U Cases, Subsection 3, USCIS Assistance [1 USCIS-PM A.7(E)(3)].

5. [^] Expedite requests are distinct from premium processing. For information on expedite requests and premium processing, see Chapter 5, Requests to Expedite Applications or Petitions [1 USCIS-PM A.5].

6. [^] See Chapter 6, Disability Accommodation Requests [1 USCIS-PM A.6].

Chapter 5 - Requests to Expedite Applications or Petitions

Benefit requestors may request USCIS to expedite the adjudication of their applications or petitions. USCIS considers all expedite requests on a case-by-case basis and generally requires documentation to support such requests. The decision to grant or deny an expedite request is within the sole discretion of USCIS.

Expedite Criteria

USCIS does not consider expedite requests for petitions and applications that have Premium Processing Service available.

USCIS may consider expediting a benefit request if it meets one or more of the following criteria:

  • Severe financial loss to a company [1] or person, [2] provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to file the benefit request or the request to expedite in a reasonable time frame; or (2) to respond to any requests for additional evidence in a reasonably timely manner;

  • Urgent humanitarian reasons;

  • Compelling U.S. Government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or

  • Clear USCIS error.

Not every circumstance that fits under one of these categories will result in expedited treatment.

To increase efficiency in the review and processing of expedite requests, USCIS is not required to provide justification and is not required to respond regarding decisions on expedite requests.

This policy applies to all expedite requests filed on or after May 10, 2019, the effective date of this policy. USCIS reviews expedite requests filed before May 10, 2019 under the prior policy in effect.

For more information on how to make an expedite request, see the How to Make an Expedite Request web page.

Footnotes


1. [^] Severe financial loss to a company means the company would be at risk of failing.

2. [^] The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment. 

Chapter 6 - Disability Accommodation Requests

A. Background

USCIS accepts requests for accommodations from benefit requestors, other interested parties, and other persons with disabilities who use USCIS services and access USCIS facilities. Accommodation requests may be made in advance for instances that include, but are not limited to:

  • An interview with an officer;

  • an oath ceremony; or

  • A USCIS-sponsored public event.

Accommodations ensure compliance with Section 504 of the Rehabilitation Act of 1973, [1] which states that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency.” [2]

B. Reasonable Accommodation

The essential feature of an accommodation is that it allows the person with a disability to participate in the process or activity. While USCIS is not required to make major modifications that would result in a fundamental change to the processes or cause an undue burden for the agency, USCIS makes every effort to provide accommodations to persons with disabilities. Reasonable accommodations vary, depending on the situation and the person’s disability.

Benefit requestors must satisfy all of the legal requirements to receive an immigration benefit; however, USCIS must provide reasonable accommodations to persons with disabilities to afford them the opportunity to meet those requirements.

Examples of accommodations include, but are not limited to:

  • Those unable to use their hands may be permitted to take a test orally rather than in writing;

  • Those who are deaf or hard of hearing may be provided with a sign language interpreter for a USCIS-sponsored event; [3]

  • Those unable to speak may be allowed to respond to questions in an agreed-upon nonverbal manner; [4]

  • Those unable to travel to a designated USCIS location for an interview due to a disabling condition may be interviewed at their home or a medical facility.

C. Requesting Accommodation

1. How to Make a Disability Accommodation Request

To request disability accommodation for any phase of the application process, benefit requestors, other interested parties, and other persons with disabilities who use USCIS services and access USCIS facilities, should generally submit the request online using the Disability Accommodations for Appointments tool. [5] Requestors should submit accommodation requests to USCIS as soon as they are aware of the need for an accommodation for a particular event. The more advance notice USCIS has, the more likely it will be able to make arrangements for the accommodation request. [6]

2. USCIS Points-of-Contact

To ensure accountability, each field office, application support center (ASC), or asylum office must designate at least one employee to be responsible for handling accommodation requests. All employees should be aware of the procedures for handling such requests.

If a requestor contacts the field office, ASC, or asylum office directly to request a disability accommodation for an interview, the office may enter a service request into the Service Request Management Tool (SRMT) to work with the requestor to respond to the request, and mark the request as fulfilled when it is complete so that the request and the response are recorded.

Offices are encouraged to provide reasonable accommodation requests made by walk-ins whenever practical. If the accommodation is not available, the office should inform the requestor that the office is not able to provide the accommodation at that time, but that arrangements can be made to provide the accommodation for a future appointment or event.

3. USCIS Review

USCIS evaluates each request for a reasonable accommodation on a case-by-case basis.  The Public Disability Access Coordinator must generally concur on any alternative accommodation offered or any accommodation denial before the office communicates either action to the requestor.

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

4. Review Timeframe

In general, the affected USCIS office determines whether it may reasonably comply with the accommodation request within 7 calendar days of receiving the request, unless unusual circumstances exist.

If an accommodation is warranted, it should be provided on the date and time of the scheduled event; rescheduling should be avoided, if possible. If an accommodation cannot be provided for the originally scheduled event, the requestor should be notified as soon as possible. Any rescheduling should occur within a reasonable period of time.

5. Reconsideration of Denied Request

To request a reconsideration of a denial of a disability accommodation request, the requestor should call the USCIS Contact Center and provide any new information they have in support of their request. Upon receiving the request, the relevant office must review the prior request and any additional information provided. The office should contact the requestor if additional information is needed.

Generally, all affirmed denials must be approved by the Public Disability Access Coordinator, the field office director, ASC manager, or asylum office director, whichever applies.

Footnotes


1. [^] See Pub. L. 93-112 (PDF) (September 26, 1973).

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

3. [^] This applies to any member of the public who wants to attend the event, such as a naturalization ceremony or an outreach engagement.

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

5. [^] Certain categories of applicants, such as asylum and NACARA 203 applicants, cannot submit their request online. These applicants should call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). For additional instructions on how to submit a disability accommodation request, see the Requesting Accommodations for Disabilities web page.

6. [^] For more information on service requests, see Chapter 4, Service Request Management Tool [1 USCIS-PM A.4]. For information on handling disability accommodations related to asylum cases, see Chapter 7, Privacy and Confidentiality, Section F, Asylees and Refugees, Subsection 3, USCIS Assistance [1 USCIS-PM A.7(F)].

Chapter 7 - Privacy and Confidentiality

A. Privacy Act of 1974

The Privacy Act provides that federal agencies must protect against the unauthorized disclosure of personally identifiable information (PII) that it collects, disseminates, uses, or maintains. [1] The Privacy Act requires that personal information belonging to U.S. citizens and lawful permanent residents (LPRs) be protected from unauthorized disclosure. Violations of these requirements may result in civil and criminal penalties.

B. Fair Information Practice Principles

DHS treats all persons, regardless of immigration status, consistent with the Fair Information Practice Principles (FIPPs). [2] The FIPPs are a set of eight principles that are rooted in the tenets of the Privacy Act of 1974. The principles are:

  • Transparency;

  • Individual participation;

  • Purpose specification;

  • Data minimization;

  • Use limitation;

  • Data quality and integrity;

  • Security; and

  • Accountability and auditing.

The table below provides a description of each principle.

Fair Information Practice Principles 

DHS Framework for Privacy Policy

Principle

Description

Transparency

DHS provides transparency for how it handles sensitive information through various mechanisms, including Privacy Impact Assessments, System of Records Notices, Privacy Act Statements, and the Freedom of Information Act (FOIA).

Individual Participation

To the extent practicable, DHS should involve persons in the process of using their personal information, and they may always request information about themselves through a FOIA request.

Purpose Specification

DHS’ default action should be to not collect information, and if it is otherwise necessary, DHS should articulate the authorities that permit collection and must clearly state the purposes of the information collection.

Data Minimization

DHS collects only information relevant and necessary to accomplish the purposes specified and special emphasis is placed on reducing the use of sensitive personal information, where practical.

Use Limitation

Any sharing of information outside of the agency must be consistent with the use or purpose originally specified.

Data Quality and Integrity

DHS should, to the extent practical, ensure that PII is accurate, relevant, timely, and complete.

Security

DHS uses appropriate security safeguards against risks such as loss, unauthorized access or use, destruction, modification or unintended or inappropriate disclosure.

Accountability and Auditing

DHS has a number of accountability mechanisms, including reviews of its operations, training for employees, and investigations when appropriate.

C. Personally Identifiable Information

DHS defines PII as any information that permits the identity of a person to be directly or indirectly inferred, including any information which is linked or linkable to that person regardless of whether the person is a U.S. citizen, lawful permanent resident (LPR), visitor to the United States, or a DHS employee or contractor. [3]

Sensitive PII is defined as information which, if lost, compromised, or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience, or unfairness to a person. [4] Some examples of PII that USCIS personnel may encounter include:

  • Name;

  • Address;

  • Date of birth; and

  • Certificate of Naturalization or Citizenship number.

  • Alien number (A-number);

  • Social Security number;

  • Driver’s license or state ID number;

  • Passport number; and

  • Biometric identifiers.

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

  • Collect PII only when authorized;

  • Limit the access and use of PII;

  • Secure PII when not in use;

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

  • Complete and remain current with all privacy, computer security, and special protected class training mandates.

D. Case-Specific Inquiries

USCIS receives a variety of case-specific inquiries, including requests for case status updates, accommodations at interviews, appointment rescheduling, and the resolution of other administrative issues. USCIS personnel are permitted to respond to these inquiries if:

  • The requestor is entitled to receive the requested case-specific information; and

  • Disclosure of the requested case-specific information would not violate Privacy Act requirements or other special protected class confidentiality protections.

1. Verifying Identity of Requestor

USCIS employees must verify the identity of a person inquiring about a specific application or petition. For in-person inquiries, those present must provide a government-issued identity document so that USCIS can verify their identity.

For inquiries not received in person (for example, those received through telephone call or email), it may be difficult to verify the identity of the person making the request through a government-issued document. In these cases, USCIS employees should ask for specific identifying information about the case to ensure that it is appropriate to communicate case-specific information. Examples of identifying information include, but are not limited to: receipt numbers, A-numbers, full names, dates of birth, email addresses, and physical addresses.

If a person is unable to provide identifying information that an applicant, petitioner, or representative should reasonably know, USCIS employees may refuse to respond to the request, or direct the requestor to make an appointment at a local field office or create a myUSCIS account.

2. Disclosure of Information

Except for case types with heightened privacy concerns, [5] USCIS employees may communicate about administrative case matters if the requestor is able to demonstrate his or her identity (for example, by showing government-issued identification during an in-person encounter), or provide verifying information sufficient to demonstrate that communication would be proper. Administrative case matters are generally any issues that do not involve the legal substance or merit of an application or petition.

USCIS employees should not disclose PII when responding to case-specific requests; inquiries can generally be resolved without any discussion of PII. [6] To ensure that a USCIS employee is not disclosing PII, the USCIS employee can always require that the requestor first provide and confirm any PII at issue. In addition, a USCIS employee may take action that results in the resending of cards, notices, or documents containing PII to addresses on file instead of directly disclosing PII to a requestor.

Interested parties may be present at in-person appointments or during telephone calls, with the consent of the applicant or petitioner. Consent is usually implied if both the applicant or petitioner and the third party are present together. However, a USCIS employee may always ask the applicant or petitioner if he or she consents to the third-party’s presence if there is any doubt.

3. Communication with Address on File

USCIS sends written responses and duplicate notices to the addresses on file. Before USCIS is able to send any correspondence to a different address, the person must initiate a service request to update his or her address in USCIS systems. [7] Change of address requests associated with cases subject to confidentiality provisions must follow separate procedures. [8]

4. Third-Party Information

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

5. Third-Party Government Inquiries

USCIS may share records covered under the Privacy Act with written consent from the person or pursuant to a routine use listed in the applicable System of Records Notices. Before sharing information with a government entity, USCIS must determine if the disclosure and use of information is compatible with an existing routine use. Planned uses must also be compatible with the purpose for which DHS originally collected the information. There are, however, enumerated exceptions of the Act that may apply.

Congress

One exception is for disclosures to either house of Congress, or any Congressional committee, subcommittee, joint committee, or subcommittee of a joint committee, if the matter is within its jurisdiction. For all other requests from members of Congress, such as constituent requests, the person whose information is to be released must have provided the member of Congress with a privacy release for USCIS to disclose any information related to that person.

The USCIS Office of Legislative and Intergovernmental Affairs (OLIA)) and designated liaisons handle all inquiries and certain correspondence from Congress to USCIS. Members of Congress, congressional offices, and congressional committees should always go through OLIA when initiating an inquiry. The USCIS and Congress web page on USCIS’ website provides instructions on how members of Congress should interact with and contact USCIS. Non-liaison USCIS employees who are contacted directly with a congressional inquiry should refer it to OLIA so that it may proceed through the proper channels.

Law Enforcement Agencies

Information may be shared with other DHS components under the existing DHS information sharing policy, [9] which considers all DHS components one agency, as long as there is a mission need in line with the requestor’s official duties.

Requests from law enforcement agencies outside of DHS must go through DHS Single Point of Service (SPS) Request for Information (RFI) Management Tool, which requires an account. Account requests can be submitted to DHS-SPS-RFI@hq.dhs.gov.

Before referring any relevant RFI to USCIS, SPS ensures any RFI is consistent with the USCIS mission, has been reviewed and cleared by DHS Counsel and Privacy (as required), and is provided a tracking number. SPS then submits the RFI to Fraud Detection and National Security (FDNS) Intelligence Division (ID). FDNS ID logs official RFIs and takes the necessary steps to process and answer them, including review by USCIS Office of Chief Counsel and Office of Privacy.  

Federal Investigators

If an Office of Personnel Management or DHS Office of Inspector General (OIG) investigator requests information, the USCIS employee should provide the information upon verifying the requestor’s identity. Disclosure of any information needs to meet a routine use or be covered by a data share agreement. USCIS employees and contractors must provide prompt access for auditors, inspectors, investigators, and other personnel authorized by the OIG to any files, records, reports, or other information that may be requested either orally or in writing, and supervisors may not impede this cooperation.

Other Third-Party Inquiries

Prior to responding to a non-congressional third-party case inquiry, a written, signed, and notarized privacy release must be obtained from the applicant or petitioner. Third parties should submit a written authorization and identify the information the person desires to be disclosed. USCIS staff can accept the authorization via facsimile or email as long as the signature on the original is handwritten, and not typed or stamped. [10] The USCIS Office of Privacy will conduct an analysis for disclosure requests for PII on persons not covered by the Privacy Act or the Judicial Redress Act, absent another mechanism that confers a right or process by which a member of the public may access agency records.

E. VAWA, T, and U Cases

1. Confidentiality Provisions

Applicants and recipients of immigration relief under the Violence Against Women Act of 1994 (VAWA) [11] and the Victims of Trafficking and Violence Prevention Act of 2000 [12] (T and U nonimmigrant status for victims of trafficking and other serious crimes) are entitled to special protections with regard to privacy and confidentiality. The governing statute prohibits the unauthorized disclosure of information about petitioners and applicants for, and beneficiaries of VAWA, T, and U-related benefit requests to anyone other than an officer or employee of DHS, the Department of Justice (DOJ), or the Department of State (DOS) who has a need to know. [13]

This confidentiality provision is commonly referred to as “Section 384” because it originally became law under Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, [14] which protects the confidentiality of victims of domestic violence, trafficking, and other crimes who have filed for or have been granted immigration relief.

An unauthorized disclosure of information which relates to a protected person can have significant consequences. USCIS employees must maintain confidentiality in these cases. Victims of domestic violence, victims of trafficking, and victims of crimes can be put at risk, as can their family members, if information is provided to a person who is not authorized.

Anyone who willfully uses, publishes, or permits any information pertaining to such victims to be disclosed in violation of the above-referenced confidentiality provisions may face disciplinary action and be subject to a civil penalty of up to $5,000 for each violation.

2. Scope of Confidentiality

Duration of Confidentiality Requirement

By law, the confidentiality provisions apply while a VAWA, T, or U case is pending and after it is approved, and ends when the application for immigration relief is denied and all opportunities for appeal of the denial have been exhausted.

Disclosure of Information

USCIS cannot release any information relating to a protected person until the identity of the requestor of information is verified and that person’s authorization to know or receive the protected information is verified. Such identity and eligibility verification must be done before responding to any inquiry, expedite request, referral, or other correspondence. Upon identity verification, USCIS can provide protected information directly to the protected person or his or her representative authorized to receive 1367-protected information.

Exceptions for Disclosure of Information

USCIS is permitted to disclose information relating to a protected person in certain, limited circumstances. These circumstances include:

  • Statistical Information – Disclosure of data and statistical information may be made in the manner and circumstances permitted by law. [15]

  • Legitimate Law Enforcement Purposes – Disclosure of information may be made to law enforcement officials to be used solely for a legitimate law enforcement purpose.

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

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

  • Public Benefits – Information may be disclosed to federal, state, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits. [16]

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

  • Communication with Non-Governmental Organizations (NGO) – Government entities adjudicating applications for relief [17] and government personnel carrying out mandated duties under the Immigration and Nationality Act (INA) [18] may, with the prior written consent of the alien involved, communicate with nonprofit NGO victims’ service providers for the sole purpose of assisting victims in obtaining victim services. Agencies receiving referrals are bound by the confidentiality provisions.

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

  • To sworn officers or employees of the Department of State or Department of Justice, for legitimate Department, bureau, or agency purposes.

3. USCIS Assistance

USCIS employees must ensure confidentiality is maintained when an applicant, petitioner, or beneficiary of certain victim-based benefits requests assistance.

Change of Address

Applicants with VAWA, T, or U-related cases can request a change of address by submitting an Alien’s Change of Address Card (Form AR-11) with an original signature to the Vermont Service Center (VSC) by mail.

If the requestor previously filed for a waiver of the I-751 joint filing requirement because of abuse, the requestor should file a Form AR-11​ with an original signature with the USCIS office assigned to work the Form I-751. The requestor can find the appropriate USCIS office by referring to the receipt number issued in response to the Form I-751 filing. [19]

An applicant may also appear in person at a USCIS field office to request a change of address, by calling the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833) to request an in-person appointment. The applicant’s identity must be verified before making the requested change. If the case is at the VSC or the Nebraska Service Center (NSC), the field office must also notify the VSC or NSC of the change of address for VAWA, T, and U cases. 

Telephonic Inquiries

The identity of the person inquiring about a confidential case must be verified and that person’s eligibility to receive information must also be verified. Such verification cannot be made telephonically.

F. Asylees and Refugees

1. Confidentiality Provisions

Federal regulations generally prohibit the disclosure to third parties of information contained in or pertaining to asylum applications, credible fear determinations, and reasonable fear determinations. [20] This includes information contained in the legacy Refugee Asylum and Parole System (RAPS) or the legacy Asylum Pre-Screening System (APSS), and Global System (the 2018 replacement for RAPS/APSS) or related information as displayed in CIS2 and PCQS, except under certain limited circumstances. As a matter of policy, the confidentiality protections in these regulations are extended to Registration for Classification as Refugee (Form I-590), Refugee/Asylee Relative Petitions (Form I-730), and Applications for Suspension of Deportation or Special Rule Cancellation pursuant to NACARA (Form I-881).

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

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

2. Breach of Confidentiality

Confidentiality is breached when the unauthorized disclosure of information contained in or pertaining to, these protected classes allows the third party to link the identity of the applicant to:

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

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

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

The same principles generally govern the disclosure of information related to credible fear and reasonable fear determinations, and applications for withholding or deferral of removal under Article 3 of the Convention Against Torture, which are encompassed within the Application for Asylum and for Withholding of Removal (Form I-589). As a matter of policy, USCIS extends the regulatory safeguards to include claims under the Safe Third Country Agreement, applications for suspension of deportation, special rule cancellation of removal under NACARA 203, refugee case information, as well as refugee and asylee relative information.

Disclosures may only be made to U.S. government officials or employees and U.S. federal or state courts where there is a demonstrated need-to-know related to certain administrative, law enforcement, and civil actions. Any other disclosure requires the written consent of the claimant or the express permission of the Secretary of DHS.

3. USCIS Assistance

USCIS employees must not disclose information contained in, or pertaining to, any asylum or refugee application or claim to any third party without the written consent of the applicant, except as permitted by regulation or at the discretion of the Secretary of DHS. [21] 

This includes neither confirming nor denying that a particular person filed a protection claim by submitting any of the following:

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

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

  • A Refugee/Asylee Relative Petition (From I-730);

  • A Request for a Safe Third Country Agreement Determination;

  • A Request for a Credible Fear Determination;

  • A Request for a Reasonable Fear Determination; and

  • An Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA) (Form I-881)).

USCIS employees should respond to inquiries related to Form I-589, Form I-881, requests for information pertaining to the Safe Third Country Agreement, credible fear and reasonable fear processes, Form I-590, and Form I-730 in different ways, depending on the inquiry:

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

Tier 2 staff members may use the Service Request Management Tool (SRMT) to record and transfer requests to the asylum office with jurisdiction over the pending application. The asylum office then contacts the applicant to arrange for disability accommodation at the interview. While officers must not confirm or deny the existence of a pending protection claim or NACARA 203 application, those making disability accommodation requests for upcoming asylum interviews should be told that the request is being recorded and will be forwarded to the appropriate office for follow-up.

Change of Address Request

Tier 2 staff members may create a service request and submit it to the asylum office or service center with jurisdiction over the pending Form I-589, Form I-881, or Form I-730 petition. The office then fulfills the service request. While staff members must not confirm or deny the existence of a pending protection claim, those making address change requests should be told that the request is being recorded and will be forwarded to the appropriate office.

USCIS Contact Center Status Inquiries for Form I-589, Form I-881, and Form I-730

USCIS Contact Center personnel may not respond to any status inquiries, and may not confirm or deny the existence of an application or petition. Instead, USCIS Contact Center personnel should direct the caller to the Case Status Online tool. If the caller needs further assistance than the Case Status Online tool can provide, USCIS Contact Center personnel should direct the caller to the local office with jurisdiction over the application. For information on office-specific in-person appointment requirement, see the Asylum Office Locator tool. The office with jurisdiction over the application must respond to the inquiry.

USCIS Contact Center Status Inquiries for Form I-590 Applications

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

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

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

General Inquiries

USCIS employees may respond to general questions about the asylum program, the U.S. Refugee Admission Program (USRAP), and credible and reasonable fear screenings. [22] However, for all specific case status questions relating to I-589 applications or I-730 petitions, the inquirers must be directed to contact the local asylum office or service center with jurisdiction over the application. For specific case status questions relating to I-590 refugee applications, the inquiry must be referred to RAD for response.

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

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

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

G. Temporary Protected Status

1. Confidentiality Provisions

Like refugee and asylum cases, information pertaining to Temporary Protected Status (TPS) cases may not be disclosed to certain third parties because unauthorized disclosure of information may place the applicant or the applicant’s family at risk. [23]

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

  • The TPS applicant;

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

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

  • Any federal or state law enforcement agency.

2. USCIS Assistance

USCIS may not release any information contained in any TPS application and supporting documents in any form to any third party, without a court order or the written consent of the applicant. [24] Status inquiries may not confirm or deny the existence of a TPS application, or whether a person has TPS, until the identity of the inquirer has been confirmed and it has been determined the inquirer is not a third party to whom information may not be released.

USCIS employees must adhere to these same TPS confidentiality provisions regarding the disclosure of information to third parties, even if the information is contained in a TPS-related form such as:

  • The Application for Employment Authorization (Form I-765), which every TPS applicant must file;

  • A TPS-related waiver requested on Application for Waiver of Grounds of Inadmissibility (Form I-601); or

  • A TPS-related Application for Travel Document (Form I-131).

With respect to confidentiality, USCIS employees must treat these records as they do other TPS supporting documentation in the TPS application package.

USCIS employees may respond to general questions about the TPS program. [25] However, for all case-specific questions relating to Form I-821 applications, USCIS employees must first confirm the identity of the person and his or her eligibility to receive such information.

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

3. Exceptions for Disclosure

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

  • When it is mandated by a court order; or

  • With the written consent of the applicant.

Information about TPS cases can be disclosed to officers of DOJ, DHS, or any federal or state law enforcement agency since they are not considered third parties. [26] Information disclosed under the requirements of the TPS confidentiality regulation may be used for immigration enforcement or in any criminal proceeding.

H. Legalization

1. Confidentiality Provisions

Statutory and regulatory provisions require confidentiality in legalization cases and Legal Immigration Family Equity (LIFE) Act legalization cases, prohibiting the publishing of any information that may be identified with a legalization applicant. [27] The laws also do not permit anyone other than sworn officers and employees of DHS and DOJ to examine individual applications.

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

  • To make a determination on the legalization application;

  • For criminal prosecution of false statements violations; [28] or

  • In preparation of certain reports to Congress.

A breach in confidentiality of legalization cases can result in a $10,000 fine. [29]

2. USCIS Assistance

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

3. Exceptions for Disclosure

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

Law Enforcement Purposes

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

Requested by an Official Coroner

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

Statistical Information

Disclosure of data and statistical information may be made in the manner and circumstances permitted by law. [30]

Available from Another Source

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

I. Special Agricultural Workers

1. Confidentiality Provisions

Material in A-files filed pursuant to the Special Agricultural Workers (SAW) program is protected by strict confidentiality provisions. [31] The statute provides that the employee who knowingly uses, publishes, or permits information to be examined in violation of the confidentiality provisions may be fined not more than $10,000. [32]

In general, USCIS may not use information furnished by the SAW applicant for any purpose other than to make a determination on the application, for termination of temporary residence, or for enforcement actions relating to false statements in applications. [33] The applicant may not waive the confidentiality provisions, which even survive the death of the applicant.

2. USCIS Assistance

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

3. Exceptions for Disclosure

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

Law Enforcement Purposes

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

Requested by an Official Coroner

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

Criminal Convictions

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

J. S Nonimmigrant Visa Category

Nonimmigrants under the S visa category are alien witnesses or informants. An S nonimmigrant is not readily identified in USCIS systems. However, if a USCIS employee discovers that an inquiry is from an S nonimmigrant or from someone who has applied for such status, the case must be handled carefully.

Inquiries regarding the following should come from a law enforcement entity: [34]

  • An Interagency Alien Witness and Informant Record (Form I-854A);

  • An Interagency Alien Witness and Informant Adjustment of Status (Form I-854B); and

  • An Application for Employment Authorization (Form I-765) filed on the basis of being a principal nonimmigrant witness or informant in S classification.

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

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

K. Witness Security Program

1. Program Participants

Participation in the Witness Security Program (commonly known as the Witness Protection Program) is not reflected in USCIS systems. Applicants in the Witness Security Program should not tell anyone, including USCIS employees, that they are participants in the program. A separate immigration file is created for a new identity of an alien in the program, and information from before and after the change in identity must be in separate files. However, one file will have documentation of a legal name change.

2. USCIS Assistance

If an applicant indicates that he or she is in the Witness Security Program, the applicant should be referred to the U.S. Marshals Service[35] Also, under no circumstances should USCIS employees ask questions about why or how the applicant was placed in the Witness Security Program or any specific information about the case which resulted in the applicant being placed in the Witness Security Program.

Footnotes


1. [^] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a (PDF)).

2. [^] See DHS Privacy Policy Guidance Memorandum (PDF), issued April 25, 2017.

3. [^] See Privacy Incident Handling Guidance (PDF), DHS Instruction Guide 047-01-008, issued December 4, 2017.

4. [^] See Privacy Incident Handling Guidance (PDF), DHS Instruction Guide 047-01-008, issued December 4, 2017.

5. [^]The enhanced privacy protections and other confidentiality protections associated with certain applications and petitions mean that merely acknowledging the existence of a pending petition or application could violate statutory and regulatory requirements. As a result, when responding to inquiries about these types of cases, including Violence Against Women Act (VAWA), T, U, and asylum cases, USCIS employees should follow the policies in place for those specific benefits. For more information, see Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)] through Section K, Witness Security Program [1 USCIS-PM A.7(K)].

6. [^] A case’s status generally refers to its current posture in the adjudication process, which is dictated by the last action taken. For example, a case could be pending background checks, with an officer, awaiting response to a request for evidence (RFE), or with a decision issued on a given date.

7. [^] See USCIS Change of Address web portal. See Chapter 4, Service Request Management Tool, Section B, Responding to Service Requests [1 USCIS-PM A.4(B)].

8. [^] See Section E, VAWA, T, and U Cases, Subsection 3, USCIS Assistance [1 USCIS-PM A.7(E)(3)].

9. [^] See The DHS Policy for Internal Information Exchange and Sharing.

10. [^] For requests from federal, state, or local government agency representatives who want to review or want copies of documents from an A-file, USCIS employees should refer to USCIS records procedures regarding outside agency requests for USCIS files.

11. [^] See Pub. L. 103-322 (PDF) (September 13, 1994).

12. [^] See Pub. L. 106-386 (PDF) (October 28, 2000).

13. [^] See 8 U.S.C. 1367.

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

15. [^] See 13 U.S.C. 8.

16. [^] See 8 U.S.C. 1641(c).

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

18. [^] See INA 101(i)(1).

19. [^] For more information regarding change of address procedures, see the Change of Address Information web page.

20. [^] See 8 CFR 208.6.

21. [^] See 8 CFR 208.6.

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

23. [^] See INA 244(c)(6) . See 8 CFR 244.16

24. [^] See 8 CFR 244.16 for exceptions.

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

26. [^] See 8 CFR 244.16.

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

28. [^] See INA 245A(c)(6).

29. [^] See INA 245A(c)(5)(E).

30. [^] See 13 U.S.C. 8.

31. [^] See INA 210 . This pertains to the 1987-1988 SAW program.

32. [^] See INA 210(b)(6)(D).

33. [^] See INA 210(b)(7).

34. [^] See 8 CFR 274a.12(c)(21).

35. [^] Officers can find information on how to contact their local U.S. Marshals Service office (if they are in the United States) on the U.S. Marshals Service website. Officers should advise applicants to consult with the U.S. Marshals Service on how to handle the disclosure of their participation in the Witness Protection Program.

Chapter 8 - Conduct in USCIS Facilities

A. Privacy in USCIS Offices

When communicating about personal or case specific information, both USCIS employees and the public should note the importance of protecting privacy. [1] Whenever possible, both USCIS employees and the public should take common sense steps to make communications as private as possible. For example, USCIS employees should:

  • Avoid projecting so that others in the room can clearly hear conversations that involve personal information; and

  • For in-person encounters about case-specific inquiries, ensure that inquirers are given sufficient space so that documents presented are not on display for others to see.

USCIS must strike a balance between quickly and accurately assisting large groups of benefit requestors on the one hand, and protecting the privacy of all persons on the other. USCIS employees and benefit requestors must work together to strike this balance as best as possible. Persons contacting USCIS regarding a matter with heightened privacy considerations should work with USCIS employees to ensure that their privacy is protected.

B. Electronic Devices

Visitors must abide by applicable policies established by the facility in which they are seeking services. Depending on the facility’s policies, visitors may be permitted to possess cell phones, personal digital assistants, tablets, laptops, and other electronic devices.

No one may photograph or record at a USCIS office except when observing naturalization or citizenship ceremonies. In addition, phones should be silenced while in the waiting area and any conversations should be kept to a low level so as not to disrupt others. Phones should be turned off during interviews or while being served by USCIS staff at the information counter.

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

  • Ensure all USCIS federal and contract employees are aware of the cell phone usage policies;

  • Ensure all visitors are informed of the cell phone usage policies; and

  • Display posters and signage regarding this guidance in common areas.

Footnotes


1. [^] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].

Chapter 9 - Feedback, Complaints, and Reporting Misconduct

A. Feedback

1. USCIS Contact Center

USCIS conducts telephone interviews every month with callers who have used the USCIS Contact Center within the past 90 days. USCIS may contract with a private company to execute this task. The interviews that are conducted represent a statistically valid sample.

2. In-Person Appointments

Field offices may provide feedback forms in their waiting rooms. If such forms are provided, field offices should also provide a place within the office to deposit the feedback forms.

3. USCIS Website

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

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

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

B. Complaints [1]

1. Ways of Submitting Complaints

Complaint in USCIS Office

Persons can make a complaint in a USCIS office by asking to speak to a supervisor. In these situations, a supervisor must be made available within a reasonable amount of time. The supervisor should take the complainant’s name and information about the nature of the complaint. The supervisor should attempt to resolve the issue before the complainant leaves the office.

Submit Written Complaint

Written complaints may include handwritten letters, emails, or faxes. [2]

Contact Office of Inspector General Directly [3]

Contact information for DHS Office of Inspector General (OIG) can be found on both the USCIS website and on the DHS website. OIG contact information must also be displayed in a public area and visible in every USCIS field office.

File Complaint with USCIS Headquarters

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

Ask to Speak to Contact Center Supervisor

If a caller is dissatisfied with the service he or she received during a call to the USCIS Contact Center, the caller may ask to speak to a supervisor. [4] Both Tier 1 and Tier 2 staff members must transfer the call to a supervisor.

2. Complaints Received

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

All complaints should be responded to by providing a written response, telephone call, or if applicable, addressing the complaint in person upon submission. The response should explain steps taken to resolve the issue. In cases where the complaint cannot be resolved in a reasonable time, the response should acknowledge the receipt of the complaint, when a resolution is expected, and any additional action the person may take.

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

C. Reporting Allegations of Misconduct

Benefit requestors and other interested parties should report allegations of misconduct by USCIS employees. [5]

1. Employee Misconduct

Allegations of misconduct by USCIS employee and contractors should be reported immediately to the USCIS Office of Investigations (OI) or the DHS Office of the Inspector General (OIG). Allegations can include, but are not limited to:

  • Fraud, corruption, bribery, and embezzlement;

  • Sexual advances or sexual misconduct;

  • Theft or misuse of funds and theft of government property;

  • Perjury;

  • Physical assault; [6]

  • Unauthorized release of classified or special protected class [7] information;

  • Drug use or possession;

  • Unauthorized use or misuse of sensitive official government databases;

  • Misuse of official position for private gain;

  • Misuse of a government vehicle or property;

  • Failure to properly account for government fund;

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

  • Falsification of travel documents; and

  • Falsification of employment application documents.

2. Reporting Employee Misconduct

Reporting Employee Misconduct

Contact Information [8]

DHS Office

Phone and Fax

Mail

USCIS OI

202-233-2453 (Fax)

Office of Investigations
Attn: Intake
Mail Stop: 2275
U.S. Citizenship and Immigration Services
633 Third Street NW, 3rd Floor, Suite 350
Washington, DC 20529-2275

DHS OIG

Toll-free hotline:

800-323-8603

202-254-4297 (Fax)

 

DHS Office of Inspector General, Mail Stop: 0305
Attn: Office of Investigations - Hotline
245 Murray Lane, SW
Washington, DC 20528-0305


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

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

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

Any allegation may also be reported by contacting DHS OIG directly either through a local OIG field office, [9] or by one of the methods above.

3. Allegations of Discrimination

Allegations of discrimination based on race, color, religion, sex, sexual orientation, parental status, protected genetic information, national origin, age, or disability should be promptly reported to a USCIS supervisor or to the DHS Office for Civil Rights and Civil Liberties (CRCL). [10] In addition, allegations involving physical assault (such as grabbing, fondling, hitting, or shoving) should be reported to OI or DHS OIG. CRCL’s website also contains detailed information about avenues for filing complaints with different offices and components of DHS. [11]

DHS Office for Civil Rights and Civil Liberties

Contact Information

Email

Fax

Mail

CRCLCompliance@hq.dhs.gov

202-401-4708

U.S. Department of Homeland Security
Office for Civil Rights and Civil Liberties
245 Murray Lane, SW, Building 410
Mail Stop: 0190
Washington, DC 20528

D. Reporting Fraud, Abuse, and Scams

Benefit requestors and other interested parties should report fraud, abuse, and scams as indicated on the USCIS Contact Us page. 

In addition, immigration fraud can be reported to:

The USCIS website also contains information on common scams and how to avoid scams.

Footnotes


1. [^] This section specifically addresses complaints that do not involve egregious or criminal misconduct. For information on the Office of Security and Integrity’s policy on reporting criminal and egregious misconduct, see Section C, Reporting Allegations of Misconduct [1 USCIS-PM A.9(C)].

2. [^] See Appendix: Dissatisfaction with USCIS: Terms and Definitions for information on where to send complaints.

3. [^] See Appendix: Dissatisfaction with USCIS: Terms and Definitions for information on how to contact the OIG.

4. [^] See Chapter 3, Forms of Assistance, Section C, Telephone [1 USCIS-PM A.3(C)].

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

6. [^] Physical assault may include grabbing, fondling, hitting, or shoving.

7. [^] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].

8. [^] Allegations reported directly to the DHS OIG may also be reported through a local DHS OIG field office.

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

10. [^] See the File a Civil Rights Complaint page on the DHS website. 

11. [^] See How to File a Complaint with the Department of Homeland Security (PDF), issued October 3, 2012.

Part B - Submission of Benefit Requests

Chapter 1 - Purpose and Background

A. Purpose

Aliens seeking immigration benefits in the United States must generally request benefits by filing the appropriate USCIS form(s) with USCIS.[1] Proper submission of benefit requests provides USCIS the opportunity to determine whether a person is initially eligible for the benefit requested and facilitates an efficient management of requests.[2]

B. Background

With the Immigration Act of 1891, the federal government assumed direct control of inspecting, admitting, rejecting, and processing all immigrants seeking admission to the United States.[3] On January 2, 1892, the Immigration Service opened Ellis Island in New York Harbor. The Immigration Service began collecting arrival manifests from each incoming ship. Inspectors then questioned arrivals about their admissibility and noted their admission or rejection on the manifest records.[4]

Over the years, different federal government departments and offices have adjudicated immigration benefit requests. The process of submitting benefit requests has also changed over time. Today, requestors generally seek benefits from USCIS by submitting specific forms; the forms also help guide requestors in collecting and submitting necessary evidence. USCIS uses forms to establish the record, verify identity, and adjudicate the benefit request.

USCIS is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners.[5] Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants.

C. Legal Authorities

  • INA 103 - Powers and duties of the Secretary, Under Secretary, and Attorney General

  • 8 CFR 103.2 - Submission and adjudication of benefit requests 

  • 8 CFR 103.7 - Fees

Footnotes


1. [^] See 8 CFR 103.2(a)(1).

2. [^] The terms “benefit request” and “immigration benefit request,” as used in this Part, include, but are not limited to, all requests funded by the Immigration Examinations Fee Account (IEFA). These terms may also refer to forms or requests not directly resulting in an immigration benefit, such as those resulting in an exercise of prosecutorial discretion by DHS.

3. [^] See Pub. L. 55-551 (March 3, 1891).

4. [^] See the USCIS History and Genealogy website for additional information. See Overview of Legacy Immigration and Naturalization Service (INS) History (PDF, 285 KB).

5. [^] See INA 286(m). See 8 CFR 103.7(c)

Chapter 2 - Signatures [Reserved]

Chapter 3 - Fees

ALERT: The Federal District Court for the Northern District of California in Seattle v. DHS has enjoined DHS from requiring use of the 10/24/19 edition of Form I-912, Request for Fee Waiver. That edition has been removed from the USCIS forms website. USCIS has reverted to requiring the 03/13/18 edition of Form I-912 until further notice. We will also accept prior editions or a written request. As there may be applicants who have prepared the 10/24/19 edition of the fee waiver request, USCIS will accept and process the 10/24/19 edition of the Form I-912 and adjudicate it based on prior fee waiver policy outlined in AFM 10.9 and 10.10

Requestors must include any required fees with the submission of a benefit request to USCIS.[1] This payment must be in U.S. currency.

The fee amount for each benefit request is controlled by regulation and identified in the corresponding form instructions.[2] The total fee amount for each form is not determined solely by the fee required for the associated form.[3] Additional fees may be required, such as the biometric services fee or the fraud detection and prevention fee.[4] The additional services needed in a given situation dictate which additional fees are added to the total amount. The form instructions for the particular form generally indicate when the parties filing a request must pay an additional fee and the amount of that fee.

USCIS may waive the fee for certain immigration benefit requests when the person requesting the benefit is unable to pay the fee.[5] Certain forms or categories of requestors may also be exempt from fees. The USCIS Fee Schedule (Form G-1055 (PDF, 364 KB)) provides a list of forms and associated fees or exemptions.

A. Fee Submission

Once USCIS receives the proper fee, USCIS accepts the submission of the benefit request and sends the benefit requestor a receipt notice. USCIS rejects submissions that do not contain valid payment of the correct fee amount.[6] If the payment is not collectable and USCIS has approved the benefit request, USCIS may revoke the approval with notice.[7]

If a check is returned for insufficient funds (NSF), USCIS attempts to collect payment from the remitter institution a second time. If the instrument used to pay a fee is returned as unpayable a second time, USCIS rejects the filing and imposes a $30 charge.[8] If the check is returned by the remitter institution for any reasons other than NSF, such as stop payment, fraud, or closed account, the check cannot be submitted a second time. In all applicable cases, USCIS sends a notice regarding any returned checks or unfunded accounts.

B. Paying USCIS Fees [Reserved]

C. Refunds

In general, fees submitted to USCIS are non-refundable, regardless of the ultimate decision on the benefit request. There are a few exceptions to this rule, such as when USCIS made an error that resulted in the unnecessary filing of a form, or the filing of the wrong fee. For example, USCIS refunds the fee if it advises an applicant to file a waiver application on a ground of inadmissibility that is inapplicable to that applicant.

If a benefit requestor believes that he or she is entitled to a refund of a fee, the requestor should contact the USCIS Contact Center, or submit a written request for a refund to the office with jurisdiction over the benefit request.

USCIS reviews the request for a refund and either approves or denies the request based on the available information. If the officer finds USCIS made an error, he or she should complete a Request for Refund of Fee (Form G-266). USCIS then notifies the requestor of its decision on the request.

Failure to Submit Required Initial Evidence

Form instructions provide the initial evidence that a benefit requestor must submit when filing a form. If USCIS denies a benefit request because the requestor failed to submit the required initial evidence, USCIS will also deny a request for a refund of the fee.[9]

Footnotes


1. [^] See 8 CFR 103.7(a)(1).

2. [^] See 8 CFR 103.7(b)(1). See the USCIS website for a complete list of all forms and form instructions.

3. [^] See 8 CFR 103.2(a)(9).

4. [^] See 8 CFR 103.7(b)(1). See 8 CFR 103.7(b)(1)(i)(HHH).

5. [^] See 8 CFR 103.7(c). See also INA 286(m) (authorizing USCIS fees to recover the costs of services provided without charge). 

6. [^] See 8 CFR 103.7(a)(2).

7. [^] See 8 CFR 103.7(a)(2).

8. [^] See 8 CFR 103.7(a)(2).

9. [^] See 8 CFR 103.2(b)(8)(ii). A petitioner or applicant may need to provide additional evidence to establish eligibility for the benefit sought at the time of an interview or after USCIS issues a Request for Evidence (RFE).

Chapter 4 - Fee Waivers

ALERT: The Federal District Court for the Northern District of California in Seattle v. DHS has enjoined DHS from requiring use of the 10/24/19 edition of Form I-912, Request for Fee Waiver. That edition has been removed from the USCIS forms website. USCIS has reverted to requiring the 03/13/18 edition of Form I-912 until further notice. We will also accept prior editions or a written request. As there may be applicants who have prepared the 10/24/19 edition of the fee waiver request, USCIS will accept and process the 10/24/19 edition of the Form I-912 and adjudicate it based on prior fee waiver policy outlined in AFM 10.9 and 10.10

Currently, USCIS may waive the fee for certain immigration benefit requests when the individual requesting the benefit is unable to pay the fee.[1] Applicants, petitioners, and requestors who pay a fee cover the cost of processing requests that are fee-exempt, fee-waived, or fee-reduced.

A. General

1. Eligibility

A benefit requestor may request a fee waiver from USCIS if:

  • The benefit requestor is unable to pay the requisite fee, and

  • The form is eligible for a fee waiver.

There is no fee required for filing a fee waiver request.

If a benefit request includes both the appropriate filing fee and a fee waiver request, USCIS does not adjudicate the fee waiver request since the person will not be able to establish an inability to pay. In such a case, USCIS deposits the fee and processes the immigration benefit request, if it is otherwise acceptable.

2. Inability to Pay Criteria and Burden of Proof

The burden of proof is on the requestor to establish an inability to pay under USCIS policy. USCIS reviews two criteria to determine an applicant's inability to pay:

For USCIS to find an inability to pay, the officer must reasonably determine that the applicant or petitioner is unlikely to pay the fee based on the evidence.

3. Filing of Fee Waiver Request

To request a fee waiver, a benefit requestor must submit a:

  • Request for Fee Waiver (Form I-912); and

  • Documentation establishing eligibility based on an inability to pay through one of the two criteria.

The HHS Poverty Guidelines for Fee Waiver Request (Form I-912P) provide the income thresholds per year.

The person requesting the fee waiver must sign the request. A parent or legal guardian may sign for children under 14 years old or for an incapacitated adult for whom he or she is the legal guardian. The person submitting the benefit request on behalf of a child or incapacitated adult must provide evidence of the claimed relationship and authority to sign.

Failure to Meet Other Filing Requirements

USCIS does not review fee waiver requests submitted for benefit requests rejected for reasons unrelated to the fee. For example, USCIS does not review fee waiver requests in cases involving an immigration benefit application that is defective due to a missing signature.

B. Forms Eligible for Fee Waivers

A benefit requestor may only submit a request for a fee waiver for certain forms.[2] There are three general categories of fee waivers allowed for forms:

  • General waivers;

  • Conditional waivers; and

  • Humanitarian waivers.

1. General Waivers

The following table provides a list of forms for which USCIS may waive the fees based on a requestor’s inability to pay.

General Fee Waivers
Biometrics services fee (except for the biometric services fee required for an Application for Provisional Unlawful Presence Waiver (Form I-601A) filed under 8 CFR 212.7(e))
Application to Replace Permanent Resident Card (Form I-90)
Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) (Form I-191)[3]
Petition to Remove Conditions on Residence (Form I-751)
Application for Employment Authorization (Form I-765) (unless filing under category (c)(33), Deferred Action for Childhood Arrivals)
Application for Family Unity Benefits (Form I-817)
Application for Temporary Protected Status (Form I-821)[4]
Application for Suspension of Deportation or Special Rule Cancellation of Removal (Form I-881)[5]
Application to File Declaration of Intention (Form N-300)
Request for a Hearing on a Decision in Naturalization Proceedings (Form N-336)[6]
Application for Naturalization (Form N-400)
Application to Preserve Residence for Naturalization Purposes (Form N-470)
Application for Replacement of Naturalization/Citizenship Document (Form N-565)
Application for Certificate of Citizenship (Form N-600)
Application for Citizenship and Issuance of Certificate under Section 322 (Form N-600K)

2. Conditional Waivers

Certain fee waivers depend on specific conditions. The following tables provide a list of forms for which USCIS may waive fees based on the requestor’s inability to pay and meet the specified conditions.

Conditional Fee Waivers
Petition for a Nonimmigrant Worker (Form I-129) for an applicant for E-2 CNMI investor nonimmigrant status under 8 CFR 214.2(e)(23)
Application for Travel Document (Form I-131) for those applying for humanitarian parole
Application for Advance Permission to Enter as Nonimmigrant (Form I-192) for an applicant who is exempt from the public charge grounds of inadmissibility[7]
Application for Waiver of Passport and/or Visa (Form I-193) for an applicant who is exempt from the public charge grounds of inadmissibility[8]
Notice of Appeal or Motion (Form I-290B) if the underlying benefit request was fee exempt, the fee was waived, or it was eligible for a fee waiver
Application to Register Permanent Residence or Adjust Status (Form I-485) for an applicant who is exempt from the public charge grounds of inadmissibility[9]
Application to Extend/Change Nonimmigrant Status (Form I-539) for an applicant with any benefit request as specified by INA 245(l)(7) or an applicant for E-2 Commonwealth of the Northern Mariana Islands (CNMI) investor nonimmigrant status under 8 CFR 214.2(e)(23)
Application for Waiver of Grounds of Inadmissibility (Form I-601) for an applicant who is exempt from the public charge grounds of inadmissibility[10]
Notice of Appeal of Decision Under Sections 245A or 210 of the Immigration and Nationality Act (Form I-694) if the underlying application or petition was fee exempt, the filing fee was waived, or was eligible for a fee waiver

As noted in the table above, USCIS may waive fees for a Form I-485 applicant who is exempt from the public charge grounds of inadmissibility.[11] The table below provides a general list of adjustment of status applicants who are exempt from public charge and therefore may qualify for a fee waiver.

Form I-485 Conditional Fee Waivers – Exemption from Public Charge
Asylees[12]
Special immigrant juveniles
Applications under the Cuban Adjustment Act (CAA)[13]
Applications under the Haitian Refugee Immigration Fairness Act (HRIFA)[14]
Applications under the Nicaraguan Adjustment and Central American Relief Act (NACARA)[15] or similar provisions
Lautenberg Parolees

3. Humanitarian Fee Waivers

USCIS may also waive fees for any benefit request or associated form, including the adjustment of status application, for humanitarian purposes as authorized by statute. This includes petitions not otherwise eligible for a fee waiver or eligible only for conditional fee waivers.[16] Some of these categories are also exempt from the public charge inadmissibility determination and therefore would also be eligible for a fee waiver on that basis.[17]

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)[18] requires DHS to permit certain benefit requestors to apply for fee waivers for “any fees associated with filing an application for relief through final adjudication of the adjustment of status.”[19] DHS interprets this provision[20] to mean that, in addition to the primary benefit request, an applicant who files any form that may be filed with the primary benefit request or the adjustment of status application must be provided the opportunity to request a fee waiver.[21] The table below lists, by immigration category, the primary benefit requests and associated form(s) for which DHS must provide an opportunity to request a fee waiver.[22]

Humanitarian Fee Waiver Categories: Forms Eligible for Fee Waiver

Category

Primary Benefit Request

Associated USCIS Forms

Violence Against Women Act (VAWA)[23] self-petitioners[24]

  • Application to Register Permanent Residence or Adjust Status (Form I-485)

  • Petition to Remove Conditions on Residence (Form I-751)

  • Application for Travel Document (Form I-131)[25]

  • Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212)

  • Notice of Appeal or Motion (Form I-290B)

  • Application for Waiver of Grounds of Inadmissibility (Form I-601)

  • Application for Employment Authorization (Form I-765)

Victims of severe form of trafficking (T nonimmigrant status)[26]

  • Application to Register Permanent Residence or Adjust Status (Form I-485)[27]
  • Application for Advance Permission to Enter as a Nonimmigrant (Form I-192)

  • Application for Waiver of Passport and/or Visa (Form I-193)

  • Application for Travel Document (Form I-131)

  • Notice of Appeal or Motion (Form I-290B)

  • Application to Change/Extend Nonimmigrant Status (Form I-539)

  • Application for Waiver of Grounds of Inadmissibility (Form I-601)

  • Application for Employment Authorization (Form I-765)

Victims of criminal activity (U nonimmigrant status)[28]

  • Petition for Qualifying Family Member of a U Nonimmigrant (Form I-929)

  • Application to Register Permanent Residence or Adjust Status (Form I-485)

  • Application for Travel Document (Form I-131)

  • Application for Advance Permission to Enter as a Nonimmigrant (Form I-192)

  • Application for Waiver of Passport and/or Visa (Form I-193)

  • Notice of Appeal or Motion (Form I-290B)

  • Application to Change/Extend Nonimmigrant Status (Form I-539)

  • Application for Employment Authorization (Form I-765)

Battered spouse or child of a lawful permanent resident or U.S. citizen[29]

  • Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents (EOIR-42B (PDF)) (DOJ form and immigration judge determines fee waiver)
  • Waiver of Grounds of Inadmissibility (Form I-601)

Temporary Protected Status[30]

  • Application for Temporary Protected Status (Form I-821)
  • Application for Employment Authorization (Form I-765)

  • Application for Waiver of Grounds of Inadmissibility (Form I-601)

  • Application for Travel Document (Form I-131)

Applications related to Deferred Action for Childhood Arrivals (DACA) filings,[31] including a stand-alone Form I-765 filed, are not eligible for a fee waiver.

4. Third-Party Fee Waiver Request

An immigration judge may grant fee waiver requests in an immigration court proceeding.[32] In addition, an immigration judge may request USCIS to consider a fee waiver request. The requestor must submit a Request for Fee Waiver (Form I-912) and evidence of eligibility under one of the two criteria. 

C. Income At or Below 150 Percent of Federal Poverty Guidelines

The applicant must clearly demonstrate an inability to pay the fees in order to qualify for a fee waiver.[33] Inability to pay the fee is based on the applicant’s household income.

The applicant must demonstrate that his or her total household income at the time of filing is at or below 150 percent of the current Federal Poverty Guidelines (FPG) based on household size. USCIS does not review the person's past or future income or financial situation when determining household income. The Secretary of the Department of Health and Human Services (HHS) establishes the FPG annually.[34]

1. Household

For fee waiver review purposes, a household[35] may include:

  • The applicant;

  • The head of household (if not the applicant);

  • The applicant’s spouse, if living with the applicant (if the applicant and spouse are separated or not living together, then the spouse is not included as part of the household);[36] or

  • Any family members living in the applicant’s household who are dependent on the applicant’s income, the spouse’s income, or the head of household’s income.

Family members living in the applicant’s household include the:

  • Applicant’s children or legal wards who are unmarried and under 21 years of age;
  • Applicant’s children or legal wards who are unmarried, are over 21 years of age but under 24 years of age, and are full-time students;
  • Applicant’s children or legal wards who are unmarried and for whom the applicant is the legal guardian because the child or legal ward is physically or developmentally disabled, or mentally impaired to the extent that the child or legal ward cannot adequately care for him or herself, and cannot establish, maintain, or re-establish his or her own household;
  • Applicant’s parents; and
  • Any other dependents listed on the applicant’s federal income tax return, or the spouse’s or head of household’s federal income tax return.[37]

Head of Household

In general, the head of the household is the person who files the most recent federal tax return with the Internal Revenue Service (IRS) for the household, or the person who earns the majority of the income for the household. Persons applying under the special immigrant juvenile (SIJ) classification are considered part of their own household without including any foster or group home household members.

People who are cohabitating with the applicant, but not financially supported by the applicant, such as roommates or nannies, are not included in the household for the purpose of a fee waiver request.

2. Documentation

To demonstrate the household income, the applicant must provide:

  • A copy of each household member’s most recent federal tax return transcript; or if a tax transcript is not available a recent Form W-2 and a Form SSA-1099 (if applicable); and

  • Documentation of additional financial assistance.

If the applicant's income has changed since the tax return filing, because of unemployment, the applicant must provide evidence of unemployment such as a termination letter or unemployment insurance receipt. If the applicant’s income has changed since the tax return filing due to a change in employment, the applicant must provide information on the current employment and income, such as recent pay statements or W-2 forms.

If the applicant resides and filed tax returns in a U.S. territory, he or she must submit the tax return transcript from the territory instead of a federal tax return transcript if no federal tax return was required.

Tax Returns

If the request is filed between January 1 and April 15, and the person has not yet filed the previous year's return, the requestor must submit the tax returns transcript for the most recently filed year.[38] The person is not required to have the IRS certify the transcript. 

USCIS uses the adjusted gross income (AGI) from IRS Form 1040 to calculate annual income. If the person is submitting a W-2 or pay statements, USCIS uses the gross pay (pay before taxes and any other withholdings), including any overtime and irregular hours as listed to calculate the annual income.

In determining total household income, USCIS adds any Social Security income (as reflected on the SSA-1099) to the AGI in the tax return.

Earned Income Tax Credit (EITC) statements, Miscellaneous Income (Form 1099-MISC), and Certain Government Payments (Form 1099-G) are not acceptable as proof of income without the tax return transcripts, W-2s, or Social Security statements.

The applicant may provide additional documentation to establish marital status and household size. If the person’s current situation is different from the documentation provided, he or she must provide an explanation regarding the inconsistency in the documentation. For example, a tax return transcript that indicates the person is married but the person is currently separated or states in the fee waiver request that he or she is single, must provide an additional explanation for the inconsistency and the documentation for income.

An applicant may use IRS Form 4506-T (PDF) to request income tax transcripts, a copy of Form W-2, or Form 1099-G, from the IRS or to establish that no IRS transcript is available.

If the applicant has provided tax returns as part of another immigration application or petition, such as an affidavit of support, the applicant does not need to submit additional tax return transcripts. USCIS will review the affidavit of support for any inconsistencies with the fee waiver request.

VAWA, T, and U-Based Applicants

Applicants seeking a fee waiver for any immigration benefits (such as for adjustment of status) based on VAWA or T or U nonimmigrant status do not need to provide the income of any household member, including a spouse, who is or was their abuser or human trafficker. Persons listed as a dependent on an income tax return and applying for any immigration benefits based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status also do not need to provide the income of any household member, including a spouse, if that member is or was their abuser or human trafficker. 

USCIS considers whether a person is unable to obtain proof of income (or proof of household members’ income) due to victimization such as trafficking or abuse. The person must describe the situation in sufficient detail on the form to substantiate his or her inability to pay, as well as his or her inability to obtain the required documentation. In addition, the person must provide any available documentation of his or her income, such as pay stubs or affidavits from religious institutions, non-profits, or other community-based organizations, verifying that he or she is currently receiving some benefit or support from that entity and attesting to his or her financial situation.

Special Immigrant Juveniles

An SIJ who files a fee waiver request[39] for any form is not required to provide proof of income. However, the fee waiver request must include one of the following forms of evidence:

  • A final state or juvenile court order establishing dependency or custodial placement of the SIJ;

  • A letter from a foster care home or similar agency overseeing the SIJ's custodial placement that describes the SIJ's inability to pay; or

  • An approval notice on a Notice of Action (Form I-797) for a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), filed for the SIJ.

SIJs are considered part of their own household, without including any foster or group home household members.

An officer may verify in the available systems whether the requestor has applied for, or received, SIJ classification.

Children in Foster Care

A child in foster care[40] must submit a valid fee waiver request using Form I-912. As evidence of lack of income, USCIS may accept a letter from a foster care home or similar agency overseeing the foster child’s custodial placement that describes the child's inability to pay. The income of a child in foster care does not include any income from foster or group home household members.

3. Additional Financial Assistance

The table below includes the types of financial assistance that are included as part of the total household income and must be included as income in the fee waiver request. The applicant must also provide documentation of each type of additional financial assistance.

Additional Financial Assistance

Parental support

Alimony

Child support

Educational stipends

Pensions

Social Security

Royalties

Veteran’s benefits

Unemployment benefits

Consistent or regular financial support from adult children, parents, dependents, or other people living in the applicant’s household

A court order of any child support or documentation from an agency providing other income or financial assistance

 

D. Financial Hardship

The alien may demonstrate that he or she is under financial hardship due to extraordinary expenses or other circumstances affecting his or her financial situation to the degree that he or she is unable to pay the fee. If the applicant is under financial hardship, the applicant should demonstrate that he or she has suffered a substantial negative financial impact as a result of this hardship in a reasonably recent period preceding the filing of the fee waiver request so as to render the applicant’s income during that period insufficient to pay the fee. For example, an alien may face financial hardship due to medical expenses of family members, unemployment, eviction, victimization, and homelessness.

Documentation

The applicant may submit documentation as follows to demonstrate that he or she is under financial hardship that renders him or her unable to pay the fee:

  • Documentation of income;

  • Documentation of all assets owned, possessed, or controlled by the applicant and dependents; and

  • Documentation concerning liabilities and expenses owed by the alien and dependents, and any other expenses for which the alien is responsible.

The table below provides a list of assets and liabilities that may be part of the fee waiver request.

Examples of Documentation of Financial Hardship

Assets

Liabilities

  • Real estate property;

  • Cash;

  • Checking and savings accounts; and

  • Stocks, bonds, and annuities (except for pension plans and Individual Retirement Accounts (IRAs)).

 

  • Rent or mortgage;

  • Average monthly cost of food;

  • Utilities;

  • Child care and elder care;

  • Insurance;

  • Loans and credit cards;

  • Car payment;

  • Commuting costs;

  • Medical expenses; and

  • School expenses.

 

If the applicant cannot provide evidence of income, he or she should provide information and documentation as provided below.

1. Applicants Without Income

If the applicant has no income due to unemployment, homelessness, or other factors, he or she must provide:

  • A detailed description of his or her financial situation that demonstrates eligibility for the fee waiver;

  • Request for Transcript of Tax Return (IRS Form 4506-T) or Wage and Tax Statement (IRS Form W-2) or a statement that no tax returns or W-2s are available from the IRS; 

  • If the person is receiving support services, an affidavit from a religious institution, non-profit, or community-based organization verifying the person is currently receiving some benefit or support from that entity and attesting to the applicant’s financial situation; and

  • Evidence of unemployment, such as a termination letter or unemployment insurance receipt.

VAWA, T, and U-Based Applicants

USCIS considers whether an applicant is unable to obtain proof of income due to alleged victimization such as trafficking or abuse. The applicant must describe the situation in sufficient detail on the form to substantiate his or her inability to pay, as well as his or her inability to obtain the required documentation.

In addition, the applicant must provide any available documentation of his or her income, such as a W-2, pay stubs, or affidavits from religious institutions, non-profits, or other community-based organizations, verifying that he or she is currently receiving some benefit or support from that entity and attesting to his or her financial situation.

2. Special Situations

Sometimes natural disasters and other extreme situations can occur that are beyond an applicant's control and may affect a person's ability to pay the fees. USCIS may designate certain time periods or events in which a person may file a fee waiver request for certain petitions and applications based on an inability to pay through the financial hardship eligibility criteria.[41] The applicant must still establish an inability to pay and file the request for the fee waiver. 

E. Adjudication

Each fee waiver request is unique and is considered on its own merits. USCIS may grant a fee waiver request when USCIS determines that the applicant is unable to pay the fee based on established eligibility under one of the two criteria. USCIS adjudicates the fee waiver request based upon the request itself and any additional documentation submitted in support of the fee waiver request at the time of filing and does not issue any Requests for Evidence (RFE).

When adjudicating a fee waiver request, an officer reviews the application and:

  • Validates the household size;

  • Identifies all valid sources of income applicable to the household;

  • Reviews the total annual income of the household;

  • Determines the level at which the applicant may qualify based on the household size;[42] and

  • Verifies that the applicant submitted the proper documentation and established eligibility.

1. Approval

USCIS may approve the fee waiver request only if the applicant establishes that the household income is at or below 150 percent of the FPG at the time of filing or has established financial hardship.

2. Rejection

If USCIS determines that the applicant did not substantiate an inability to pay based on at least one of the two criteria, then USCIS rejects the fee waiver request. The rejection notice must provide the requestor detailed reasons for the rejection. The table below provides a list of reasons for rejection and considerations involved.

Fee Waiver Rejection Criteria

Rejection Criteria

Consideration

Lack of proper filing

  • Applicant did not submit a Request for Fee Waiver (Form I-912)

Income is above 150 percent of the FPG and applicant has not provided sufficient evidence of financial hardship

  • Income listed on the form or in the documentation is above the 150 percent FPG threshold
  • Applicant has not met the burden of proving financial hardship due to the lack of documentation

Unable to determine household income

  • Identification of household members[43] on the form and no statements or documentation of the household member’s income
  • Identification of a spouse[44] on the form, but no statements of income or additional support or documentation of such income or additional support
  • If the requestor’s filing status in the tax return (for example, married filing jointly, single, head of household) is inconsistent with the marital status declared on the fee waiver request, the immigration benefit forms, or support documents, and the requestor does not provide an explanation or evidence regarding the inconsistency
  • If the requestor has indicated on the tax form that he or she may be claimed by another person, but the income information for the tax filer is not provided

Lack of income documentation[45]

  • Lack of documentation of income and additional income or financial support for the applicant and each household member identified in the fee waiver request or of the person providing additional income, as appropriate
  • Lack of tax return transcripts or W-2s
  • Providing pay stubs without a statement from the IRS indicating that no transcripts or W-2s are available
  • Providing a statement from a religious institution, non-profit, or other community-based organization indicating the person does not have income and the entity is providing services, but does not provide a statement from the IRS indicating that no tax transcripts or W-2s are available

Unable to determine financial hardship

  • Insufficient information of the applicant's reason for requesting a financial hardship waiver for the fees
  • Lack of documentation of household income
  • Lack of documentation of assets and liabilities

There is no appeal of a rejection of a fee waiver request. An applicant may refile the benefit request with the proper fees for USCIS to process the request. The applicant may also file another fee waiver request with the required documentation to establish eligibility based on one of the two criteria. 

Footnotes


1. [^] See 8 CFR 103.7(c)

2. [^] See 8 CFR 103.7(c).

3. [^] Also known as the Application for Advance Permission to Return to Unrelinquished Domicile.

4. [^] See INA 244(a)(3).

5. [^] See Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2196 (November 19, 1997).

6. [^] See INA 336.

7. [^] See INA 212(a)(4).

8. [^] See INA 212(a)(4).

9. [^] See INA 212(a)(4)

10. [^] See INA 212(a)(4).

11. [^] See INA 212(a)(4).

12. [^] See INA 209(b). Refugees seeking adjustment under INA 209(a) are automatically exempt from paying the Form I-485 filing fee and biometric services fee, and are not required to demonstrate an inability to pay.

13. [^] See Pub. L. 89-732 (PDF) (November 2, 1966).

14. [^] See Title IX of Pub. L. 105-277 (PDF) (October 21, 1998).

15. [^] See Title II of Pub. L. 105-100 (PDF) (November 19, 1997).

16. [^] For example, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212), Application to Register Permanent Residence or Adjust Status (Form I-485), Application To Extend/Change Nonimmigrant Status (Form I-539), and Application for Waiver of Grounds of Inadmissibility (Form I-601).

17. [^] See Section 201(d)(3) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457 (PDF), 122 Stat. 5044, 5054 (December 23, 2008) (adding INA 245(l)(7)).

18. [^] See Section 201(d)(3) of TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5054 (December 23, 2008) (adding INA 245(l)(7)).

19. [^] See Section 201(d)(3) of TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5054 (December 23, 2008) (adding INA 245(l)(7)).

20. [^] See Section 201(d)(3) of TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5054 (December 23, 2008) (adding INA 245(l)(7)).

21. [^] Certain USCIS forms are not listed in 8 CFR 103.7(b) and therefore have no fee.

22. [^] For example, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212), Application to Register Permanent Residence or Adjust Status (Form I-485), Application To Extend/Change Nonimmigrant Status (Form I-539), and Application for Waiver of Grounds of Inadmissibility (Form I-601).

23. [^] VAWA self-petitioner as defined under INA 101(a)(51) includes abused spouses and children of U.S. citizens and lawful permanent residents; abused parents of U.S. citizens; abused spouses and children filing a waiver of the joint filing requirement under INA 216(c)(4)(C); abused children or spouses under CAA; and abused family members under HRIFA and NACARA.

24. [^] See INA 101(a)(51). See INA 245(l)(7). See TVPRA 2008, Pub. L. 110–457 (PDF), 122 Stat. 5044 (December 23, 2008); 22 U.S.C. 7101 et seq. For requestors in this category, there is no fee for filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) and no fee for filing an Application for Employment Authorization (Form I-765). Form I-360 allows a principal self-petitioner to request an employment authorization document (EAD) incident to case approval without submitting a separate Form I-765. Form I-765 is required for employment authorization requests by derivative beneficiaries and employment authorization requests on a different basis. There is no fee for VAWA self-petitioners using Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). For battered spouses of A, G, E-3, or H nonimmigrants under INA 106, there is no fee for filing an Application for Employment Authorization for Abused Nonimmigrant Spouse (Form I-765V).

25. [^] Currently, fees for Form I-131 are exempt if filed in conjunction with a pending or concurrently filed Form I-485 with fee that was filed on or after July 30, 2007. See 8 CFR 103.7(b)(1)(i)(M)(4).

26. [^] See INA 101(a)(15)(T) (T nonimmigrant status for victims of severe form of trafficking). For this category, there is no fee for filing Application for T Nonimmigrant Status (Form I-914) or for filing Application for Employment Authorization (Form I-765). Form I-914 allows a principal applicant to request an EAD incident to case approval without submitting a separate Form I-765. Form I-765 is required for employment authorization requests by derivative relatives.

27. [^] There is no fee for filing the following forms: Application for T Nonimmigrant Status (Form I-914), Application for Family Member of T-1 Recipient (Form I-914, Supplement A), and Declaration of Law Enforcement Officer for Victims of Trafficking in Persons (Form I-914, Supplement B).

28. [^] See INA 101(a)(15)(U) (U nonimmigrant status for victims of criminal activity). For this category, there is no fee for filing Petition for U Nonimmigrant Status (Form I-918), Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A), or Application for Employment Authorization (Form I-765). Form I-918 allows a principal petitioner to request an EAD incident to case approval without submitting a separate Form I-765. Form I-765 is required for employment authorization requests for principal petitioners who seek an EAD after waiting list placement, as well as by qualifying family members. 

29. [^] See INA 240A(b)(2). See INA 245(l)(7).

30. [^] See INA 244. See INA 245(l)(7).

31. [^] Including Consideration of Deferred Action for Childhood Arrivals (Form I-821D).

32. [^] See 8 CFR 1103.7.

33. [^] See 8 CFR 103.7(c).

34. [^] See HHS Poverty Guidelines for Fee Waiver Request (Form I-912P).

35. ^] If the requestor submits any joint-filed federal tax returns, USCIS reviews the household size to determine household members or spouses.

36. [^] However, any additional income or financial support provided by the spouses must be included in the request. See Subsection 3, Additional Financial Assistance [1 USCIS-PM B.4(C)(3)].

37. [^] USCIS reviews the Internal Revenue Service (IRS) federal income tax return transcripts to examine whether any dependents are listed.

38. [^] For information on obtaining federal income tax transcripts without a fee, see irs.gov/individuals/get-transcript

39. [^] An SIJ may request a fee waiver for an adjustment of status application, and associated Forms I-601, Form I-765, or Form I-290B for Form I-360, or other associated forms.

40. [^] Foster care (also known as out-of-home care) is a temporary service provided by States for children who cannot live with their families. Children in foster care may live with relatives or with unrelated foster parents. Foster care can also refer to placement settings such as group homes, residential care facilities, emergency shelters, and supervised independent living. See 45 CFR 1355.20. See childwelfare.gov/topics/outofhome/foster-care.

41. [^] See Special Situations web page. For example, USCIS allowed for consideration of fee waivers for those affected by South Carolina floods in 2015.

42. [^] Review the HHS Poverty Guidelines for Fee Waiver Request (Form I-912P).

43. [^] Applicants for any immigration benefits based on VAWA or T or U nonimmigrant status do not need to provide the income of any household member who is or was their abuser or human trafficker. Fee waiver requests that detail these grounds of victimization should not be rejected if the applicant has described that a member of his or her household is or was his or her abuser or trafficker in sufficient detail. For more information, see Section C, Income At or Below 150 Percent of Federal Poverty Guidelines, Subsection 2, Documentation [1 USCIS-PM B.4(C)(2)].

44. [^] Applicants for any immigration benefits (such as for adjustment of status) based on VAWA or T or U nonimmigrant status do not need to provide their spouse’s income.

45. [^] Generally, applicants for any immigration benefits (such as for adjustment of status) based on VAWA or T or U nonimmigrant status are not rejected for a lack of documentation if the applicant has described his or her inability to provide the required documentation in sufficient detail and provided any other available documentation. 

Part C - Biometrics Collection and Security Checks

Part D - Attorneys and Representatives

Part E - Adjudications

Part F - Motions and Appeals

Part G - Notice to Appear

Volume 2 - Nonimmigrants

Part A - Nonimmigrant Policies and Procedures

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

Part C - Visitors for Business or Tourism (B)

Part D - Exchange Visitors (J)

Part E - Cultural Visitors (Q)

Part F - Students (F, M)

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

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

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

Part J - Trainees (H-3)

Chapter 1 - Purpose and Background

A. Purpose

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

  • Trainee who seeks to enter the United States at the invitation of an organization or person to receive training in any field of endeavor, other than graduate medical education or training; [1] or​

  • Special Education Exchange Visitor who seeks to participate in a structured special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. [2] 

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

B. Background

The Immigration and Nationality Act (INA) of 1952 contained the precursor to today’s H-3 nonimmigrant classification: “an alien having a residence in a foreign country which he has no intention of abandoning . . . who is coming temporarily to the United States as an industrial trainee[.]” [3] 

In 1970, Congress expanded the class of aliens eligible for nonimmigrant classification by deleting the word “industrial” as a modifier of “trainee” in the statute. [4] However, Congress narrowed the H-3 classification in 1976 by inserting the following language into the statute: “other than to receive graduate medical education or training[.]” [5] 

Finally, the Immigration Act of 1990 [6] both limited and expanded the H-3 classification. Congress limited the H-3 nonimmigrant classification by adding the following language to the statute: “in a training program that is not designed primarily to provide productive employment[.]” [7] However, Congress indirectly expanded the classification by creating the Special Education Exchange Visitor Program, [8] which the legacy Immigration and Naturalization Service placed within the H-3 category. [9] Congress has not amended the statute since 1990. [10] 

C. Legal Authorities

Footnotes


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

2. [^] See 8 CFR 214.2(h)(7)(iv).

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

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

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

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

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

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

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

10. [^] See INA 101(a)(15)(H)(iii).

Chapter 2 - H-3 Categories

A. Trainees [1]

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

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

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

  • A purely industrial establishment​

  • Agriculture​

  • Commerce ​

  • Communications​

  • Finance​

  • Government​

  • Transportation​

  • Other professions [2] 

1. Externs [3]

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

2. Nurses [4] 

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

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

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

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

Additionally, the petitioner must: [5] 

  • Satisfy the H-3 trainee requirements;

  • Establish that the nurse-beneficiary has a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education [6] or that such education was obtained in the United States or Canada; [7] and

  • Include a statement certifying that the nurse-beneficiary is fully qualified under the laws governing the place where the training will be received and that under those laws the petitioner is authorized to give the beneficiary the desired training.[8] 

B. Special Education Exchange Visitors [9]

H-3 special education exchange visitors are participants in a structured special education program that provides practical training and experience in the education of physically, mentally, or emotionally disabled children. This category is limited to an 18-month period of stay and to 50 visas per fiscal year. [10] 

Footnotes


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

2. [^] See 8 CFR 214.2(h)(7).

3. [^] See 8 CFR 214.2(h)(7)(i)(A).

4. [^] See 8 CFR 214.2(h)(7)(i)(B).

5. [^] See 8 CFR 214.2(h)(7)(i)(B)(1).

6. [^] See 8 CFR 214.2(h)(7)(i)(B)(1).

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

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

9. [^] See 8 CFR 214.2(h)(7)(iv).

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

Chapter 3 - Trainee Program Requirements

A. Training Program Conditions

An H-3 petitioner is required to submit evidence demonstrating that: [1] 

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

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

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

  • The training will benefit the trainee in pursuing a career outside the United States. [2] 

B. Training Program Description

Each petition for a trainee must include a statement which: [3]

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

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

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

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

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

  • Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training. [4] 

C. Training Program Restrictions

A training program for a trainee may not be approved if it: [5] 

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

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

  • Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training; [6] 

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

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

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

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

  • Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student. [7] 

D. Filing

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

Officers will review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable. [9] The table below serves as a quick, non-exhaustive reference guide listing the forms and evidence required when filing a petition for an H-3 trainee.

Trainee (H-3) Petition Forms and Documentation

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

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

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

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

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

All Trainees Except Special Education Exchange Visitors Must Provide:

A detailed written statement from the petitioner containing:

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

  • The structure of the training program;

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

  • The number of hours per week in classroom study; 

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

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

  • The source of any remuneration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hospitals petitioning for externs must also:

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

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

If Requesting Premium Processing:

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

Footnotes


1. [^] See 8 CFR 214.2(h)(7)(ii)(A).

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

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

4. [^] See 8 CFR 214.2(h)(7)(ii)(B).

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

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

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

8. [^] See 8 CFR 214.2(h)(2)(ii)

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

Chapter 4 - Special Education Exchange Visitor Program Requirements

There are requirements for H-3 petitions involving special education exchange visitors that are distinct from H-3 trainees. [1] An H-3 beneficiary in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. No more than 50 visas may be approved in a fiscal year, [2] and participants may remain in the United States for no more than 18 months. [3]

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

  • Education to children with disabilities; and

  • Training and hands-on experience to participants in the special education exchange visitor program. [4]

The petition should include a description of:​

  • The training the alien will receive;​

  • The facility’s professional staff; and​

  • The beneficiary’s participation in the training program. [5]

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

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

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

  • Has extensive prior training and experience teaching children with physical, mental, or emotional disabilities. [6]

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

Officers review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable. [7] The table below serves as a quick, non-exhaustive, reference guide listing the forms and evidence required when filing a petition for an H-3 special education exchange visitor.

Special Education Exchange Visitor H-3 Petition Forms and Documentation

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

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

Filing fee; see USCIS’ website for current fees

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

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

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

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

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

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

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

If Requesting Premium Processing:

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

Footnotes


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

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

Chapter 5 - Family Members of H-3 Beneficiaries

An H-3 nonimmigrant’s spouse and unmarried minor children may accompany the H-3 nonimmigrant to the United States as H-4 nonimmigrants. H-4 dependents of H-3 nonimmigrants are not permitted to work in the United States. [1] 

Footnotes


1. [^] See 8 CFR 214.2(h)(9)(iv).

Chapter 6 - Adjudication

A. Adjudicative Issues

Officers must carefully review each petition for an H-3 trainee to ensure compliance with the intent of the H-3 category to train aliens who will return to their home countries. Unless specifically provided otherwise, officers should apply a “preponderance of the evidence” standard when evaluating eligibility for the benefit sought. [1] The burden of proving eligibility for the benefit sought rests entirely with the petitioner. [2] 

B. Factors to Consider

1. Career Abroad

The description of the training program should include a specific explanation of the position and duties for which the training will prepare the trainee. [3] The trainee must demonstrate that the proposed training will prepare the beneficiary for an existing career outside the United States.

Trainings can be to prepare the trainee for something that is new and unavailable anywhere in the trainee’s country. For instance, a trainee may already be a professional in his or her own right and possess knowledge in the field of proposed training, but will be using the training to further his or her skills or career through company-specific training that a corporate organization makes available in the United States. This could include cases of mid-level and senior-level employees who possess knowledge in their field, but seek to further develop their skills in the proposed field of training. [4] As always, the totality of the evidence is evaluated for each case and all other requirements must be met. [5]

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

2. Instruction

Classroom-based Instruction

In cases where the program is entirely classroom-based, officers should review the evidence to ensure that the petitioner establishes by a preponderance of the evidence that the training cannot be made available in the beneficiary’s home country. [6]

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

Online Instruction

In cases where the program is entirely online, officers must review each case and ensure that the petitioner has met their burden of proof (preponderance of the evidence) demonstrating that the training cannot be made available in the beneficiary’s home country. [8] 

3. Description of the Training Program

The petitioner must specify the type of training, the level of supervision, and the structure of the training program. [9] The petitioner should provide the officer with sufficient information to establish what the beneficiary will actually be doing, and should link the various tasks to specific skills that the beneficiary will gain by performing them.​

On-The-Job Training Hours

The petitioner must specify the number of hours both supervised and unsupervised. [10] The unsupervised work should be minimal and the supervised work should always be oriented toward training. 

Shadowing

There are limited circumstances where a proposed training program that consists largely or entirely of on-the-job training may be approved. Officers should carefully evaluate the totality of the evidence against a preponderance of the evidence standard, including whether a U.S. worker is being displaced and if the on-the-job training would allow the trainee to be placed into a position which is in the normal operation of the business and in which U.S. citizens and legal residents are regularly employed. [11] 

4. Remuneration

The petitioner must indicate the source of remuneration received by the trainee, and explain any training program benefits accrued by the petitioning company. [12] Remuneration may come from any source, domestic or international. When assessing remuneration, the officer may consider whether the salary is in proportion to the training position. [13] 

5. Placement into Normal Operation of Business [14]

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

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

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

  • Training where the beneficiary is trained alongside U.S. workers. [15]

6. Practical Training

Petitioners frequently assert that beneficiaries will spend a certain amount of time in “practical training.” This assertion needs to be supported with a clear explanation of the type and degree of supervision that the beneficiary will receive during such periods. [16] If the officer determines that the “practical training” would actually be productive employment, then the petitioner must establish that it would be incidental to and necessary to the training. [17]

7. Productive Employment

The proportion of time that will be devoted to productive employment must be specified. [18] Productive employment should be minimal because the beneficiary should be training and not performing productive work that displaces U.S. citizens or legal residents. [19] A training program which devotes a significant percentage of time to productive employment should be closely scrutinized. [20]

8. Substantial Training and Expertise in Field of Training

In order to establish that the beneficiary does not already possess substantial training and expertise in the proposed field of training, [21] the petitioner should submit as much information regarding the beneficiary’s credentials as possible. If related to the proposed H-3 training program, copies of the beneficiary’s diplomas and transcripts should be submitted, including any training and education received in the United States, copies of any relevant forms (for example, Certificate of Eligibility for Nonimmigrant (F-1) Student Status-For Academic and Language Students (Form I-20), Certificate of Eligibility for Exchange Visitor (J-1) Status(Form DS-2019)). If possible, letters from prior employers detailing the beneficiary’s work experience should also be submitted. 

9. Sufficiently Trained Staff

In order to establish that it has sufficiently trained staff to provide the training specified in the petition, [22] the petitioner should provide the names and credentials of the persons who will provide the training. The petitioner should specify the amount of time each trainer will spend training the beneficiary. The petitioner should also explain how the trainers’ normal responsibilities will be performed while they are training the beneficiary (this is especially important in cases involving relatively small entities, as larger percentages of their workforces will presumably be diverted in order to provide the training). [23]

10. Unavailability of the Training in Beneficiary’s Country

The petitioner must establish that the trainee cannot obtain the training in his or her country and demonstrate why it is necessary for the trainee to be trained in the United States. [24]

C. Approvals

If all documentary requirements have been met and the petition appears approvable, officers should endorse the action block on the petition. The approval period should coincide with the period of training requested by the petitioner, but only up to 2 years for trainees and up to 18 months for special education training program participants. [25]

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

D. Denials

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

E. Transmittal of Petitions

USCIS sends all approved petitions to the Kentucky Consular Center (KCC). The KCC scans and uploads the documentation into the Consular Consolidated Database (CCD). [26] Consular officers and Customs and Border Protection officers have access to the CCD to verify and review documents. 

Footnotes


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

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

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

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

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

6. [^] See 8 CFR 214.2(h)(7)(ii)(A)(1).

7. [^] See 8 CFR 214.2(h)(1)(ii)(E)(1).

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

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

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

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

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

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

14. [^] See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(F).

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

16. [^] See 8 CFR 214.2(h)(7)(ii)(B)(1) and 8 CFR 214.2(h)(7)(ii)(B)(2)

17. [^] See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(E).

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

19. [^] See 8 CFR 214.2(h)(7)(ii)(B)(2) and 8 CFR 214.2(h)(7)(iii)(E).

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

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

22. [^] See 8 CFR 214.2(h)(7)(iii)(G).

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

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

25. [^] See 8 CFR 214.2(h)(9)(iii)(C) and 8 CFR 214.2(h)(13)(v).

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

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

A. Admissions

H-3 trainees and externs should be admitted for the length of the training program, but for no longer than 2 years. [1] H-3 visa special education exchange visitors should be admitted for the length of the training program, but for no longer than 18 months. 

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

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

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

For example, a husband and wife who come to the United States as a principal H-3 and dependent H-4 spouse may maintain status for one year, and then change status to H-4 and H-3 respectively, as long as the change of status application is properly filed before the principal H-3 has spent the maximum allowable period of stay in the United States. [4]

B. Extensions of Stay

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

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

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

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

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

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

C. Change of Status

Certain categories of nonimmigrants are eligible to change status to that of an H-3 nonimmigrant, including certain students and other temporary visa holders. [6] Such change of status requests must establish that:​

  • The beneficiaries entered the United States legally;​

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

  • The expiration date on the beneficiary’s I-94 has not passed. [7]

Footnotes


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

2. [^] See 8 CFR 214.2(h)(13)(iv).

3. [^] See 8 CFR 214.2(h)(13)(v)

4. [^] Maintenance of H-4 status continues to be tied to the principal’s maintenance of H status. Thus, H-4 dependents may only maintain such status as long as the principal maintains the relevant principal H status.

5. [^] See 8 CFR 214.2(h)(15)(ii)(D)

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

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

Part K - Media Representatives (I)

Chapter 1 - Purpose and Background

A. Purpose

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

  • Press;

  • Radio;

  • Film; and

  • Print. 

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

B. Background

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

C. Legal Authorities

Footnotes


1. [^] See Pub. L. 82-414 (PDF), 66 Stat. 163, 168-169 (June 27, 1952). 

Chapter 2 - Eligibility

A foreign media representative is an alien who:

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

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

  • Seeks to enter or remain in the United States solely to engage in such a vocation. [1]

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

Independent Production Companies [3]

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

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

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

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

Footnotes


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

2. [^] See 8 CFR 214.2(i).

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

Chapter 3 - Distinction between News and Entertainment

A. Entertainment and Advertising

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

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

B. Nonfiction Documentaries

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

C. Intended Use

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

Footnotes


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

2. [^] See 8 CFR 214.2(o)(5). See 8 CFR 214.2(p)(7).

Chapter 4 - Family Members

A foreign information media representative’s spouse and unmarried children (under age 21) may accompany the foreign media representative and be admitted under the “I” nonimmigrant visa classification. [1] If approved, such dependents may attend school in the United States without changing to F-1 nonimmigrant student status. However, the dependents are not authorized to work in the United States while in the foreign information media representative dependent status. 

Footnotes


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

Chapter 5 - Adjudication

A. Extension of Stay or Change of Status

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

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

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

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

  • Is admissible to the United States; [1] and

  • Has not violated any terms or conditions of his or her current nonimmigrant status. [2]

B. Approvals

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

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

Classes of Applicants and Corresponding Codes of Admission

Applicant

Code of Admission

Foreign Information Media Representative (Principal)

I-1

Spouse of a Principal Foreign Information Media Representative

I-1

Child of a Principal Foreign Information Media Representative

I-1

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

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

There is no appeal from a denial of an application to change status or extend stay as a foreign information media representative. [3] In certain situations, USCIS may certify the matter to the Administrative Appeals Office. [4]

Footnotes


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

4. [^] See 8 CFR 103.4.

Part L - Intracompany Transferees (L)

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

Part N - Athletes and Entertainers (P)

Part O - Religious Workers (R)

Part P - NAFTA Professionals (TN)

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

Volume 3 - Protection and Parole

Part A - Protection and Parole Policies and Procedures

Part B - Victims of Trafficking

Part C - Victims of Crimes

Part D - Temporary Protected Status and Deferred Enforced Departure

Part E - Parolees

Part F - Deferred Action

Part G - Humanitarian Emergencies

Volume 4 - Refugees

Volume 5 - Asylees

Volume 6 - Immigrants

Part A - Immigrant Policies and Procedures

Part B - Family-Based Immigrants

Part C - International Orphans and Adoptees

Part D - Immigrants Filing Under Violence Against Women Act

Part E - Employment-Based Immigration

Part F - Employment-Based Classifications

Part G - Investors

Chapter 1 - Purpose and Background

A. Purpose

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

The INA authorizes approximately 10,000 visas each fiscal year for immigrant investors (along with their spouses and unmarried children under the age of 21) who have invested or are actively in the process of investing in a new commercial enterprise and satisfy the applicable job creation requirements. Three thousand of the visas are set aside for immigrants, and their eligible family members, who invest in a new commercial enterprise within a USCIS-designated regional center. Regional centers are organized in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. [2]

The INA establishes a threshold investment amount of $1,000,000 U.S. dollars per investor and provides the ability to raise the amount by regulation. On July 24, 2019, DHS published the EB-5 Immigrant Investor Program Modernization rule, which raised the investment amount for petitions filed on or after November 21, 2019.[3] Beginning October 1, 2024, the investment amount automatically adjusts every 5 years for petitions filed on or after each adjustment’s effective date to an amount determined by a prescribed method and calculation.[4] DHS may also update the investment amount by publishing a technical amendment in the Federal Register.

To encourage investment in new enterprises located in areas that would most benefit from employment creation, the INA also sets aside at least 3,000 of the approximately 10,000 EB-5 visas annually for qualified immigrants who invest in new commercial enterprises that will create employment in targeted employment areas (TEA), which includes rural areas and areas with high unemployment. The minimum amount for investing in a TEA was previously set at 50 percent of the standard minimum investment amount, $500,000 U.S. dollars per investor, but increased to $900,000 for petitions filed on or after November 21, 2019.[5] As with the standard minimum investment amount, beginning on October 1, 2024, and every 5 years thereafter, the TEA amount automatically adjusts for petitions filed on or after each adjustment’s effective date, to be equal to 50 percent of the standard minimum investment amount described above.[6]

The minimum investment amounts by filing date and investment location are:

Petition Filing Date

Minimum Investment Amount[7]

TEA Investment Amount[8]

High Employment Area Investment Amount[9]

Before November 21, 2019

$1,000,000

$500,000

$1,000,000

On or After November 21, 2019[10]

$1,800,000

$900,000

$1,800,000

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

B. Background

1. EB-5 Category Beginnings

In 1990, Congress created the EB-5 immigrant visa category. [11] The legislation envisioned LPR status, initially for a 2-year conditional period, for immigrant investors who established, [12] invested (or were actively in the process of investing) in, and engaged in the management of job-creating or job-preserving for-profit enterprises. [13] Congress placed no restriction on the type of the business if the immigrant investor invested the required capital and directly created at least 10 jobs for U.S. workers.

2. Creation of the Regional Center Program

In 1992, Congress expanded the allowable measure of job creation for the EB-5 category by launching the Immigrant Investor Pilot Program (referred to in this guidance as the Regional Center Program). [14] Congress designed this program to determine the viability of pooling investments in designated regional centers. [15] Currently, the jurisdiction of a regional center is based on the regional center proposal submitted to and approved by USCIS. 

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

3. Program Extensions

Congress initially approved the Regional Center Program as a trial pilot program, set to expire after 5 years. Congress has extended the program several times. [16]

Evolution of EB-5 Program

Act

Statutory Provisions

 

Sections 121(a)-(b) of the Immigration Act of 1990 [17]

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

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

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

Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [18]

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

  • Regional centers designated for the promotion of economic growth. 

  • The Regional Center Program allows foreign investors to claim credit for direct and indirect job creation. [19]

 

Sections 11035-37 of the 21st Century Department of Justice Appropriations Authorization Act [20]

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

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

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

Section 1 of Pub. L. 112-176 (PDF) [21]

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

C. Legal Authorities

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

  • INA 216A8 CFR 216.6 – Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

  • 8 CFR 216.3 – Termination of conditional permanent resident status

  • Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [22]

Footnotes


1. [^] See INA 203(b)(5).

2. [^] See Section 610(a) of the Judiciary Appropriations Act of 1993, Pub. L. 102-395 (PDF, 234 KB), 106 Stat. 1828, 1874 (October 6, 1992) as amended by Section 11037 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 (PDF), 116 Stat. 1758, 1847 (November 2, 2002).

3. [^] See 84 FR 35750 (PDF) (July 24, 2019),

4. [^] See 84 FR 35750 (PDF), 35766-67 (July 24, 2019). See 8 CFR 204.6(f)(1).

5. [^] See INA 203(b)(5)(B)-(C). See 8 CFR 204.6(e)-(f)(2).

6. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(f)(2)).

7. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(f)(1)).

8. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(f)(2)).

9. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(f)(3)).

10. [^] These amounts automatically adjust on October 1, 2024. USCIS will update this Part accordingly.

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

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

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

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

15. [^] See S. Rep. 102-331 at 118 (July 23, 1992).

16. [^] For information on the current expiration date, see the USCIS website

17. [^] See Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).

18. [^] See Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992).

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

20. [^] See Pub. L. 107-273 (PDF), 116 Stat. 1758, 1846 (November 2, 2002).

21. [^] See 126 Stat. 1325, 1325 (September 28, 2012).

22. [^] See Pub. L. 102-395 (PDF, 234 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. 

Chapter 2 - Eligibility Requirements

The immigrant investor category requires three main elements: 

  • An investment of capital; 

  • ​In a new commercial enterprise; 

  • Which creates jobs.

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

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

A. Investment of Capital

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

1. Capital

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

The immigrant investor must establish that he or she is the legal owner of the capital invested [3] and has obtained the capital through lawful means. Any assets acquired directly or indirectly by unlawful means, such as criminal activity, will not be considered capital. [4] To establish that the capital was obtained through lawful means, the immigrant investor’s petition must include (if applicable): 

  • Foreign business registration records; 

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

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

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

Promissory Notes 

Capital can include the immigrant investor’s promise to pay (a promissory note), as long as the immigrant investor is personally and primarily liable for the promissory note debt and his or her assets adequately secure the note. Any security interest must be perfected [6] to the extent provided for by the jurisdiction in which the asset is located. [7] Further, the assets securing the promissory note:

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

  • Must be specifically identified as securing the promissory note; and

  • Must be fully amenable to seizure by a U.S. noteholder. [8] 

The fair market value of a promissory note depends on its present value, not the value at any different time. In addition, to qualify as capital, nearly all of the money due under a promissory note must be payable within 2 years, without provisions for extensions.[9] 

Using Loan Proceeds as Capital

Proceeds from a loan may qualify as investment capital provided the requirements placed on indebtedness are satisfied. [10] 

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

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

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

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

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

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

2. Investment

The immigrant investor is required to invest his or her own capital. The petitioner must document the path of the funds to establish that the investment was made, or is actively in the process of being made, with the immigrant investor’s own funds. [11] 

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

To qualify as an investment, the immigrant investor must actually place his or her capital at risk. The mere intent to invest is not sufficient. [13] 

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

Guaranteed Returns 

If the immigrant investor is guaranteed a return, or a rate of return on all or a portion of his or her capital, then the amount of any guaranteed return is not at risk. [14] For the capital to be at risk there must be a risk of loss and a chance for gain. 

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

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

Redemption Language

The regulatory definition of “invest” excludes capital contributions that are “in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement.” [16] 

An agreement evidencing a preconceived intent to exit the investment as soon as possible after removing conditions on permanent residence may constitute an impermissible debt arrangement. [17] Funds contributed in exchange for a debt arrangement do not constitute a qualifying contribution of capital. [18] In general, the petitioner may not enter into the agreement knowing that he or she has a willing buyer at a certain time and for a certain price. [19] 

Any agreement between the immigrant investor and the new commercial enterprise that provides the investor with a contractual right to repayment is an impermissible debt arrangement. In such a case, the investment funds do not constitute a qualifying contribution of capital. [20] Mandatory redemptions and options exercisable by the investor are two examples of agreements where the investor has a right to repayment. The impermissibility of such an arrangement cannot be remedied with the addition of other requirements or contingencies, such as conditioning the repurchase of the securities on the availability of funds; the delay of the repurchase until a date in the future (including after the adjudication of the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829)); or the possibility that the investor might not exercise the right. In other words, repayment does not need to be guaranteed in order to be impermissible. It is the establishment of the investor’s right to demand a repurchase, regardless of the new commercial enterprise’s ability to fulfill the repurchase, that constitutes an impermissible debt arrangement. [21] 

The following table describes certain characteristics that might be present in agreements and explains whether their inclusion creates an impermissible debt arrangement.

Characteristics of Redemption Provisions

Type of Provision

Description

Impermissible Agreement?

Mandatory redemptions

Arrangements that require the new commercial enterprise to redeem all or a portion of the petitioner’s equity at a specified time or upon the occurrence of a specified event (for example, once the conditions are removed on the petitioner’s permanent resident status) and for a specified price (whether fixed or subject to a specified formula).

USCIS considers this an impermissible debt arrangement. Such impermissible obligations are not subject to the discretion of the new commercial enterprise (although it may have some discretion regarding the timing and manner in which the redemption is performed).

Options exercisable by the investor

Arrangements that grant the petitioner the option to require the new commercial enterprise to redeem all or a portion of his or her equity at a specified time or upon the occurrence of a specified event (for example, once the conditions are removed on the petitioner’s permanent resident status) and for a specified price (whether fixed or subject to a specified formula). 

USCIS considers this an impermissible debt arrangement.

Option exercisable by the new commercial enterprise

A redemption agreement between the immigrant investor and the new commercial enterprise that does not provide the investor with a right to repayment.

One example of such an agreement is a discretionary option held by the new commercial enterprise to repurchase investor shares. These options are typically structured similarly to options exercisable by the investor, except that the option is held and may be exercised by the new commercial enterprise. When executed, these options require an investor to sell all or a portion of his or her ownership interest back to that entity.

USCIS generally does not consider these arrangements to be impermissible debt arrangements.[22] 

However, such an option may be impermissible if there is evidence the parties construct it in a manner that effectively converts it to a mandatory redemption or an option exercisable by the investor(considered a debt arrangement). For example, an arrangement would be impermissible if ancillary provisions or agreements obligate the new commercial enterprise to either (a) exercise the option (at a specified time, upon the occurrence of a specified event, or at the request of the investor) or (b) if it chooses not to exercise the option, liquidate the assets and refund the investor a specific amount.

Business Activity

An immigrant investor must provide evidence of the actual undertaking of business activity. Merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an immigrant investor has placed his or her capital at risk. [23] Without some evidence of business activity, no assurance exists that the funds will be used to carry out the business of the commercial enterprise. [24] 

Made Available

The full amount of the investment must be made available to the business​(​es​)​ most closely responsible for creating the employment upon which the petition is base​d​. [25] ​In the regional center context, the immigrant investor must establish that the capital was ​invested into the new commercial enterprise and ​that the full amount ​was subsequently made available to the job-creating entity or entities, if separate.​ [26] 

​In cases with a separate job-creating entity or entities, ​the payment of ​​administrative fees, management fees, attorneys’ fees, finders’ fees, syndication fees, ​and​ other types of expenses or costs ​by ​the new commercial enterprise ​that erode the amount of capital ​made available to the job​-​creating entity ​do not count toward the minimum required investment amount. [27] The payment of these fees​ and expenses​ ​must ​be in addition to the ​minimum required​ capital investment​ amount​.

Sole Proprietors and Funds in Bank Accounts

A non-regional center investor who is operating a new commercial enterprise as a sole proprietor cannot consider funds in his or her personal bank account as capital committed to the new commercial enterprise. Funds in a personal bank account are not necessarily committed to the new commercial enterprise. The funds must be in business bank accounts. [28] However, even a deposit into a business account over which petitioner exercises sole control, without more, may not satisfy the at-risk requirement. [29] 

Escrow Accounts

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

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

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

An immigrant investor’s funds may be held in escrow within the United States to avoid any evidentiary issues that may arise with respect to issues such as significant currency fluctuations [30] and foreign capital export restrictions. 

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

When adjudicating the immigrant investor’s petition to remove conditions, [31] USCIS requires evidence verifying that the escrowed funds were released and that the investment was sustained in the new commercial enterprise for the period of the immigrant investor’s residence in the United States.

At-Risk Requirement Before the Job Creation Requirement is Satisfied

The full amount of capital must be used to undertake business activity that results in the creation of jobs. [32] Before the job creation requirement is met, the following at-risk requirements apply:

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

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

  • ​Business activity must actually be undertaken; and 

  • ​The full amount of the investment must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. [33] 

At-Risk Requirement After the Job Creation Requirement is Satisfied

Once the job creation requirement has been met, the capital is properly at risk if it is used in a manner related to engagement in commerce (in other words, the exchange of goods or services) consistent with the scope of the new commercial enterprise’s ongoing business. [34] After the job creation requirement is met, the following at-risk requirements apply:

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

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

  • Business activity must actually be undertaken. [35] 

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

Officers must determine whether further deployment has taken place, or will take place, within a commercially reasonable time and within the scope of the new commercial enterprise’s ongoing business. [36] 

3. Required Amount of Investment

The immigrant investor must invest at least the standard minimum investment amount in capital in a new commercial enterprise that creates not fewer than 10 jobs for U.S. workers. An exception exists if the immigrant investor invests his or her capital in a new commercial enterprise that is principally doing business in and creates jobs in a targeted employment area. In such a case, the immigrant investor must invest a minimum of 50 percent of the standard minimum investment amount in capital.

This means that the present fair market value, in U.S. dollars, of the immigrant investor’s lawfully-derived capital must be at least $1,000,000, or $500,000 if investing in a targeted employment area for petitions filed before November 21, 2019.[37] For petitions filed on or after November 21, 2019, those amounts are $1,800,000 or $900,000 respectively, and automatically increase October 1, 2024, and every 5 years thereafter.[38]

An immigrant investor may diversify his or her investment across a portfolio of businesses or projects, but only if the minimum investment amount is first placed in a single new commercial enterprise. In such a case, it is necessary to show how eligibility has been established (for example, the minimum investment amount, evidence of an at-risk investment,[39] and job creation) with respect to each job-creating entity at the time of filing.

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

For example, for a petition filed before November 21, 2019, based on an investment in an area in which the minimum investment amount is $1,000,000, the non-regional center investor can satisfy the statute by investing in a commercial enterprise that deploys $600,000 of the investment toward one business that the commercial enterprise wholly owns, and $400,000 of the investment toward another business that the commercial enterprise wholly owns.[40] In this example, the two wholly owned businesses would have to create an aggregate of 10 new jobs between them. However, a non-regional center investor cannot qualify by investing $600,000 in one commercial enterprise and $400,000 in a separate commercial enterprise, since these are not wholly owned by a single commercial enterprise.

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

4. Lawful Source of Funds

The immigrant investor must demonstrate by a preponderance of the evidence that the capital invested, or actively in the process of being invested, in the new commercial enterprise was obtained through lawful means. [41] Any assets acquired directly or indirectly by unlawful means, such as criminal activity, are not considered capital. [42] In establishing that the capital was acquired through lawful means, the immigrant investor must provide evidence demonstrating the direct and indirect source of his or her investment capital. [43] 

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

  • Foreign business registration records; 

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

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

  • Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past 15 years. [44] 

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

  • Corporate, partnership, or other business entity annual reports;

  • Audited financial statements;

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

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

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

  • Evidence, other than tax returns, [45] of payment of individual income tax, such as an individual income tax report or payment certificate, on the following: 

    • Wages and salaries; 

    • Income from labor and service or business activities;

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

    • Royalties or income from patents or special rights; 

    • Interest, dividends, and bonuses;

    • Rental income; 

    • Income from property transfers; 

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

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

  • Evidence identifying any other source of capital. 

5. Targeted Employment Area

A targeted employment area (TEA) is a rural area or an area that has experienced high unemployment.[46] A rural area is any area other than an area within a standard metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more based on the most recent decennial census of the United States.[47] A high unemployment area is an area that has experienced unemployment of at least 150 percent of the national average rate.[48]

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

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

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

  • Any jobs directly created by the new commercial enterprise;

  • ​Any expenditure of capital related to the creation of jobs;

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

  • ​The new commercial enterprise’s assets used in the creation of jobs.[49]

Investments through regional centers allow the immigrant investor to seek to establish indirect job creation. In these cases, principally doing business will apply to the job-creating entity rather than the new commercial enterprise. The job-creating entity must be principally doing business in the TEA for the lower capital investment amount to apply.[50]

To demonstrate that the area of the investment is a TEA, the immigrant investor must demonstrate that the TEA meets the statutory and regulatory criteria by submitting:

  • Evidence that the area is not located within any MSA as designated by the Office of Management and Budget, nor within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States;[51]

  • For petitions filed before November 21, 2019, either:

    • A letter from the state government designating a geographic or political subdivision located outside a rural area but within its own boundaries as a high unemployment area;[52] or

    • Unemployment data for the relevant MSA or county;[53] or

  • For petitions filed on or after November 21, 2019, either:

    • Unemployment data for the relevant MSA, specific county within an MSA, county in which a city or town with a population of 20,000 or more is located, or the city or town with a population of 20,000 or more which is outside an MSA;[54] or

    • A description of the boundaries and unemployment statistics that allows USCIS to make a case-specific designation as an area of high unemployment.[55] The area must consist of the census tract or contiguous census tract(s) in which the new commercial enterprise is principally doing business, and may also include any or all census tracts directly adjacent to such census tract(s).[56] The immigrant investor must demonstrate that the weighted average of the unemployment rate for the subdivision (that is, the area comprised of multiple census tracts), based on the labor force employment measure for each census tract, is at least 150 percent of the national average unemployment rate.[57]

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

Targeted Employment Area (TEA) Analysis

If the Investment of Capital…

Then…

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

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

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

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

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

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

A State’s Designation of a Targeted Employment Area Before November 21, 2019

A state government’s designation of a geographic or political subdivision within its boundaries as a TEA will not satisfy evidentiary requirements for petitions filed on or after November 21, 2019. For petitions filed before November 21, 2019, a state government could designate a geographic or political subdivision within its boundaries as a TEA based on high unemployment. Before the state could make such a designation, an official of the state must have notified USCIS of the agency, board, or other appropriate state governmental body that would be delegated the authority to certify that the geographic or political subdivision was a high unemployment area.[58] The state was then able to send a letter from the authorized body of the state certifying that the geographic or political subdivision of the MSA or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business had been designated a high unemployment area.[59]

Consistent with the regulations in effect before November 21, 2019, USCIS deferred to state determinations of the appropriate boundaries of a geographic or political subdivision that constitutes the TEA. However, for all TEA designations, USCIS still ensured compliance with the statutory requirement that the proposed area designated by the state had an unemployment rate of at least 150 percent above the national average. To do this, USCIS reviewed state determinations of the unemployment rate and assessed the method or methods by which the state authority obtained the unemployment statistics.

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

There has never been a provision allowing a state to designate a rural area.

B. Comprehensive Business Plan

A comprehensive business plan should contain, at a minimum, a description of the business, its products or services (or both), and its objectives. [60] 

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

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

Most importantly, the business plan must be credible. [61] 

USCIS reviews business plans in their totality. An officer must determine if it is more likely than not that the business plan is comprehensive and credible. A business plan is not required to contain all of the detailed elements, but the more details the business plan contains, the more likely it is that the plan will be considered comprehensive and credible. [62] 

C. New Commercial Enterprise

A new commercial enterprise is any commercial enterprise established after November 29, 1990. [63] Therefore, the immigrant investor can invest the required amount of capital in a commercial enterprise established after November 29, 1990, provided the remaining eligibility criteria are met.

A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business. [64] This broad definition is consistent with the realities of the business world and the many different forms and structures that job-creating activities can have.

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

  • Sole proprietorship;

  • Partnership (whether limited or general); 

  • Holding company; 

  • Joint venture; 

  • Corporation; 

  • Business trust; or

  • Other entity, which may be publicly or privately owned. [65] 

A commercial enterprise can consist of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Noncommercial activities, including owning and operating a personal residence, do not qualify. [66] 

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

1. Enterprise Established On or Before November 29, 1990

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

Purchase of an Existing Business that is Restructured or Reorganized

The immigrant investor can invest in a business that existed on or before November 29, 1990, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. [67] Cosmetic changes to the décor, a new marketing strategy, or a simple change in ownership do not qualify as restructuring. [68] 

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

Expansion of an Existing Business

The immigrant investor can invest in a business that existed on or before November 29, 1990, provided a substantial change in the net worth or number of employees results from the investment of capital. [69] 

Substantial change is defined as a 40 percent increase either in the net worth or in the number of employees, so that the new net worth or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. [70] 

Investment in a new commercial enterprise in this manner does not exempt the immigrant investor from meeting the requirements relating to the amount of capital that must be invested and the number of jobs that must be created. [71] 

2. Pooled Investments in Original EB-5 Program

A new commercial enterprise may be used as the basis for the petitions of more than one non-regional center immigrant investor. Each non-regional center immigrant investor must invest the required amount of capital and each immigrant investor’s investment must result in the required number of jobs. Furthermore, the new commercial enterprise can have owners who are not immigrant investors provided that the sources of all capital invested are identified and all invested capital has been derived by lawful means.[72] 

3. Establishment of New Commercial Enterprise

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

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

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

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

    This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees. [73] 

4. Investment in New Commercial Enterprise

To show that the immigrant investor has committed the required amount of capital to the new commercial enterprise, the evidence presented may include, but is not limited to, the following:

  • Bank statements showing amounts deposited in U.S. business accounts for the enterprise;

  • Evidence of assets which have been purchased for use in the U.S. enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;

  • Evidence of property transferred from abroad for use in the U.S. enterprise, including U.S. Customs and Border Protection commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;

  • Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder’s request; or 

  • Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing secured by the immigrant investor’s assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable. [74] 

5. Engagement in Management of New Commercial Enterprise

The immigrant investor must be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation.[75]

To show that the immigrant investor is or will be engaged in the exercise of day-to-day managerial control or policy formulation, the immigrant investor must submit:

  • A statement of the position title that the immigrant investor has or will have in the new enterprise and a complete description of the position’s duties;[76]

  • Evidence that the immigrant investor is a corporate officer or a member of the corporate board of directors;[77]

  • For petitions filed before November 21, 2019, if the new enterprise is a partnership, either limited or general, evidence that the immigrant investor is engaged in either direct management or policymaking activities. The immigrant investor is sufficiently engaged in the management of the new commercial enterprise if the investor is a limited partner and the limited partnership agreement provides the investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act;[78] or

  • For petitions filed on or after November 21, 2019, evidence that the petitioner is engaged in policymaking activities, including evidence that the petitioner is an equity holder in the new commercial enterprise and the organizational documents of the new commercial enterprise provide the petitioner with certain rights, powers, and duties normally granted to equity holders of the new commercial enterprise’s type of entity in the jurisdiction in which the new commercial enterprise is organized.[79]

D. Creation of Jobs

The creation of jobs for U.S. workers is a critical element of EB-5. It is not enough that the immigrant investor invests funds into the U.S. economy. The investment of the required amount of capital must be in a new commercial enterprise that creates [80] at least 10 jobs for qualifying employees. It is important to recognize that while the investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. [81] 

Example: Non-Regional Center 

Ten non-regional center immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs to unrelated third parties, purchase the land, develop the plans, obtain the licenses, build the structure, maintain the grounds, staff the hotel, as well as many other types of expenses involved in the development and operation of a new hotel.

The non-regional center immigrant investor’s capital can be used to pay part or all of these expenses. Each non-regional center immigrant investor’s investment of capital helps the new commercial enterprise (the new hotel) create 10 jobs. The 10 immigrants’ investments must result in the new hotel’s creation of 100 jobs (10 jobs for each investor’s capital investment) for qualifying employees. [82] 

1. Bridge Financing

A developer or principal of a new commercial enterprise, either directly or through a separate job-creating entity, may use interim, temporary, or bridge financing, in the form of either debt or equity, prior to receipt of immigrant investor capital. If the project starts based on the interim or bridge financing prior to receiving immigrant investor capital and subsequently replaces that financing with immigrant investor capital, the new commercial enterprise may still receive credit for the job creation under the regulations.

Generally, the replacement of temporary or bridge financing with immigrant investor capital should have been contemplated prior to acquiring the original temporary financing. However, even if the immigrant investor financing was not contemplated prior to acquiring the temporary financing, as long as the financing to be replaced was contemplated as short-term temporary financing that would be subsequently replaced by more permanent long-term financing, the infusion of immigrant investor financing could still result in the creation of, and credit for, new jobs.

For example, if traditional financing originally contemplated to replace the temporary financing is no longer available to the commercial enterprise, a developer is not precluded from using immigrant investor capital as an alternative source. Immigrant investor capital may replace temporary financing even if this arrangement was not contemplated prior to obtaining the bridge or temporary financing.

The full amount of the immigrant’s investment must be made available to the business or businesses most closely responsible for creating the jobs upon which eligibility is based. In the regional center context if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be invested first in the new commercial enterprise and then made available to the job-creating entity or entities. [83] 

2. Multiple Job-Creating Entities

If invested in a single new commercial enterprise and where the offering and organizational documents provide, an investor’s full investment may be distributed to more than one job-creating entity in a portfolio investment strategy. The record must demonstrate that the new commercial enterprise will create the requisite jobs through the portfolio of projects. In addition, each investor must demonstrate that the full amount of money is made available to the business(es) most closely responsible for creating the employment upon which the petition is based, which may be one or multiple job-creating entities in a portfolio.

3. Full-Time Positions for Qualifying Employees

The investment into a new commercial enterprise must create full-time positions for not fewer than 10 qualifying employees. [84] An employee is defined as a person who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Regional Center Program, an employee also means a person who provides services or labor in a job that has been created indirectly through investment in the new commercial enterprise. [85] 

Qualifying Employee

For the purpose of the job creation requirement, the employee must be a qualifying employee. A qualifying employee is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized for employment in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the immigrant investor, the immigrant investor’s spouse, sons, daughters, or any nonimmigrant. [86] 

Full-Time Employment

For the purpose of the job creation requirement, the position must be a full-time employment position. [87] Full-time employment is defined as employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. [88] In the case of the Regional Center Program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week. 

Two or more qualifying employees can fill a full-time employment position in a job sharing arrangement. Job sharing is permissible so long as the 35 working hours per week requirement is met. However, the definition of full-time employment does not include combinations of part-time positions, even if those positions when combined meet the hourly requirement per week. [89] 

A job-sharing arrangement whereby two or more qualifying employees share a full-time position shall count as full-time employment provided the hourly requirement per week is met. To demonstrate that a full-time position is shared by more than one employee, the following evidence, among others, may be relevant: 

  • A written job-sharing agreement; 

  • A weekly schedule that identifies the positions subject to a job sharing arrangement and the hours to be worked by each employee under the job sharing arrangement; and

  • Evidence of the sharing of the responsibilities or benefits of a permanent, full-time position between the employees subject to the job sharing arrangement.

Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature. 

4. Measuring Job Creation

The immigrant investor seeking to enter the United States through the EB-5 Program must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees. There are three methods of measuring job creation depending on the new commercial enterprise and where it is located. 

Troubled Business

The U.S. economy benefits when the immigrant investor’s capital helps preserve the troubled business’s existing jobs. If the immigrant investor is investing in a new commercial enterprise that is a troubled business, he or she must show that the number of existing employees in the troubled business is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years. [90] This applies in the regional center context as well. 

The troubled business regulatory provision does not decrease the number of jobs required. An immigrant investor who invests in a troubled business must still demonstrate that 10 jobs have been preserved, created, or some combination of the two. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would satisfy the job creation requirement. 

The regulatory definition of a troubled business is a business that has: 

  • Been in existence for at least 2 years;

  • Has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the 12-month or 24-month period prior to the priority date on the Immigrant Petition by Alien Investor (Form I-526); and

  • Had a loss for the same period at least equal to 20 percent of the troubled business’s net worth prior to the loss. [91] 

For purposes of determining whether or not the troubled business has been in existence for 2 years, successors-in-interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.[92] 

New Commercial Enterprise Not Located Within a Regional Center

For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees. [93] 

New Commercial Enterprise Located Within a Regional Center

Full-time positions can be created either directly or indirectly by a new commercial enterprise located within a designated regional center. [94] The general EB-5 program requirements still apply to investors investing in new commercial enterprises in the regional center context except that they may rely on indirect job creation. Employees filling indirect jobs do not work directly for the new commercial enterprise. Immigrant investors must use reasonable methodologies to establish the number of indirect jobs created.[95] 

Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Indirect jobs are those that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For example, indirect jobs can include, but are not limited to, those held by employees of the job-creating entity (when the job-creating entity is not the new commercial enterprise) as well as employees of producers of materials, equipment, or services used by the new commercial enterprise or job-creating entity. 

In addition, a sub-set of indirect jobs, known as induced jobs, are created when the new direct and indirect employees spend their earnings on consumer goods and services. Indirect jobs can qualify and be counted as jobs attributable to a new commercial enterprise associated with a regional center, based on reasonable methodologies, even if the jobs are located outside of the geographic boundaries of a regional center.

Due to the nature of accepted job creation modeling practices, USCIS relies upon reasonable economic models to determine that it is more likely than not that the indirect jobs are created. USCIS may request additional evidence that the indirect jobs created, or to be created, are full time. USCIS may also request additional evidence to verify that the direct jobs (those held at the new commercial enterprise) will be or are full-time and permanent, which may include a review of W-2 forms or similar evidence. 

Multiple Investors

When there are multiple investors in a new commercial enterprise, the total number of full-time positions created for qualifying employees will be allocated only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis for their immigrant petition. An allocation does not need to be made among persons not seeking classification through the employment based fifth preference category. Also, jobs need not be allocated to non-natural persons, such as corporations investing in a new commercial enterprise. [96] Full-time positions will be allocated to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents. [97] 

In general, multiple immigrant investors may not claim credit for the same job. An immigrant investor may not seek credit for the same specifically identified job position that has already been allocated to another immigrant investor in a previously approved case. 

5. Evidence of Job Creation

To show that a new commercial enterprise will create not fewer than 10 full-time positions for qualifying employees, an immigrant investor must submit the following evidence:

  • Documentation consisting of photocopies of relevant tax records, Employment Eligibility Verification (Form I-9), or other similar documents for 10 qualifying employees, if such employees have already been hired; or

  • A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 qualifying employees will result within the next 2 years and the approximate dates employees will be hired. [98] 

The 2-year period [99] is deemed to begin 6 months after adjudication of Form I-526. The business plan filed with the immigrant petition should reasonably demonstrate that the requisite number of jobs will be created by the end of this 2-year period. 

Troubled Business

In the case of a troubled business, a comprehensive business plan must accompany the other required evidentiary documents. [100] 

Regional Center Investors

In the case of a new commercial enterprise within a regional center, the direct or indirect job creation may be demonstrated by the types of documents identified in this section along with reasonable methodologies. [101] If a regional center immigrant investor seeks to rely on jobs that will be created to satisfy the job creation requirement, a comprehensive business plan is required. 

Additionally, if the regional center immigrant investor seeks to demonstrate job creation through the use of an economic input-output model, USCIS requires the investor to demonstrate that the methodology is reasonable. For example, if the inputs into the input-output model reflect jobs created directly at the new commercial enterprise or job-creating entity, USCIS requires the investor to demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when the jobs will be created. 

If the inputs into the model reflect expenditures, USCIS requires the investor to demonstrate that the expenditures input is reasonable. Relevant documentation may include receipts and other financial records for expenditures that have occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur. 

If the inputs into the model reflect revenues, USCIS requires the investor to demonstrate that the revenues input is reasonable. Relevant documentation may include tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues that will occur.

In reviewing whether an economic methodology is reasonable, USCIS analyzes whether the multipliers and assumptions about the geographic impact of the project are reasonable. For example, when reviewing the geographic level of the multipliers used in an input-output model, the following factors, among others, may be considered:

  • The area’s demographic structure (for example, labor pool supply, work force rate, population growth, and population density); 

  • The area’s contribution to supply chains of the project; and

  • Connectivity with respect to socioeconomic variables in the area (for example, income level and purchasing power).

6. Rescission of Guidance on Tenant Occupancy Methodology

As of May 15, 2018, USCIS rescinded its prior guidance on tenant occupancy methodology. That update applies to all USCIS employees with respect to determinations of all Immigrant Petitions by Alien Investors (Form I-526), Petitions by Investors to Remove Conditions on Permanent Resident Status (Form I-829), and Applications for Regional Center Designation Under the Immigrant Investor Program (Form I-924) filed on or after that date. USCIS also gives deference to Form I-526 and Form I-829 petitions directly related to projects approved before May 15, 2018, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination. [102] 

Previously, on December 20, 2012, USCIS had issued policy guidance defining the criteria to be used in the adjudication of applications and petitions relying on tenant occupancy to establish indirect jobs. [103] In November 2016, USCIS published consolidated policy guidance on immigrant investors in this Policy Manual, including guidance on the tenant occupancy methodology. That guidance provided that investors could (1) map a specific amount of direct, imputed, or subsidized investment to new jobs, or (2) use a facilitation-based approach to demonstrate the project would remove a significant market-based constraint.

The first method requires mapping a specific amount of direct, imputed, or subsidized investment to new jobs such that there is an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. In practice, however, the construction of standard office or retail space alone does not lead to a sufficient connection for this type of mapping such that tenant jobs can be credited to the new commercial enterprise. The existence of numerous other factors, such as the identity of future tenants and demand for that type of business, makes it difficult to relate individual jobs to a specific space. 

The second method looks at whether the investment removes a significant market-based constraint, referred to in the 2012 guidance as the “facilitation based approach.” In providing this approach as an option, USCIS explicitly allowed applicants and petitioners to avoid having to establish an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. As of May 15, 2018, however, USCIS determined that that allowance was ill-advised, because a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two. Reliance on a showing of constraint on supply or excess of demand by itself does not establish a causal link between specific space and a net new labor demand such that it would overcome the lack of a sufficient nexus. 

Moreover, allowing applicants and petitioners to use prospective tenant jobs as direct inputs into regional growth models to generate the number of indirect and induced jobs that result from the credited tenant jobs leads to a more attenuated and less verifiable connection to the investment. There is also no reasonable test to confirm that jobs claimed through either tenant-occupancy methodology are new rather than relocated jobs such that they should qualify as direct inputs in the first place. 

In sum, tenant-occupancy methodologies described in the 2012 Operational Guidance and previously incorporated into the Policy Manual result in a connection or nexus between the investment and jobs that is too tenuous [104] and thus are no longer considered reasonable methodologies or valid forecasting tools under the regulations. [105] 

E. Burden of Proof

The petitioner or applicant must establish each element by a preponderance of the evidence. [106] The petitioner or applicant does not need to remove all doubt. Even if an officer has some doubt as to the truth, if the petitioner or applicant submits relevant, probative, and credible evidence that leads to the conclusion that the claim is more likely than not (that is, probably true), the petitioner or applicant has satisfied the preponderance of evidence standard.

F. Priority Dates

Under certain circumstances, the petitioner may use the priority date of a previously approved Immigrant Petition by Alien Investor (Form I-526) for purposes of a subsequent Form I-526 filed on or after November 21, 2019, for which the petitioner qualifies.[107] 

Footnotes


1. [^] See 8 CFR 204.6(e).

2. [^] See 8 CFR 204.6(e).

3. [^] See Matter of Ho (PDF), 22 I&N Dec. 206 (Assoc. Comm. 1998).

4. [^] See INA 203(b)(5). See 8 CFR 204.6(e).

5. [^] See 8 CFR 204.6(j)(3).

6. [^] Perfecting a security interest relates to the additional steps required to make a security interest effective against third parties or to retain its effectiveness in the event of default by the grantor of the security interest.

7. [^] See Matter of Hsiung (PDF), 22 I&N Dec. 201, 202 (Assoc. Comm. 1998).

8. [^] See Matter of Hsiung (PDF), 22 I&N Dec. 201, 202-03 (Assoc. Comm. 1998).

9. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 193-94 (Assoc. Comm. 1998).

10. [^] See 8 CFR 204.6(e).

11. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 195 (Assoc. Comm. 1998).

12. [^] See 8 CFR 204.6(e).

13. [^] See 8 CFR 204.6(j)(2).

14. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 180-188 (Assoc. Comm. 1998).

15. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 184 (Assoc. Comm. 1998).

16. [^] The full definition of invest is provided at 8 CFR 204.6(e).

17. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 183-188 (Assoc. Comm. 1998).

18. [^] EB-5 regulations contain two basic requirements in order to have a legitimate qualifying investment: (1) 8 CFR 204.6(e) defines “invest” to require a qualifying (that is, non-prohibited) contribution of capital; and (2) 8 CFR 204.6(j)(2) requires a qualifying use of such capital (placing such capital at risk for the purpose of generating a return). In order to satisfy the evidentiary requirement set forth at 8 CFR 204.6(j)(2), an investor must first properly contribute capital in accordance with the definition of invest at 8 CFR 204.6(e). If the contribution of capital fails to meet the definition of invest, it is not a qualifying investment, even if it is at risk for the purpose of generating a return. 

19. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 186-187 (Assoc. Comm. 1998).

20. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 188 (Assoc. Comm. 1998). Matter of Izummi (PDF) addressed redemption agreements in general, and not only those where the investor holds the right to repayment. USCIS generally disfavors redemption provisions that indicate a preconceived intent to exit the investment as soon as possible, and notes that one district court has drawn the line at whether the investor holds the right to repayment. See Chang v. USCIS, 289 F.Supp.3d 177 (D.D.C. Feb. 7, 2018). 

21. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169 (185-86) (Assoc. Comm. 1998).

22. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 188 (Assoc. Comm. 1998). See Chang v. USCIS, 289 F.Supp.3d 177 (D.D.C. Feb. 7, 2018).

23. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). 

24. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

25. [^] See Matter of Izummi (PDF), 22 I&N 169, 179, 189 (Assoc. Comm. 1998). 

26. [^] A job-creating entity is most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi (PDF), 22 I&NDec. 169, 179 (Assoc. Comm. 1998). In some circumstances, the new commercial enterprise may also be the job-creating entity.

27. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 178-79 (Assoc. Comm. 1998).

28. [^] See 8 CFR 204.6(j)(2).

29. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

30. [^] When funds are held in escrow outside the United States, USCIS reviews currency exchange rates at the time of adjudicating the Form I-526 petition to determine if it is more likely than not that the petitioner will make the minimum qualifying capital investment. With the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829), USCIS reviews the evidence in the record, including currency exchange rates at the time of transfer, to determine that, when the funds were actually transferred to the United States, the petitioner actually made the minimum qualifying capital investment.

31. [^] See Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829).

32. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi (PDF), 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

33. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi (PDF), 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

34. [^] See 8 CFR 204.6(e) for the definition of commercial enterprise.

35. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi (PDF), 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

36. [^] See 8 CFR 103.2(b)(1) (A petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication).

37. [^] See INA 203(b)(5)(C). See 8 CFR 204.6(e)-(f).

38. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(f)).

39. [^] The full amount of money must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).

40. [^] See 8 CFR 204.6(e).

41. [^] See 8 CFR 204.6(j)(3). See Matter of Ho (PDF), 22 I&N Dec. 206, 210-11 (Assoc. Comm. 1998).

42. [^] See 8 CFR 204.6(e).

43. [^] See 8 CFR 204.6(e) and 8 CFR 204.6(j)(3).

44. [^] See 8 CFR 204.6(j)(3).

45. [^] As required under 8 CFR 204.6(j)(3)(ii).

46. [^] See INA 203(b)(5)(B)(ii).

47. [^] See INA 203(b)(5)(B)(iii). See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(e)).

48. [^] See INA 203(b)(5)(B)(ii). See 8 CFR 204.6(e).

49. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 174 (Assoc. Comm. 1998).

50. [^] See 8 CFR 204.6(j)(6). See Matter of Izummi (PDF), 22 I&N Dec. 169, 171-73 (Assoc. Comm. 1998).

51. [^] See 8 CFR 204.6(j)(6)(i).

52. [^] See 8 CFR 204.6(j)(6)(ii)(B) (PDF) (in effect before November 21, 2019).

53. [^] See 8 CFR 204.6(j)(6)(ii)(A) (PDF) (in effect before November 21, 2019).

54. [^] See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(j)(6)(ii)(A)).

55. [^] USCIS makes designations as part of the petition adjudication and does not issue separate designation notices. See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(j)(6)(ii)(A)).

56. [^] See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(i)). See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(j)(6(ii)(B)).

57. [^] See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(i)).

58. [^] See 8 CFR 204.6(i) (PDF) (in effect before November 21, 2019).

59. [^] See 8 CFR 204.6(j)(6)(ii)(B) (PDF) (in effect before November 21, 2019).

60. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

61. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

62. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

63. [^] See 8 CFR 204.6(e).

64. [^] See 8 CFR 204.6(e).

65. [^] See 8 CFR 204.6(e).

66. [^] See 8 CFR 204.6(e).

67. [^] See 8 CFR 204.6(h)(2)

68. [^] See Matter of Soffici (PDF), 22 I&N Dec. 158 (Assoc. Comm. 1998).

69. [^] See 8 CFR 204.6(h)(3).

70. [^] See 8 CFR 204.6(h)(3).

71. [^] See 8 CFR 204.6(h)(3).

72. [^] See 8 CFR 204.6(g)

73. [^] See 8 CFR 204.6(j)-(j)(1).

74. [^] See 8 CFR 204.6(j)(2)(i)-(v)

75. [^] See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(j)(5)).

76. [^] See 8 CFR 204.6(j)(5)(i).

77. [^] See 8 CFR 204.6(j)(5)(i).

78. [^] See 8 CFR 204.6(j)(5)(iii) (PDF) (as in effect before November 21, 2019). As explained in the EB-5 Immigrant Investor Program Modernization Notice of Proposed Rulemaking (NPRM), 82 FR 4738 (PDF) (Jan. 13, 2017), clarifications were necessary to conform this clause—as well as other parts of 8 CFR 204.6(j)(5)—with amendments made by the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 (PDF) (November 2, 2002) to INA 203(b)(5). In particular, the amendment made by Public Law 107-273 to INA 203(b)(5) expressly permitting limited partnerships as new commercial enterprises was not intended to restrict investor choice with respect to the type of entity used in investment structuring, but was intended to permit flexibility in the administration of the EB-5 program with respect to the use of different entity types (including the longstanding use of limited liability companies with structures analogous to limited partnerships). Accordingly, 8 CFR 204.6(j)(5) was revised to clarify and conform existing regulations with the statutory requirements of INA 203(b)(5), as amended by Public 107-273.

79. [^] See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(j)(5)(iii)).

80. [^] Job maintenance is also permitted under certain circumstances. See Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

81. [^] See 8 CFR 204.6(j)(4)(i).

82. [^] See 8 CFR 204.6(j) (It is the new commercial enterprise that will create the 10 jobs).

83. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998). 

84. [^] See 8 CFR 204.6(j).

85. [^] See 8 CFR 204.6(e).

86. [^] See 8 CFR 204.6(e).

87. [^] See INA 203(b)(5)(A)(ii)

88. [^] See INA 203(b)(5)(D). See 8 CFR 204.6(e).

89. [^] See 8 CFR 204.6(e)

90. [^] See 8 CFR 204.6(j)(4)(ii).

91. [^] See 8 CFR 204.6(j)(4)(ii).

92. [^] See 8 CFR 204.6(e).

93. [^] See 8 CFR 204.6(e).

94. [^] See 8 CFR 204.6(j)(4)(iii)

95. [^] See 8 CFR 204.6(m)(1). See 8 CFR 204.6(m)(7).

96. [^] See 8 CFR 204.6(g)(2).

97. [^] USCIS recognizes any reasonable agreement made among immigrant investors in regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2).

98. [^] See 8 CFR 204.6(j)(4)(i).

99. [^] The 2-year period is described in 8 CFR 204.6(j)(4)(i)(B).

100. [^] See 8 CFR 204.6(j)(4)(ii).

101. [^] See 8 CFR 204.6(j)(4)(iii).

102. [^] See Chapter 6, Deference [6 USCIS-PM G.6].

103. [^] See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012.

104. [^] See, for example, Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998) (holding that the full amount of the money must be made available to the business(es) most closely responsible for creating the employment on which the petition is based).

105. [^] See 8 CFR 204.6(j)(4)(iii) and (m)(3).

106. [^] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375-376 (AAO 2010). 

107. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(d)). For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 3, Priority Dates [7 USCIS-PM A.6(C)(3)]. For general information on limited visa availability, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 2, Numerically Limited Visa Availability [7 USCIS-PM A.6(C)(2)].

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

The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area. The regional center model can offer an immigrant investor already defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. If the new commercial enterprise is located within the geographic area, and falls within the economic scope of the defined regional center, reasonable methodologies can be used to demonstrate indirect job creation. [1] A regional center can be associated with one or more new commercial enterprises. 

A regional center seeking to participate in the Regional Center Program must submit a proposal using the Application For Regional Center Under the Immigrant Investor Program (Form I-924). 

USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The statute further provides that a regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. 

In addition, the establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have on the area. [2] 

The regulations state that the proposal must:

  • Clearly describe how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;

  • Provide in verifiable detail how jobs will be created directly or indirectly;

  • Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;

  • Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;

  • Include a detailed prediction [3] how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

  • Be supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, or multiplier tables. [4] 

The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the application filing. [5] 

A. Regional Center Application Proposals

The regional center proposal must include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:

  • Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;

  • Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;

  • Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and

  • Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.

Geographic Area

An officer reviews the proposed geographic boundaries of a new regional center to determine if they are acceptable. USCIS considers geographic boundaries acceptable if the regional center applicant can establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area. [6] The determination is fact-specific, and the law does not require any particular form of evidence, such as a county-by-county analysis. 

In addition, a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones. [7] To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities can include but are not limited to:

  • Regional connectivity;

  • The labor pool and supply chain; and

  • Interdependence between projects.

Moreover, in assessing the likelihood that the proposed economic activity will promote economic growth in the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographical region of the United States. [8] The regional center applicant must present an economic analysis of its proposed economic activity in the proposed geographic area that is supported by economically or statistically valid forecasting tools. [9] The Form I-924 instructions provide further information regarding the requirements of the economic analysis.

B. Types of Regional Center Projects

An actual project refers to a specific project proposal that is supported by a Matter of Ho (PDF) compliant business plan. [10] 

A hypothetical project refers to a project proposal that is not supported by a Matter of Ho (PDF) compliant business plan. 

The term exemplar refers to a sample Immigrant Petition by Alien Investor (Form I-526), filed with Form I-924 for an actual project. This type of regional center proposal contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS reviews to determine if they are in compliance with established eligibility requirements.

1. Hypothetical Projects

If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. A regional center applicant seeking review of a hypothetical project should clarify in the Form I-924 submission that the project is hypothetical. General proposals and predictions may include a description of the project parameters, such as:

  • Proposed project activities, industries, locations, and timelines;

  • A general market analysis of the proposed job creating activities and explanation regarding how the proposed project activities are likely to promote economic growth and create jobs; and

  • A description, along with supporting evidence, of the regional center principals’ relevant experience and expertise.

While hypothetical project submissions are sufficient for regional center designation, previous determinations based on hypothetical projects will not receive deference. Actual projects will receive a de novo officer review during subsequent filings (for example, through the adjudication of an amended Form I-924 application, including the actual project details or the first Form I-526 immigrant investor petition).

Organizational and transactional supporting documents are not required for a hypothetical project. If a regional center applicant desires a compliance review of organizational and transactional documents, the application must include an actual project with a Matter of Ho (PDF) compliant business plan and an exemplar immigrant investor petition. 

2. Actual Projects

Applications for regional center designation based on actual projects may require more details than a hypothetical project to demonstrate that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. A regional center applicant seeking review of an actual project should clarify in the Form I-924 submission that the project is actual. 

Actual projects require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created. Absent fraud, willful misrepresentation, or a legal deficiency, [11] USCIS defers to prior determinations based on actual projects when evaluating subsequent filings under the project involving the same material facts and issues. 

Organizational and transactional documents for the new commercial enterprise are not required. If a regional center applicant desires review of organizational and transactional documents for program compliance, the regional center application must be accompanied by an exemplar Form I-526 immigrant investor petition. 

If regional center applicants opt not to file a Form I-924 amendment, the investor should identify his or her Form I-526 immigrant investor petition as an actual project being presented for the first time. Additionally, the immigrant petition should contain an affirmative statement signed by a regional center principal confirming that the regional center is aware of the specific project being presented for the first time as part of the immigrant investor petition.

In cases where the regional center application is filed based on actual projects that do not contain sufficient verifiable detail, USCIS may approve the projects as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, do not receive deference in subsequent filings. 

In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should identify which projects have been approved as actual projects and will be accorded deference. The approval notice should also identify projects that have been approved as hypothetical projects but will not be accorded deference. 

3. Exemplar Filings

Regional center applications, based on actual projects, including a Form I-526 immigrant investor exemplar petition, require more details than a hypothetical or actual project submitted without an exemplar. A regional center applicant seeking review of an exemplar should state that the project is an actual project with a Form I-526 exemplar.

Exemplar filings require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created, as well as organizational and transactional documents for the new commercial enterprise. 

Absent fraud, willful misrepresentation, or a legal deficiency, officer determinations based on exemplar filings are accorded deference in subsequent filings under the project with the same material facts and issues. 

While an amended Form I-924 is not required to perfect a hypothetical project once the actual project details are available, some applicants may choose to file an amended Form I-924 application with a Form I-526 exemplar to obtain a favorable determination. These exemplar filings are accorded deference in subsequent related filings, absent material change, fraud, willful misrepresentation, or a legally deficient determination. 

C. Regional Center Annual Reporting

Designated regional centers must file a Supplement to Form I-924 (Form I-924A) annually that demonstrates continued eligibility for designation as a regional center in the EB-5 Program. [12] The regional center must file the form within 90 days of the end of the fiscal year (between October 1 and December 29). The Form I-924A instructions specifically list required information that must be submitted. [13] 

If the regional center fails to file the required annual report, USCIS issues a Notice of Intent to Terminate (NOIT) to the regional center for failing to provide the required information. This may ultimately result in the termination of the regional center’s designation if the regional center fails to respond or does not file a response which adequately demonstrates continued eligibility.

D. Regional Center Amendments

Because businesses’ strategies constantly evolve, with new opportunities identified and existing plans improved, a regional center may amend a previously approved designation. The Form I-924 instructions provide information regarding the submission of regional center amendment requests. [14] 

To improve processing efficiencies and predictability in subsequent filings, many regional centers may seek to amend the Form I-924 approval to reflect changes in economic analysis and job creation estimates. Such amendments, however, are not required in order for individual investors to proceed with filing the immigrant petitions or petitions to remove conditions on residence based on the additional jobs created, or to be created, in additional industries. 

Formal amendments to an approved regional center’s designation are not required when a regional center changes its industries of focus, business plans, or economic methodologies; however, a regional center may find it advantageous to seek USCIS approval of such changes before they are adjudicated in individual immigrant investor petitions.

Requests to Change Geographic Area

When a regional center requests to expand its geographic area, the proposed geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones. [15] 

Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which requires that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013. [16] That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment. 

E. Termination of a Regional Center Designation

USCIS issues a NOIT if:

  • USCIS determines that a regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment; or

  • The regional center fails to submit required information to USCIS. [17] 

The NOIT will provide the grounds for termination and provide at least 30 days from receipt of the NOIT for the regional center to respond to the allegations in the NOIT. The regional center may offer evidence to contest the allegations in the NOIT. If the regional center overcomes the allegations in the NOIT, USCIS issues a Notice of Reaffirmation that affirms the regional center’s designation. 

If the regional center fails to overcome the allegations in the NOIT, USCIS terminates the regional center’s participation in the Regional Center Program. In this case, USCIS notifies the regional center of the termination, the reasons for termination, and the right to file a motion, appeal, or both. The regional center may appeal the decision to USCIS’ Administrative Appeals Office within 30 days after service of notice (33 days, if the notice was mailed). [18] 

Footnotes


1. [^] For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

2. [^] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395 (PDF, 234 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended.

3. [^] An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions.

4. [^] See 8 CFR 204.6(m)(3).

5. [^] For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].

6. [^] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 234 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth).

7. [^] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 234 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended.

8. [^] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 234 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i).

9. [^] See 8 CFR 204.6(m)(3).

10. [^] See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].

11. [^] Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication.

12. [^] See 8 CFR 204.6(m)(6)

13. [^] See Form I-924A instructions.

14. [^] See Form I-924 instructions. 

15. [^] For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].

16. [^] See EB-5 Adjudication Policy Memo (PDF), PM-602-0083, issued May 30, 2013.

17. [^] See 8 CFR 204.6(m)(6).

18. [^] See 8 CFR 103.3. See 8 CFR 204.6(m)(6).

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

An immigrant investor must file an initial immigrant petition and supporting documentation to receive EB-5 immigrant classification. [1] The immigrant investor will be a conditional permanent resident upon adjustment of status or admission to the United States. [2] 

The petitioner must establish he or she meets the following eligibility requirements when filing the Immigrant Petition by Alien Investor (Form I-526): 

  • The required amount of capital has been invested or is actively in the process of being invested in the new commercial enterprise;

  • The investment capital was obtained by the investor through lawful means;

  • The new commercial enterprise will create at least 10 full-time positions for qualifying employees; and 

  • The immigrant investor is or will be engaged in the management of the new commercial enterprise.

If the immigrant investor seeks to qualify based on a $500,000 investment, instead of $1,000,000, it is necessary to show the new commercial enterprise or job-creating entity, as applicable, is principally doing business in a TEA.

At the preliminary Form I-526 filing stage, the immigrant investor must demonstrate his or her commitment to invest the capital, but does not need to establish the required capital already has been fully invested. The investment requirement is met if the immigrant investor demonstrates that he or she is actively in the process of investing the required capital. However, evidence of a mere intent to invest or of prospective investment arrangements entailing no present commitment will not suffice. [3] 

At this preliminary stage, the immigrant investor does not need to establish the required jobs have already been created. The job creation requirement is met by the immigrant investor demonstrating it is more likely than not the required jobs will be created. [4] 

A. Petitions Associated with Regional Centers

Each regional center investor must demonstrate that he or she has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within a designated regional center in the United States. The investor must also demonstrate that this investment will create at least 10 direct or indirect full-time jobs for qualifying employees.

As part of the determination of whether a regional center investor has invested, or is actively in the process of investing, in a new commercial enterprise located within a regional center, an officer reviews the regional center’s geographic boundaries. If the regional center has requested to expand its geographic area, USCIS adjudicates the petition based on the following:

  • Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which require that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

  • ​If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013. [5] That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment. 

The immigrant investor must provide a copy of the regional center’s most recently issued approval letter. In addition, if the immigrant investor is relying on previously approved project-specific documentation (including the comprehensive business plan, economic analysis, and organizational and transactional documents) to satisfy his or her burden of proof, the immigrant investor must submit this documentation with his or her Form I-526 petition. This is required even though the regional center previously submitted and USCIS reviewed the documentation with a regional center’s Application for Regional Center Under the Immigrant Investor Program (Form I-924). 

When USCIS has evaluated and approved certain aspects of an EB-5 investment, USCIS generally defers to that favorable determination at a subsequent stage in the EB-5 process. USCIS does not, however, defer to a previously favorable decision in later proceedings when, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation, or the previously favorable decision is determined to be legally deficient. [6] 

B. Stand-Alone Petitions

An immigrant investor not associated with a regional center must, together with the petition, demonstrate that he or she has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within the United States that will create at least 10 direct full-time jobs for qualifying employees.

C. Material Change

A petitioner must establish eligibility at the time of filing and a petition cannot be approved if, after filing, the immigrant investor becomes eligible under a new set of facts or circumstances. Changes that are considered material that occur after the filing of an immigrant investor petition will result in the investor’s ineligibility if the investor has not obtained conditional permanent resident status.[7]

If material changes occur after the approval of the immigrant petition, but before the investor has obtained conditional permanent residence, such changes would constitute good and sufficient cause to issue a notice of intent to revoke and, if not overcome, would constitute good cause to revoke the approval of the petition. A change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.[8] 

Changes that occur in accordance with a business plan and other supporting documents as filed will generally not be considered material. For example, if at the time of filing the immigrant petition, no jobs have yet been created, but after approval of the immigrant petition and before the investor has obtained conditional permanent resident status, the investment in the new commercial enterprise results in the creation of 10 jobs in accordance with the investor’s business plan as filed, such a change would not be considered material.

If the new commercial enterprise undertakes the commercial activities presented in the initially filed business plan and creates the required number of jobs, the new commercial enterprise may further deploy the capital into another activity. The activity must be within the scope of the new commercial enterprise and further deployment must be within a commercially reasonable period of time. Further deployment of this nature will not cause the petition to be denied or revoked under certain circumstances.

In all cases where further deployment is envisioned, officers review the evidence submitted with the petition to determine whether the petitioner has presented sufficient evidence to demonstrate continuing eligibility with the capital at risk requirement. The investor must show that the capital is, and will remain, at risk of loss and gain and is and will be used in a manner related to engagement in commerce within the scope of the new commercial enterprise’s business. Further deployment of capital that occurs before the immigrant investor becomes a conditional permanent resident must be adequately described in the Form I-526 record.

If the organizational documents for a new commercial enterprise contain a liquidation provision, that does not otherwise constitute an impermissible debt arrangement, the documents may generally be amended to remove such a provision in order to allow the new commercial enterprise to continue to operate through the regional center immigrant investor’s period of conditional permanent residence. Such an amendment would generally not be considered a material change because facts related to the immigrant investor’s Form I-526 eligibility would not change.

If, at the time of adjudication, the investor is asserting eligibility under a materially different set of facts that did not exist when he or she filed the immigrant petition, the investor must file a new Form I-526 immigrant petition.

Further, if a regional center immigrant investor changes the regional center with which his or her immigrant petition is associated after filing the Form I-526 petition, the change constitutes a material change to the petition. Similarly, the termination of a regional center associated with a regional center immigrant investor’s Form I-526 petition constitutes a material change to the petition.[9]

For petitions filed before November 21, 2019, amendments or supplements to any offering necessary to maintain compliance with applicable securities laws based on regulatory changes effective on November 21, 2019, must not independently result in denial or revocation of a petition, provided that the petitioner:

  • Was eligible for classification as an employment-based 5th preference immigrant[10] at the time the petition was filed; and

  • Is currently eligible for classification as an employment-based 5th preference immigrant, including having no right to withdraw or rescind the investment or commitment to invest into such offering, at the time of adjudication of the petition.[11]

Footnotes


1. [^] See 8 CFR 204.6(a). See 8 CFR 103.2(b).

2. [^] See INA 216A(a). For information regarding removal of the conditional basis of the investor’s permanent resident status, see Chapter 5, Removal of Conditions [6 USCIS-PM G.5].

3. [^] See 8 CFR 204.6(j)(2). See Matter of Ho (PDF), 22 I&N Dec. 206 (Assoc. Comm. 1998).

4. [^] See 8 CFR 204.6(j)(4). See 8 CFR 204.6(m)(7).

5. [^] See EB-5 Adjudication Policy Memo (PDF), PM-602-0083, issued May 30, 2013.

6. [^] Legally deficient includes objective mistakes of law or fact made as part of the USCIS adjudication.

7. [^] See Matter of Izummi (PDF), 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). See 8 CFR 103.2(b)(1).

8. [^] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).

9. [^] See 8 CFR 204.6(j). See 8 CFR 204.6(m)(7).

10. [^] See INA 203(b)(5).

11. [^] See 84 FR 35750, 35809 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(n)).

Chapter 5 - Removal of Conditions

To seek removal of the conditions on permanent resident status, the immigrant investor must file a Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829) within 90 days prior to the 2-year anniversary of the date conditional permanent resident status was granted (for example, adjustment of status application was approved or investor admitted into the United States on an immigrant visa). 

The immigrant investor must submit the following evidence with his or her petition to remove conditions: 

  • Evidence that the immigrant investor invested, or was actively in the process of investing the required capital and sustained the investment throughout the period of the immigrant investor’s residence in the United States; and

  • Evidence that the new commercial enterprise created or can be expected to create, within a reasonable time, at least 10 full-time positions for qualifying employees. [1] In the case of a troubled business, the investor must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident. [2] 

A. Evidence of Investment and Sustainment

1. Investment

The petition must be accompanied by evidence that the immigrant investor invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence. [3] 

2. Sustainment of the Investment

The immigrant investor must provide evidence that he or she sustained the investment throughout the period of his or her status as a conditional permanent resident of the United States. 

USCIS considers the immigrant investor to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement and continuously maintained his or her capital investment over the sustainment period. [4] When filing a petition to remove conditions, the full amount of required capital does not need to have been invested, but the immigrant investor must provide evidence that he or she has substantially met the requirement. The evidence may include, but is not limited to:

  • Bank statements;

  • ​Invoices;

  • ​Receipts;

  • ​Contracts;

  • ​Business licenses;

  • ​Federal or state income tax returns; and

  • Federal or state quarterly tax statements. [5] 

B. Evidence of Job Creation

The immigrant investor can meet the job creation requirement by showing that at least 10 full-time positions for qualifying employees have been created, or will be created within a reasonable time. The non-regional center investor must show that the new commercial enterprise directly created these full-time positions for qualifying employees. The regional center investor may show that these jobs were directly or indirectly created by the new commercial enterprise. The evidence to prove job creation may include, but is not limited to the following:

  • For direct jobs created as a result of the immigrant investor’s investment, evidence such as payroll records, relevant tax documents, and Employment Eligibility Verification (Form I-9) showing employment by the new commercial enterprise;

  • For direct jobs maintained or created in a troubled business, evidence such as payroll records, relevant tax documents, and Form I-9 showing employment at the time of investment and at the time of filing the petition to remove the conditions on residence; or

  • For jobs created indirectly as a result of an investment in the regional center context, reasonable methodologies, including multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices. 

If the regional center investor seeks to demonstrate job creation through the use of an economic input-output model, the investor must demonstrate that the methodology is reasonable. Further, the investor must submit relevant documents previously submitted with the Immigrant Petition by Alien Investor (Form I-526), including the comprehensive business plan and economic impact analysis, if he or she is relying on such documents to meet his or her burden of proof. This information is necessary to indicate whether there are material changes that would impact deference. 

Where the inputs into the model reflect jobs created directly at the new commercial enterprise or job-creating entity, the investor must demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records, or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when the jobs will be created. 

If the inputs into the model reflect expenditures, the investor must demonstrate that the expenditures input is reasonable. Relevant documentation may include receipts and other financial records for expenditures that have occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur. 

If the inputs into the model reflect revenues, the investor must demonstrate the revenues input is reasonable. Relevant documentation may include tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues that will occur. 

In making the determination as to whether or not the immigrant investor has created the requisite number of jobs, USCIS does not require that the jobs still be in existence at the time of the petition to remove conditions adjudication in order to be credited to the investor. Instead, the job creation requirement is met if the investor can show that at least 10 full-time jobs for qualifying employees were created by the new commercial enterprise as a result of his or her investment and such jobs were considered to be permanent jobs when created. [6] 

Full-time positions will be allocated to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents. [7] For example, if the new commercial enterprise creates 25 jobs, yet there are three immigrant investors associated with the new commercial enterprise, and the record is silent on the issue of allocation, the first two immigrant investors to file the petition to remove conditions will each get to count 10 of the 25 jobs. The third immigrant investor to file the petition to remove conditions is allocated the remaining five jobs.

Direct jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last for at least 2 years generally are not considered intermittent, temporary, seasonal, or transient in nature. 

Although employment in some industries such as construction or tourism can be intermittent, temporary, seasonal or transient, officers should not exclude jobs simply because they fall into such industries. The focus of the adjudication will continue to be on whether the position, as described in the petition, is continuous full-time employment. 

For example, if a petition reasonably describes the need for general laborers in a construction project that is expected to last several years and would require a minimum of 35 hours per week over the course of that project, the positions would meet the full-time employment requirement. However, if the same project called for electrical workers to provide services during a small number of 5-week periods over the course of the project, such positions would be deemed intermittent and not meet the definition of full-time employment.

1. Position Focused, Not Employee Focused

The full-time employment criterion focuses on the position, not the employee. Accordingly, the fact that the position may be filled by more than one employee does not exclude the position from consideration as full-time employment. For example, the positions described in the preceding paragraph would not be excluded from being considered full-time employment if the general laborers needed to fill the positions varied from day-to-day or week-to-week as long as the need for the positions remain constant. 

2. Within a Reasonable Time Standard

A petitioner may demonstrate that jobs will be created within a reasonable period of time after adjudication of the Form I-829 petition. [8] This permits a degree of flexibility to account for the realities and unpredictability of starting a business venture, but it is not an open-ended allowance. The business plan submitted with the Form I-526 immigrant petition must establish a likelihood of job creation within the next 2 years, [9] demonstrating an expectation that EB-5 projects will generally create jobs within such a timeframe. 

USCIS may determine, based upon a totality of the circumstances, that a lengthier timeframe is reasonable. USCIS has latitude under the law to request additional evidence concerning those circumstances. Because 2 years is the expected baseline period in which job creation will take place, jobs that will be created within a year of the 2-year anniversary of the immigrant investor’s admission as a conditional permanent resident or adjustment to conditional permanent resident may generally be considered to be created within a reasonable period of time. 

Jobs projected to be created more than 3 years after the immigrant investor’s admission in, or adjustment to, conditional permanent resident status usually will not be considered to be created within a reasonable time unless extreme circumstances [10] are presented.

Not all of the goals of capital investment and job creation need to be fully realized before the conditions on the immigrant investor’s status have been removed. The investor must establish that it is more likely than not that the investor is in substantial compliance with the capital requirements and that the jobs will be created within a reasonable time.

C. Material Change

USCIS recognizes the process of carrying out a business plan and creating jobs depends on a wide array of variables of which an investor may not have any control. In order to provide flexibility to meet the realities of the business world, USCIS permits an immigrant investor who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed.

An immigrant investor may proceed with the petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the initial Form I-526 immigrant petition, the requirements for the removal of conditions have been satisfied. USCIS does not deny petitions to remove conditions based solely on the failure to adhere to the business plan contained in the Form I-526 immigrant petition. An immigrant investor may pursue alternative business opportunities within an industry category not previously approved for the regional center.

Therefore, during the conditional residence period, an investment may be further deployed in a manner not contemplated in the initial Form I-526, as long as the further deployment otherwise satisfies the requirement to sustain the capital at risk. In addition, further deployment may be an option during the conditional residence period in various circumstances. For example, further deployment may be possible in cases where the requisite jobs were created by the investment in accordance with the business plan, as well as in cases where the requisite jobs were not created in accordance with the original business plan, and even if further deployment had not been contemplated at the time of the Form I-526 filing. For petitions filed before November 21, 2019, amendments or supplements to any offering necessary to maintain compliance with applicable securities laws based upon regulatory changes effective on November 21, 2019, may not be considered material.[11]

The initial Form I-526 immigrant petition must be filed in good faith and with full intention to follow the plan outlined in that petition. If the immigrant investor does not demonstrate that he or she filed the immigrant petition in good faith, USCIS may conclude that the investment in the commercial enterprise was made as a means of evading the immigration laws. Under these circumstances, USCIS may terminate the immigrant investor’s conditional status.[12]

While USCIS allows this flexibility in Form I-829 filings, nothing in this policy relieves an immigrant investor from the requirements for removal of conditions. [13] Therefore, even in the event of a change in course, an immigrant investor must always be able to demonstrate that:

  • The required funds were placed at risk throughout the period of the petitioner’s conditional permanent residence in the United States;

  • The required amount of capital was made available to the business or businesses most closely responsible for creating jobs (unless the job creation requirement has already been satisfied);

  • ​This at-risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States; and 

  • ​The investor created (or maintained, if applicable), or can be expected to create within a reasonable period of time, the requisite number of jobs. 

Accordingly, if an immigrant investor fails to meet any of these requirements, he or she would not be eligible for removal of conditions.

Further, with respect to the impact of regional center termination, an immigrant investor’s conditional permanent resident status, if already obtained, is not automatically terminated if he or she has invested in a new commercial enterprise associated with a regional center that USCIS terminates. The conditional permanent resident investor will continue to have the opportunity to demonstrate compliance with EB-5 program requirements, including through reliance on indirect job creation. 

D. Extension of Conditional Permanent Residence While Form I-829 is Pending

USCIS automatically extends the conditional permanent resident status of an immigrant investor and certain dependents for 1 year upon receipt of a properly filed Form I-829. [14] The receipt notice along with the immigrant’s permanent resident card provides documentation for travel, employment, or other situations in which evidence of conditional permanent resident status is required. 

Within 30 days of the expiration of the automatic 1-year extension, or after expiration, a conditional permanent resident with a pending Form I-829 may take his or her receipt notice to the nearest USCIS field office and receive documentation showing his or her status for travel, employment, or other purposes. 

In such a case, an officer confirms the immigrant’s status and provides the relevant documentation. USCIS continues to extend the conditional permanent resident status until the Form I-829 is adjudicated.

An immigrant investor whose Form I-829 has been denied may seek review of the denial in removal proceedings. [15] USCIS issues the immigrant a temporary Form I-551 until an order of removal becomes administratively final. An order of removal is administratively final if the decision is not appealed or, if appealed, when the appeal is dismissed by the Board of Immigration Appeals.

Footnotes


1. [^] See 8 CFR 216.6(a)(4)(ii)-(iv).

2. [^] See 8 CFR 216.6(a)(4)(iv).

3. [^] See 8 CFR 216.6(a)(4)(ii).

4. [^] See 8 CFR 216.6(c)(1)(iii). The sustainment period is the investor’s 2 years of conditional permanent resident status. USCIS reviews the investor’s evidence to ensure sustainment of the investment for 2 years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period.

5. [^] See 8 CFR 216.6(a)(4)(iii).

6. [^] See Matter of Ho (PDF), 22 I&N Dec. 206, 212-13 (Assoc. Comm. 1998).

7. [^] USCIS recognizes any reasonable agreement made among immigrant investors with regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2).

8. [^] See 8 CFR 216.6(a)(4)(iv)

9. [^] See 8 CFR 204.6(j)(4)(i)(B).

10. [^] For example, force majeure

11. [1] See Chapter 4, Immigrant Petition by Alien Investor (Form I-526) [6 USCIS-PM G.4].

12. [^] See INA 216A(b)(1)(A).

13. [^] See INA 216A(d)(1). See 8 CFR 216.6(a)(4).

14. [^] See 8 CFR 216.6(a)(1).

15. [^] See INA 216A(c)(3)(D). See 8 CFR 216.6(d)(2).

Chapter 6 - Deference

There are distinct eligibility requirements at each stage of the EB-5 immigration process. Where USCIS has previously evaluated and approved certain aspects of an investment, USCIS generally defers to that favorable determination at a later stage in the process. This deference policy promotes predictability for immigrant investors, new commercial enterprises, and their employees. Deference also conserves scarce agency resources, which should not ordinarily be used to duplicate previous efforts.

As a general matter, USCIS does not reexamine determinations made earlier in the EB-5 process, and such earlier determinations will be presumed to have been properly decided. When USCIS has previously concluded that an economic methodology is reasonable to project future job creation as applied to the facts of a particular project, USCIS defers to this determination for all related adjudications directly linked to the specific project for which the economic methodology was previously approved. 

For example, if USCIS approves an Application For Regional Center Under the Immigrant Investor Program (Form I-924) or an Immigrant Petition by Alien Investor (Form I-526) presenting a Matter of Ho (PDF) compliant business plan and a specific economic methodology, USCIS will defer to the earlier finding that the methodology was reasonable in subsequent adjudications of Form I-526 presenting the same related facts and methodology. However, USCIS will still conduct a de novo review of each prospective immigrant investor’s lawful source of funds and other individualized eligibility criteria. 

Conversely, USCIS does not defer to a previously favorable decision in later proceedings when, for example, the underlying facts, upon which a favorable decision was made, have materially changed, there is evidence of fraud or misrepresentation, or the previously favorable decision is determined to be legally deficient. A change is material if it would have a natural tendency to influence, or is predictably capable of affecting, the decision. [1] 

When a new filing involves a different project from a previous approval, or the same previously approved project with material changes to the project plan, USCIS does not defer to the previous adjudication. 

Since prior determinations will be presumed to have been properly decided, a prior favorable determination will not be considered legally deficient for purposes of according deference unless the prior determination involved an objective mistake of fact or an objective mistake of law evidencing ineligibility for the benefit sought, but excluding those subjective evaluations related to evaluating eligibility. Unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, officers should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, officers should not re-adjudicate prior agency determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.

Footnotes


1. [^] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).

Part H - Designated and Special Immigrants

Part I - Family-Based Conditional Permanent Residents

Part J - Special Immigrant Juveniles

Chapter 1 - Purpose and Background

A. Purpose

Congress initially created the special immigrant juvenile (SIJ) classification to provide humanitarian protection for abused, neglected, or abandoned child immigrants eligible for long-term foster care. This protection evolved to include children who cannot reunify with one or both parents because of abuse, neglect, abandonment, or a similar basis under state law. While there is no longer a requirement that a child be found eligible for long-term foster care, a juvenile court determination[1] that reunification with one or both parents is not viable is still required for SIJ classification.[2]

Children in a variety of different circumstances who are residing in the United States may be eligible for SIJ classification, including but not limited to:

  • Children in the care or custody of a family member or other caregiver who have been abused, neglected, abandoned or subjected to similar maltreatment by a parent prior to their arrival in the United States, or while in the United States;

  • Children in federal custody with the U.S. Department of Health and Human Services, Office of Refugee Resettlement, Unaccompanied Children’s Services Program;[3] or

  • Children in the state child welfare system in the custody of a state agency (for example, foster care), or in the custody of a person or entity appointed by a state or juvenile court.

B. Background

Congress first established the SIJ immigrant visa classification in 1990. Since then, Congress has enacted several amendments. The table below provides an overview of major legislation related to SIJ classification.

Special Immigrant Juvenile Classification: Acts and Amendments

Acts and Amendments

Key Changes

The Immigration Act of 1990[4]

  • Established an SIJ classification for children declared dependent on a juvenile court in the United States, eligible for long-term foster care, and for whom it would not be in their best interest to return to their country of origin

Miscellaneous and Technical Immigration and Nationality Amendments of 1991[5]

  • Provided that children with SIJ classification were considered paroled for the purpose of adjustment of status to lawful permanent residence

  • Provided that alien children cannot apply for admission or be admitted to the United States in order to obtain SIJ classification

The Immigration and Nationality Technical Corrections Act of 1994[6]

  • Expanded eligibility from those declared dependent on a juvenile court to children whom such a court has legally committed to, or placed under the custody of, a state agency or department

The 1998 Appropriations Act[7]

 

 

 

  • Limited eligibility to children declared dependent on the court because of abuse, neglect, or abandonment

  • Provided that children are eligible only if the Attorney General (later changed to the Secretary of the Department of Homeland Security) expressly consents to the juvenile court order serving as a precondition to the grant of classification

  • Prohibited juvenile courts from determining the custody status or placement of a child who is in the custody of the federal government, unless the Attorney General (later changed to the Secretary of the Department of Health and Human Services) specifically consents to the court’s jurisdiction

Violence Against Women Act of 2005[8]

  • Prohibited compelling an SIJ petitioner to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for SIJ classification

The Trafficking Victims Protection and Reauthorization Act (TVPRA 2008)[9]

 

  • Removed the need for a juvenile court to deem a child eligible for long-term foster care and replaced it with a requirement that the juvenile court find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law

  • Expanded eligibility to include children whom a juvenile court has placed under the custody of a person or entity appointed by a state or juvenile court

  • Provided age-out protections so that SIJ classification may not be denied to anyone, based solely on age, who was under 21 years of age on the date that he or she properly filed the SIJ petition, regardless of the petitioner’s age at the time of adjudication

  • Simplified the consent requirement: The Secretary of Homeland Security now consents to the grant of SIJ classification instead of expressly consenting to the juvenile court order

  • Altered the “specific consent” function for those children in federal custody by vesting this authority with the Secretary of Health and Human Services, rather than the Secretary of the Department of Homeland Security

  • Added a timeframe for adjudication: USCIS shall adjudicate SIJ petitions within 180 days of filing

C. Legal Authorities

Footnotes


1. [^] The term “determination” refers to a conclusion of law. See 8 CFR 204.11(a) (defining “juvenile court” to be one in the United States with jurisdiction under state law to make judicial determinations regarding juveniles).

2. [^] There is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedure in issuing state court orders.

3. [^] See Section 462 of the Homeland Security Act of 2002, Pub. L. 107-296 (PDF), 116 Stat. 2135, 2202 (November 25, 2002).

4. [^] See Pub. L. 101-649 (PDF) (November 29, 1990).

5. [^] See Pub. L. 102-232 (PDF) (December 12, 1991).

6. [^] See Pub. L. 103-416 (PDF) (October 25, 1994).

7. [^] See Pub. L. 105-119 (PDF) (November 26, 1997).

8. [^] See Pub. L. 109-162 (PDF) (January 5, 2006).

9. [^] See Pub. L. 110-457 (PDF) (December 23, 2008).

10. [^] Certain portions of the regulations have been superseded. Up-to-date guidance is provided in this Part.

Chapter 2 - Eligibility Requirements

Special immigrant juvenile (SIJ) classification is available to children who have been subject to state juvenile court proceedings related to abuse, neglect, abandonment, or a similar basis under state law. If a juvenile court has made certain judicial determinations and issued orders under state law on dependency or custody, parental reunification, and the best interests of the child, then the child may be eligible for SIJ classification.

USCIS determines if the petitioner meets the requirements for SIJ classification by adjudicating a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).[1] USCIS’ adjudication of the SIJ petition includes review of the petition, the juvenile court order(s), and supporting evidence to determine if the petitioner is eligible for SIJ classification. USCIS generally defers to the court on matters of state law and does not go behind the juvenile court order to reweigh evidence and make independent determinations about the best interest of the juvenile and abuse, neglect, abandonment, or a similar basis under state law.

A. General

A petitioner must satisfy the following requirements to qualify for SIJ classification:

General Eligibility Requirements for SIJ Classification

Physically present in the United States

Unmarried

Under the age of 21 on the date of filing the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)

Juvenile court order(s) issued in the United States that meets the specified requirements

U.S. Department of Homeland Security consent

U.S. Department of Health and Human Services (HHS) consent, if applicable

B. Age-out Protections for Filing with USCIS

In general, a juvenile may seek SIJ classification if he or she is under 21 years of age and unmarried at the time of filing the petition with USCIS.[2] However, state law is controlling as to whether a petitioner is considered a “child” or any other equivalent term for a juvenile subject to the jurisdiction of a state juvenile court for custody or dependency proceedings.[3]

If a petitioner was under 21 years of age on the date of the proper filing of the Form I-360, and all other eligibility requirements under the statute are met, USCIS cannot deny SIJ classification solely because the petitioner is older than 21 years of age at the time of adjudication.[4]

C. Juvenile Court Order

For purposes of SIJ classification, a juvenile court is defined as a U.S. court having jurisdiction under state law to make judicial determinations on the custody and care of juveniles.[5] This means the court must have the authority to make determinations about dependency and/or custody and care of the petitioner as a juvenile under state law at the time the order was issued.[6] Depending on the circumstances, such a determination generally would be expected to remain in place until the juvenile reached the age of majority, or until the goal of a child welfare permanency plan, such as adoption, or other protective relief ordered by the juvenile court has been reached.[7] 

The title and the type of court that may meet the definition of a juvenile court varies from state to state. Examples of state courts that may meet this definition include: juvenile, family, dependency, orphans, guardianship, probate, and youthful offender courts.

Not all courts having jurisdiction over juveniles under state law may be acting as juvenile courts for the purposes of SIJ classification. For example, a court of general jurisdiction that issues an order with SIJ-related findings outside of any juvenile custody or dependency proceeding would generally not be acting as a juvenile court for SIJ purposes. The burden is on the petitioner to establish that the court is acting as a juvenile court at the time that the order is issued.[8]

To be eligible for SIJ classification, the petitioner must submit a juvenile court order(s) with the following determinations and provide evidence that there is a reasonable factual basis[9] for each of the determinations:

  • Dependency or Custody – Declares the petitioner dependent on the court, or legally commits or places the petitioner under the custody of either a state agency or department, or a person or entity appointed by a state or juvenile court;

  • Parental Reunification – Declares, under the state child welfare law, that the petitioner cannot reunify with one or both of the petitioner’s parents due to abuse, neglect, abandonment, or a similar basis under state law; and

  • Best Interests – Determines that it would not be in the petitioner’s best interest to be returned to the petitioner’s, or his or her parents’, country of nationality or last habitual residence. The best interest determination may be made by the juvenile court or in administrative proceedings authorized or recognized by the juvenile court.

1. Dependency or Custody

The petitioner must be the subject of a juvenile court order that declares him or her dependent on a juvenile court, or legally commits to or places the petitioner under the custody of either an agency or department of a state, or a person or entity appointed by a state or juvenile court.

Dependency[10]

A determination of dependency requires that the petitioner be declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency.[11] The petitioner must be in the United States and under the jurisdiction of the court. The term dependent child, as used in state child welfare laws, generally means a child subject to the jurisdiction of a juvenile court because the court has determined that allegations of parental abuse, neglect, abandonment, or similar maltreatment concerning the child are sustained by the evidence and are legally sufficient to support state intervention on behalf of the child.[12] Dependency proceedings may include abuse, neglect, dependency, termination of parental rights, or other matters in which the court intervenes to provide relief from abuse, neglect, abandonment, or a similar basis under state law.[13]

Custody

Placing the petitioner “under the custody of” a natural person or entity generally encompasses both legal and physical custody. Commitment to, or placement under the custody of a person may include certain types of guardianship, conservatorship, or adoption.[14] When the court places the petitioner under the custody of a specific person, the court order should identify that person by name. A qualifying court-appointed custodial placement could be with one parent, if reunification with the other parent is found to be not viable due to that parent’s abuse, neglect, abandonment or similar maltreatment of the petitioner.

2. Parental Reunification[15]

The juvenile court must determine that reunification with one or both parents[16] is not viable due to abuse, neglect, abandonment, or a similar basis under the relevant state child welfare laws.[17] Lack of viable reunification generally means that the court intends its finding that the child cannot reunify with his or her parent(s) remains in effect until the child ages out of the juvenile court’s jurisdiction.[18] The temporary unavailability of a child’s parent(s) does not meet the eligibility requirement that family reunification is not viable. However, actual termination of parental rights is not required.[19]

The juvenile court order should contain the factual basis for this determination, which includes naming the petitioner’s parents, and the record must establish that the court determined the named person(s) to be the petitioner’s parents. USCIS may request additional evidence if this is not established. For example, if the court’s determinations are based on a father not listed on the petitioner’s birth certificate, a determination that the claimed father is the father should be recognized in the juvenile court order.[20]

3. Best Interests

Juvenile courts do not have the authority to make decisions on the removal or deportation of a child to another country. However, it must be determined by the juvenile court (or in administrative proceedings recognized by the juvenile court) that it would not be in the best interest of the petitioner to be returned to the country of nationality or last habitual residence of the petitioner or his or her parents. This requires the juvenile court to make an individualized assessment and consider the factors that it normally takes into account when making best interest determinations. While the standards for making best interest determinations may vary between states, the court may consider a number of factors related to the circumstances of the child and the circumstances and capacity of the child's potential caregiver(s).[21] The child's safety and well-being are typically the paramount concern.

The court’s determination that a particular custodial placement is the best alternative available to the petitioner in the United States does not necessarily establish that being returned to the petitioner’s (or petitioner’s parents’) country of nationality or last habitual residence would not be in the child’s best interest.[22] However, if ​for example ​the court places the child with a person in the United States pursuant to state law governing the juvenile court dependency or custody proceedings, and the ​order includes facts reflecting​ that the caregiver has provided a loving home, bonded ​with​ the child​,​ and is the best person available to provide for the child​,​ this would likely constitute a qualifying best interest finding with a sufficient factual basis to warrant USCIS consent.​ The analysis would not change even if the chosen caregiver is a parent. USCIS defers to the juvenile court in making this determination and as such does not require the court to conduct any analysis other than what is required under state law.

The juvenile court may make the required determination that it is not in the petitioner’s best interest to be returned to the petitioner’s or his or her parents’ country of nationality or last habitual residence. However, other judicial or administrative bodies authorized or recognized by a juvenile court, such as a state child welfare agency, may also make this required determination. If a particular juvenile court establishes or endorses an alternate process for a best interest determination, a determination from that process may satisfy this requirement.[23]

4. Validity of Order

Jurisdiction under State Law

All determinations in the juvenile court order must have been properly issued under state law to establish eligibility for SIJ classification. This includes the need for the juvenile court[24] to have jurisdiction under state law to make the required judicial determinations about the custody and care and/or dependency of the juvenile.[25] For example, a state juvenile court may not be able to take jurisdiction and issue a qualifying dependency or custody order for a person who is no longer a juvenile under the state’s dependency or custody laws even though the federal statute allows a petitioner to file for SIJ classification until the age of 21. The state law definition of juvenile is controlling on the dependency or custody proceedings before the juvenile court. There is nothing in USCIS guidance that should be construed as instructing juvenile courts on how to apply their own state law.

Continuing Jurisdiction

In general, the petitioner must remain under the jurisdiction of the juvenile court at the time of the filing and adjudication of the SIJ petition, subject to some exceptions discussed below. If the petitioner is no longer under the jurisdiction of the juvenile court for a reason related to their underlying eligibility for SIJ classification, the petitioner is not eligible for SIJ classification. This may include cases in which the petitioner is no longer under the jurisdiction of the court because:

  • The court vacated or terminated its determinations that made the petitioner eligible because of subsequent evidence or information that invalidated the determinations; or

  • The court reunified the petitioner with the parent with whom the court previously deemed reunification was not viable because of abuse, neglect, abandonment, or a similar basis under state law.

However, this requirement does not apply if the juvenile court jurisdiction ended solely because:

  • The petitioner was adopted, or placed in a permanent guardianship; or

  • The petitioner was the subject of a valid order that was terminated based on age before or after filing the SIJ petition (provided the petitioner was under 21 years of age at the time of filing the SIJ petition).[26]

A juvenile court order does not necessarily terminate because of a petitioner’s move to another court’s jurisdiction, and a juvenile leaving the court-ordered placement without permission or authorization does not by itself affect SIJ eligibility. In general, a court maintains jurisdiction when it orders the juvenile placed in a different state or makes a custody determination and the juvenile and the legal custodian relocate to a new jurisdiction.[27] If, however, a juvenile permanently relocates to a new state and is not living in a court-ordered placement, then the petitioner must submit:

  • Evidence that the court is still exercising jurisdiction over the petitioner; or

  • A new juvenile court order from the court that has jurisdiction.[28]

If the original order is terminated due to the relocation of the child but another order is issued in a new jurisdiction, USCIS considers the dependency or custody to have continued through the time of adjudication of the SIJ petition, even if there is a lapse between court orders. 

D. USCIS Consent

The Trafficking Victims Protection and Reauthorization Act (TVPRA 2008) simplified but did not remove the DHS consent requirement.[29] In order to consent to the grant of SIJ classification, USCIS must review the juvenile court order and any supporting evidence submitted to conclude that the request for SIJ classification is bona fide, which means that the juvenile court order was sought to protect the child and provide relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily to obtain an immigration benefit.[30] USCIS therefore looks to the nature and purpose of the juvenile court proceedings and whether the court order was sought in proceedings granting relief from abuse, neglect, or abandonment beyond an order with factual findings to enable a person to file a petition for SIJ classification.[31] Generally, the court-ordered dependency or custodial placement of the child is the relief being sought from the juvenile court, and the factual basis of each of the required determinations is evidence that the request for SIJ classification is bona fide.

USCIS relies on the expertise of the juvenile court in making child welfare decisions and does not reweigh the evidence to determine if the child was subjected to abuse, neglect, abandonment, or a similar basis under state law. In order to exercise the statutorily mandated DHS consent function, USCIS requires that the juvenile court order or other supporting evidence contain or provide a reasonable factual basis for each of the determinations necessary for SIJ classification.

USCIS recognizes that there may be some immigration motive for seeking the juvenile court order. For example, the court may make determinations in separate hearings and the petitioner may request an order that compiles the determinations of several orders into one order to establish eligibility for SIJ classification. A special order issued to help clarify the determinations that were made so that USCIS can determine the petitioner’s eligibility for SIJ classification does not mean that the order is not bona fide.

E. HHS Consent

If a petitioner is currently in the custody of the U.S. Department of Health and Human Services (HHS) and seeks a juvenile court order that also alters[32] his or her custody status or placement, HHS must consent to the juvenile court’s jurisdiction. HHS consent is not required if the order simply restates the juvenile’s current placement.

F. Inadmissibility and Waivers

Grounds of inadmissibility do not apply to the adjudication of the SIJ petition.[33] Therefore, a petitioner does not need to apply for a waiver of any applicable grounds of inadmissibility in order to be eligible for SIJ classification.

G. Family Members

Unlike some other immigrant visa petitions, SIJ classification does not allow the petitioner’s family members to be included on the petition as derivative beneficiaries. SIJ petitioners that have adjusted status to that of a lawful permanent resident may petition for qualifying family members through the family-based immigration process. However, a petitioner who adjusts status as a result of an SIJ classification may not confer an immigration benefit to his or her natural or prior adoptive parents, even after naturalization.[34] This prohibition applies to a custodial parent when the juvenile court has found reunification is not viable with the other parent.

Footnotes


1. [^] USCIS also adjudicates the Application to Register Permanent Residence or Adjust Status (Form I-485), which determines eligibility for adjustment of status to lawful permanent residence. See Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

2. [^] USCIS interprets the use of the term “child” in Section 235(d)(6) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457 (PDF), 122 Stat. 5044, 5080 (December 23, 2008), to refer to the definition of child in INA 101(b)(1), which states that a child is an unmarried person under 21 years of age.

3. [^] See INA 101(a)(27)(J)(i). See 8 CFR 204.11(a), (d)(2)(i) and (iii). See Matter of A-O-C- (PDF, 309 KB), Adopted Decision 2019-03 (AAO Oct. 11, 2019) (clarifying that juveniles must have been subject to a dependency or custody order issued by a “juvenile court,” which is defined as a court “in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.”).

4. [^] Section 235(d)(6) of the TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5080 (December 23, 2008), provides age-out protection to SIJ petitioners.

5. [^] See 8 CFR 204.11(a). Consistent with the district court’s decision in R.F.M., et al. v. Nielsen, 365 F.Supp.3d 350 (S.D.N.Y. Mar. 15, 2019) and INA 101(a)(27)(J)(i), USCIS interprets the definition of juvenile court at 8 CFR 204.11(a) to mean a court located in the United States having jurisdiction under state law to make judicial determinations about the dependency or custody and care of juveniles (or both).

6. [^] See INA 101(a)(27)(J)(i). See Matter of A-O-C (PDF, 309 KB), Adopted Decision 2019-03 (AAO Oct. 11, 2019).

7. [^] See 8 CFR 204.11(d)(2)(i).

8. [^] For more information on what evidence is sufficient to establish that the court is acting as a juvenile court for SIJ purposes, see Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 1, Qualifying Juvenile Court Determinations [6 USCIS-PM J.3(A)(1)].

9. [^] For information on what evidence may suffice to establish a reasonable factual basis, see Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 3, Factual Basis and USCIS Consent [6 USCIS-PM J.3(A)(3)].

10. [^] See 8 CFR 204.11(c)(3).

11. [^] See 8 CFR 204.11(c)(3). See Matter of E-A-L-O- (PDF, 304 KB), Adopted Decision 2019-04 (AAO Oct. 11, 2019) (clarifying the requirement that a juvenile court dependency declaration is not sufficient for USCIS’ to consent to SIJ classification absent evidence that the dependency declaration actually granted relief from parental abuse, neglect, abandonment, or a similar basis under state law). For an example of state law governing declarations of dependency, see California Welfare and Institutions Code Section 300, et seq.

12. [^] Intervention by a juvenile court on behalf of a dependent child generally involves a determination regarding the care and custody of the child or the provision of child welfare services or both. If a custodial placement is being made, the order should state where or with whom the child is being placed. If the court is providing relief through child welfare services, the order or supplemental evidence should reference what type of services or supervision the child is receiving from the court. For example, court-ordered child welfare services may include psychiatric, psychological, educational, occupational, medical or social services, services providing protection against trafficking or domestic violence, or other supervision by the court or a court appointed entity. See, for example, U.S. Department of Health and Human Services, Child Welfare Information Gateway, How the Child Welfare System Works (PDF). See Budhathoki v. Nielsen (PDF), 898 F.3d 504, 513 (5th Cir. 2018) (concluding “that before a state court ruling constitutes a dependency order, it must in some way address custody or at least supervision”).

13. [^] USCIS draws on guidance from family law treatises, national clearinghouses on juvenile court practice, and state laws on the definition of dependency. See, for example, Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases, Section 12.1 (Thompson Reuters 3rd ed. 2018); and National Council of Juvenile and Family Court Judges, Resource Guidelines Improving Court Practice in Child Abuse & Neglect Cases (PDF) (1995).

14. [^] SIJ is generally not an appropriate option for those children who come to the United States for the primary purpose of adoption. Although it does not apply to all SIJ cases involving adoption, SIJ classification is not meant to provide a way to circumvent the Hague Adoption Convention or other requirements for receiving legal status via adoption. See Hague Conference on Private International Law, Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993, 32 I.L.M. 1134, Art. 2, 28. See 8 CFR 204.301 and 8 CFR 204.303.

15. [^] The TVPRA 2008 replaced the need for a juvenile court to deem a juvenile eligible for long-term foster care with a requirement that the juvenile court find reunification with one or both parents not viable. The term “eligible for long-term foster care” is defined at 8 CFR 204.11(a), as requiring that family reunification no longer be viable and that this determination would be expected to remain in place until the child reached the age of majority. USCIS interprets the TVPRA changes as a clarification that petitioners do not need to be eligible for or placed in foster care and that they may be reunified with one parent or other family members. However, USCIS requires that the reunification no longer be a viable option with at least one parent, and USCIS maintains that the court’s determination generally is meant to be in place until the child reaches the age of majority. See 8 CFR 204.11(a). See Section 235(d)(1)(A) of TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5079 (December 23, 2008).

16. [^] The term “parent” does not encompass a step-parent unless the step-parent is recognized as the petitioner’s legal parent under state law, such as when a step-parent has adopted the petitioner.

17. [^] See INA 101(a)(27)(J)(i). See Matter of D-Y-S-C- (PDF, 306 KB), Adopted Decision 2019-02 (AAO Oct. 11, 2019) (interpreting section 101(a)(27)(J)(i) to mean that that a qualifying reunification finding must include a judicial determination that the juvenile was subjected to such parental maltreatment by one or both parents under state law).

18. [^] For example, when parental reunification is no longer the goal of the child welfare authority’s plan for a permanent living situation for the child (known as a “permanency plan”). See U.S. Department of Health and Human Services, Child Welfare Information Gateway, How the Child Welfare System Works (PDF).

19. [^] USCIS does not require that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification. See R.F.M. v Nielsen, 365 F.Supp.3d 350, 382 (SDNY Mar. 15, 2019). See J.L., et al v. Cissna, 341 F.Supp.3d 1048 (N.D.C.A. 2018), Moreno-Galvez v. Cissna, No. 19-321 (W.D.W.A. July 17, 2019). See W.A.O. v. Cissna, No. 19-11696 (D.N.J. July 3, 2019).

20. [^] In circumstances where the judge does not make a final determination on parentage or makes a determination as to alleged or purported parentage, the order will not meet the statutory requirements for SIJ classification.

21. [^] See U.S. Department of Health and Human Services, Child Welfare Information Gateway, Determining the Best Interests of the Child. See Matter of A-O-C- (PDF, 309 KB), Adopted Decision 2019-03 (AAO Oct. 11, 2019) (providing, consistent with decisions in R.F.M. v. Nielsen, 365 F.Supp.3d 350 (S.D.N.Y. Mar. 15, 2019) and INA 101(a)(27)(J)(i), that the definition of juvenile court at 8 CFR 204.11(a) means a court located in the United States having jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of juveniles.).

22. [^] See 58 FR 42843-01, 42848 (Aug. 13, 1993).

23. [^] See 8 CFR 204.11(d)(2)(iii). The burden is on the petitioner to prove that the other judicial or administrative body is authorized or recognized by a juvenile court to make best interest determinations. See Matter of A-O-C- (PDF, 309 KB), Adopted Decision 2019-03 (AAO Oct. 11, 2019) (providing, consistent with decisions in R.F.M. v. Nielsen, 365 F.Supp.3d 350 (S.D.N.Y. Mar. 15, 2019) and INA 101(a)(27)(J)(i), that the definition of juvenile court at 8 CFR 204.11(a) means a court located in the United States having jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of juveniles). Evidence to support this may include, but is not limited to, copies of the relevant state law(s) or court documents indicating that the judicial or administrative body is authorized to make such determinations.

24. [^] As defined in this Section D, Juvenile Court Order [6 USCIS-PM J.2(D)].

25. [^] For an order to be considered an eligible juvenile court order, the court must have jurisdiction under state law to make judicial determinations about the custody and care and/or dependency of juveniles. See 8 CFR 204.11(a). See Perez-Olano v. Holder (PDF, 5.34 MB), Case No. CV 05-3604 (C.D. Cal. 2010) at paragraph 8.

26. [^] See Perez-Olano v. Holder (PDF, 5.34 MB), Case No. CV 05-3604 (C.D. Cal. 2010).

27. [^] Some states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Interstate Compact for the Placement of Children (ICPC). The UCCJEA is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws. The UCCJEA is effective only upon adoption by state legislatures. See Sections 201-204 of UCCJEA available at the Uniform Law Commission website on UCCJEA. ICPC is a binding contract between member jurisdictions. The ICPC establishes uniform legal and administrative procedures governing the interstate placement of children. Each state and the District of Columbia have enacted the provisions of the ICPC under state law.

28. [^] See 8 CFR 204.11(c)(5) (stating that an alien is eligible for SIJ classification if he or she continues to be dependent on the juvenile court).

29. [^] See Pub. L. 110-457 (PDF) (December 23, 2008). See Matter of D-Y-S-C- (PDF, 306 KB), Adopted Decision 2019-02 (AAO Oct. 11, 2019).

30. [^] See INA 101(a)(27)(J)(iii) (consent requirement). See H.R. Rep. No. 105-405, at 130 (1997).

31. [^] Id.; see also Matter of D-Y-S-C- (PDF, 306 KB), Adopted Decision 2019-02 (AAO Oct. 11, 2019) (clarifying SIJ classification may only be granted upon USCIS’ consent to juveniles who meet all other eligibility criteria and establish that they sought the requisite juvenile court or administrative determinations in order to gain relief from parental abuse, neglect, abandonment, or similar basis under state law, and not primarily to obtain an immigration benefit).

32. [^] See Perez-Olano v. Holder (PDF, 5.34 MB), Case No. CV 05-3604 (C.D. Cal. 2010).

33. [^] For discussion on the applicability of inadmissibility grounds to SIJ-based applicants for adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

34. [^] See INA 101(a)(27)(J)(iii)(II).

Chapter 3 - Documentation and Evidence

A petitioner seeking special immigrant juvenile (SIJ) classification must submit all of the following documentation to USCIS:

  • Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);[1]

  • A copy of the petitioner’s birth certificate or other evidence of the petitioner’s age;[2]

  • Copies of the juvenile court order(s) and administrative document(s), as applicable, that establish eligibility and evidence of the factual basis for the juvenile court’s determinations; and

  • A copy of U.S. Department of Health and Human Services (HHS) consent, if applicable.

The petitioner may file Form I-360 alone or concurrently with his or her Application to Register Permanent Residence or Adjust Status (Form I-485), if there is an immigrant visa currently available for the SIJ immigrant classification and he or she is otherwise eligible.[3]

A. Juvenile Court Order(s) and Administrative Documents

1. Qualifying Juvenile Court Determinations

The juvenile court order(s) must provide the required judicial determinations regarding dependency or custody, parental reunification, and best interests. These determinations may be made in a single juvenile court order or in separate juvenile court orders. The order(s) should use language establishing that the specific judicial determinations were made under state law.[4] This requirement may be met if the order(s) cite those state law(s), or if the petitioner submits supplemental evidence which could include, for example, a copy of the petition with state law citations, excerpts from relevant state statutes considered by the state court prior to issuing the order, or briefs or legal arguments submitted to the court. USCIS looks at the documents submitted in order to ascertain the role and actions of the court and to determine whether the proceedings provided relief to the child under the relevant state law(s). Mere copies of, or references to, state law(s), and/or briefs or legal arguments drafted in response to a request for evidence provided on their own, may not be sufficient unless supported by evidence that the court actually relied on those laws when making its determinations. The juvenile court order may use different legal terms than those found in the Immigration and Nationality Act (INA) as long as the determinations have the same meaning as the requirements for SIJ classification (for example, “guardianship” or “conservatorship” may be equivalent to custody).[5] Orders that just mirror or cite to federal immigration law and regulations are not sufficient.

There is nothing in USCIS guidance that should be construed as instructing juvenile courts on how to apply their own state law. Juvenile courts should follow their state laws on issues such as when to exercise their authority, evidentiary standards, and due process.

Similar Basis under State Law

The language of the order may vary based on individual state child welfare law due to variations in terminology and local state practice in making child welfare decisions. If a juvenile court order makes the determinations based upon a state law similar to abuse, neglect, or abandonment, the petitioner must establish that the nature and elements of the state law are indeed similar to the nature and elements of laws on abuse, neglect, or abandonment. This requirement may be met if the elements of the state law are contained in the order, by providing a copy of the law the court relied upon and a description of how the elements of the similar basis are equivalent, or by showing that the child is entitled to equivalent juvenile court protection and intervention based on the court’s determination of the similar basis to abuse, neglect, or abandonment.[6]

The fact that one or both parents is deceased is not itself a similar basis to abuse, abandonment or neglect under state law. A legal conclusion from the juvenile court is required that parental death constitutes abuse, neglect, abandonment, or is legally equivalent to a similar basis under state law.

2. Final Orders

A court order for dependency or custody that clearly indicates that the order was issued for a limited purpose (for example, medical guardianship) or expires before the child reaches the age of majority is generally not sufficient for SIJ eligibility. However, the title of the court order is not necessarily controlling. For example, an order entitled “temporary” may, in fact reach the legal conclusion that reunification is not viable and is legally binding on the parties until the age of majority. In such a case, the order should generally contain language to that effect or the SIJ petitioner should submit evidence that the court intended the order to be legally in effect until the age of majority. Such evidence could include, for example, the underlying petition or copies of relevant state law.

A court-appointed custodian that is acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent for a time-limited period,[7] is generally not considered a custodian for purposes of establishing SIJ eligibility.[8] However, a child may be placed with a temporary caregiver in the context of a dependency proceeding (for example, when placed with a foster parent) and still meet the criteria for being dependent on a juvenile court.

3. Factual Basis and USCIS Consent

Orders that have the necessary determinations and include, or are supplemented by, the factual basis for the court’s determinations (for example, the judicial findings of fact) are usually sufficient to establish eligibility and to demonstrate that the request for SIJ classification is bona fide.[9] Where the factual basis for the court’s determinations demonstrates that the juvenile court order was sought to protect the child and the record shows the juvenile court actually provided relief from abuse, neglect, abandonment, or a similar basis under state law, USCIS generally consents to the grant of SIJ classification.[10] If a petitioner cannot obtain a court order that includes facts that establish a factual basis for all of the required determinations, USCIS may request evidence of the factual basis for the court’s determinations. USCIS does not require specific documents to establish the factual basis or the entire record considered by the court. However, the burden is on the petitioner to provide the factual basis for the court’s determinations. Examples of documents that a petitioner may submit to USCIS that may support the factual basis for the court order include:

  • Any supporting documents submitted to the juvenile court, if available;

  • The petition for dependency or complaint for custody or other documents which initiated the juvenile court proceedings;

  • Court transcripts;

  • Affidavits summarizing the evidence presented to the court and records from the judicial proceedings; and

  • Affidavits or records that are consistent with the determinations made by the court.[11]

4. Supporting Evidence

The order or supporting evidence should specifically indicate:

  • What type of relief the court is providing, such as child welfare services or custodial placement;

  • With whom the child is placed, if the court has appointed a specific custodian or guardian, (for example, the name of the person, or entity, or agency) and the factual basis for this finding;

  • Which of the specific grounds (abuse, neglect, abandonment, or similar basis under state law) apply to which of the parent(s) and the factual basis for the court’s determinations on non-viability of parental reunification; and

  • The factual basis for the determination that it is not in the petitioner’s best interest to return to the petitioner’s or his or her parents’ country of nationality or last habitual residence (for example, addressing family reunification with family that remains in the child’s country of nationality or last habitual residence).

B. Limitations on Additional Evidence

USCIS is mindful that there are often confidentiality rules that govern disclosure of records from juvenile-related proceedings. For this reason, officers generally do not request information or documents from sources other than the SIJ petitioner or his or her legal representative.[12]

Children often do not share personal accounts of their family life with an unknown adult until they have had the opportunity to form a trusting relationship with that adult. Therefore, officers should exercise careful judgment when considering statements made by children at the time of initial apprehension by immigration or law enforcement officers to question the determinations made by the juvenile court.

Additionally, the juvenile court may make child welfare placement, custody, and best interest decisions that differ from the child’s stated intentions at the time of apprehension. However, if there is significant contradictory information in the file that the juvenile court was likely not aware of or that may impact whether a reasonable factual basis exists for the court’s determinations, officers may request additional evidence from the petitioner or his or her legal representative. 

However, officers may not require or request an SIJ petitioner to contact the person or family members of the person who allegedly abused, neglected, or abandoned the SIJ petitioner.[13]

Footnotes


1. [^] See Instructions for Form I-360. There is no fee to file Form I-360 to seek SIJ classification.

2. [^] For more information on evidence that can be used to provide proof of age see 8 CFR 204.11(d)(1).

3. [^] For information on SIJ-based adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

4. [^] See 8 CFR 204.11(d)(2); Matter of D-Y-S-C- (PDF, 306 KB), Adopted Decision 2019-02 (AAO Oct. 11, 2019) (explaining that petitioners bear the burden of establishing the state law applied in the reunification, dependency or custody, and best-interest determinations.). 

5. [^] See INA 101(a)(27)(J).

6. [^] For example, under Connecticut law, a child may be found “uncared for” if the child is “homeless” or if his or her “home cannot provide the specialized care that the physical, emotional or mental condition of the child requires.” See Conn. Gen. Stat. Ann. section 46b-120(9). “Uncared for” may be similar to abuse, neglect, or abandonment because children found “uncared for” are equally entitled to juvenile court intervention and protection. The outcomes for children found “uncared for” are the same as they are for children found abused, neglected, or abandoned. See Conn. Gen. Stat. Ann. section 46b-120(8),(9); 121(a).

7. [^] See Black’s Law Dictionary (10th ed. 2014) (defining “in loco parentis”).

8. [^] A department or agency of a State, or a person or entity appointed by a state court or juvenile court located in the United States, acting in loco parentis, must not be considered a legal guardian for purposes of this section or Section 462 of the Homeland Security Act of 2002 (codified at 6 U.S.C. 279). See Section 235(d)(5) of the Trafficking Victims Protection and Reauthorization Act (TVPRA 2008), Pub. L. 110-457 (PDF), 122 Stat. 5044, 5080 (December 23, 2008).

9. [^] See INA 101(a)(27)(J)(iii) (consent requirement). See H.R. Rep. No. 105-405, at 130 (1997).

10. [^] See INA 101(a)(27)(J)(iii) (consent requirement). See H.R. Rep. No. 105-405, at 130 (1997); see also Matter of D-Y-S-C- (PDF, 306 KB), Adopted Decision 2019-02 (AAO Oct. 11, 2019) (requiring that, for USCIS’ consent to be warranted, the judicial determination to find that the juvenile was subjected to such maltreatment by one or both parents under state law); Matter of E-A-L-O- (PDF, 304 KB), Adopted Decision 2019-04 (AAO Oct. 11, 2019 (clarifying that, for USCIS’ to consent to SIJ classification, a juvenile court dependency declaration must be issued in juvenile court proceedings which actually granted relief from parental abuse, neglect, abandonment, or a similar basis under state law). 

11. [^] Such affidavits or records will be assigned low evidentiary value unless they are accompanied by evidence that the court considered the information contained therein in the course of issuing its judicial determinations.

12. [^2] USCIS Fraud Detection and National Security (FDNS) officers conducting fraud investigations follow separate FDNS procedures on documentation requests.

13. [^] See Violence Against Women Act of 2005, Pub. L. 109-162 (PDF) (January 5, 2006) (codified at INA 287(h).

Chapter 4 - Adjudication

A. Jurisdiction

USCIS has sole jurisdiction over petitions for special immigrant juvenile (SIJ) classification.[1] Provided the petitioner is otherwise eligible, classification as an SIJ establishes eligibility to apply for adjustment of status.[2]

B. Expeditious Adjudication

The Trafficking Victims Protection and Reauthorization Act of 2008 provides that SIJ petitions be adjudicated by USCIS within 180 days.[3] The 180-day timeframe begins on the Notice of Action (Form I-797) receipt date. If the petitioner has not submitted sufficient evidence to establish his or her eligibility for SIJ classification, the clock stops the day USCIS sends a request for additional evidence and resumes the day USCIS receives the requested evidence from the petitioner.[4]

The 180-day timeframe applies only to the initial adjudication of the SIJ petition. The requirement does not extend to the adjudication of any motion or appeal filed after a denial of a SIJ petition.

C. Interview

1. Determining Necessity of Interview

USCIS has discretion to interview SIJ petitioners for the purposes of adjudicating the SIJ petition.[5] USCIS recognizes the vulnerable nature of SIJ petitioners and generally conducts interviews of SIJ petitioners only when an interview is deemed necessary. USCIS conducts a full review of the petition and supporting evidence to determine whether an interview may be warranted. USCIS generally does not require an interview if the record contains sufficient information and evidence to approve the petition without an in-person assessment. However, USCIS retains the discretion to interview SIJ petitioners for the purposes of adjudicating the SIJ petition, as appropriate. 

2. Conducting the Interview

Given the vulnerable nature of SIJ petitioners and the hardships they may face because of the loss of parental support, USCIS strives to establish a child-friendly interview environment if an interview is scheduled. During an interview, officers avoid questioning the petitioner about the details of the abuse, neglect, or abandonment suffered, because these issues are handled by the juvenile court. Officers generally focus the interview on resolving issues related to the eligibility requirements, including age.

The petitioner may bring a trusted adult to the interview in addition to an attorney or representative. The trusted adult may serve as a familiar source of comfort to the petitioner, but should not interfere with the interview process or coach the petitioner during the interview. Given potential human trafficking and other concerns, officers assess the appropriateness of the adult’s attendance in the interview and observe the adult’s interaction with the child. When appropriate, the officer may interview the child without that adult present.

D. Requests for Evidence

Additional evidence may be requested at the discretion of the officer if needed to determine eligibility.[6] To provide petitioners an opportunity to address concerns before issuing a denial, officers generally issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), where the evidence is insufficient to adjudicate the petition. The officer may request additional evidence for reasons such as, but not limited to:

  • The record lacks the required dependency or custody, parental reunification, or best interest determinations;

  • It is unclear if the order was made by a juvenile court or in accordance with state law;

  • The evidence provided does not establish a reasonable factual basis for the determinations or indicate what protective relief was granted by the court;

  • The record contains evidence or information that directly and substantively conflicts with the evidence or information that was the basis for the court order; or

  • Additional evidence is needed to determine eligibility.

E. Fraud

There may be cases where the officer suspects or determines that a petitioner has committed fraud in attempting to establish eligibility for SIJ classification. In these cases, officers follow current procedures when referring a case to Fraud Detection and National Security (FDNS).[7]

F. Decision

1. Approval

SIJ classification may not be granted absent the consent of the Secretary of Homeland Security. DHS delegates this authority to USCIS. Therefore, USCIS approval of the SIJ petition is evidence of DHS consent. USCIS notifies petitioners in writing upon approval of the petition.[8]

2. Denial

If the petitioner does not provide necessary evidence or does not meet the eligibility requirements, USCIS denies the Form I-360 petition. If USCIS denies the SIJ petition, USCIS provides the petitioner with a written denial notice which includes a detailed basis for the denial.[9] An SIJ petitioner may appeal an adverse decision or request that USCIS reopen or reconsider a USCIS decision.[10] The denial notice includes instructions for filing a Notice of Appeal or Motion (Form I-290B).

3. Revocation

Automatic Revocation

An approved SIJ petition is automatically revoked as of the date of approval if any one of the circumstances below occurs before USCIS issues a decision on the petitioner’s application for adjustment of status:[11] 

  • Marriage of the petitioner;

  • Reunification of the petitioner with one or both parents by virtue of a juvenile court order,[12] where a juvenile court previously deemed reunification with that parent, or both parents, not viable due to abuse, neglect, abandonment, or a similar basis under state law;[13] or

  • Reversal by the juvenile court of the determination that it would not be in the petitioner’s best interest to be returned to the petitioner’s, or his or her parents’, country of nationality or last habitual residence.

USCIS issues a notice to the petitioner of such revocation of the SIJ petition.[14]

Revocation on Notice

In addition, USCIS, with notice, may revoke an approved petition for SIJ classification for good and sufficient cause such as fraud, or if USCIS determines the petition was approved in error.[15] In these instances, USCIS issues a Notice of Intent to Revoke (NOIR) and provides the petitioner an opportunity to offer evidence in support of the petition and in opposition to the grounds alleged for revocation of the approval.[16]

Footnotes


1. [^] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). See Matter of E-A-L-O- (PDF, 304 KB), Adopted Decision 2019-04 (AAO, Oct. 11, 2019) (citing Sections 471(a), 451(b), 462(c) of the Homeland Security Act of 2002, Pub. L. 107-296 (PDF), 116 Stat. 2135, 2205 (November 25, 2002)).

2. [^] See Application to Register Permanent Residence or Adjust Status (Form I-485). Generally, an applicant may only apply to USCIS for adjustment of status if there is a visa number available for the special immigrant classification (EB-4), and the applicant is not in removal proceedings. If an SIJ is in removal proceedings, the immigration court must terminate the proceedings before USCIS can adjudicate the adjustment application. Conversely, the applicant may seek adjustment of status with the immigration court based on USCIS’ approval of the SIJ petition. For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A], Part B, 245(a) Adjustment [7 USCIS-PM B], and Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juveniles [7 USCIS-PM F.7].

3. [^] See Section 235(d)(2) of the Trafficking Victims Protection and Reauthorization Act of 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5080 (December 23, 2008).

4. [^] See 8 CFR 103.2(b)(10).

5. [^] See 8 CFR 103.2(b)(9).

6. [^] See 8 CFR 103.2(b)(8).

7. [^] A referral to FDNS does not change the 180-day timeframe for adjudication. However, the timeframe for processing will stop or be suspended for delays caused by the petitioner. See 8 CFR 103.2(b)(10).

8. [^] See 8 CFR 103.2(b)(19).

9. [^] See 8 CFR 103.3(a).

10. [^] See 8 CFR 103.3. See 8 CFR 103.5.

11. [^] See 8 CFR 205.1(a)(3)(iv).

12. [^] Revocation does not occur, however, where the juvenile court places the petitioner with the parent who was not the subject of the nonviable reunification determination.

13. [^] The Trafficking Victims Protection and Reauthorization Act (TVPRA 2008), Pub. L. 110-457 (PDF), 122 Stat. 5044 (December 23, 2008), replaced the need for a juvenile court to deem a juvenile eligible for long-term foster care with a requirement that the juvenile court find reunification with one or both parents not viable. The term “eligible for long-term foster care” is defined at 8 CFR 204.11(a) as requiring that family reunification no longer be viable. USCIS interprets this change as clarifying that the child does not need to be eligible for or placed in foster care. USCIS also views this change as modifying the regulation that requires auto-revocation upon the termination of the beneficiary’s eligibility for long-term foster care. A petition is subject to revocation if reunification with the parent is now viable where a juvenile court previously deemed reunification with that parent not viable. See Section 235(d)(1)(A) of TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5079 (December 23, 2008).

14. [^] See 8 CFR 205.1(b).

15. [^] See INA 205 and 8 CFR 205.2.

16. [^] See 8 CFR 205.2(b).

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

A petitioner may submit a Notice of Appeal or Motion (Form I-290B), with the appropriate filing fee or a request for a fee waiver, to file:[1]

  • An appeal with the Administrative Appeals Office (AAO);

  • A motion to reconsider a USCIS decision (made by the AAO, a field office, or the National Benefits Center); or

  • A motion to reopen a USCIS decision (made by the AAO, a field office, or the National Benefits Center).

The petitioner must file the appeal or motion within 30 days of the denial or dismissal, or 33 days if the denial or dismissal decision was sent by mail.[2] If the appeal relates to a revocation of an approved special immigrant juvenile (SIJ) petition, the appeal must be filed within 15 calendar days after service of the decision, or 18 days if the decision was sent by mail.[3] There is no exception to the filing period for appeals and motions to reconsider.

For a motion to reopen, USCIS may excuse the petitioner’s failure to file before this period expires where the petitioner demonstrates that the delay was reasonable and beyond his or her control.[4] 

Footnotes


1. [^] See 8 CFR 103.3. See 8 CFR 103.5.

2. [^] See 8 CFR 103.3(a)(2)(i). See 8 CFR 103.5(a)(1)(i). See 8 CFR 103.8(b).

3. [^] See 8 CFR 205.2(d) (revocation appeals) and 8 CFR 103.8(b) (effect of service by mail).

4. [^] See 8 CFR 103.5(a)(1)(i).

Chapter 6 - Data

USCIS compiles, and makes available to the public, annual reports disclosing the number of special immigrant juvenile (SIJ) petitions received, approved, and denied.[1] The number is limited to properly filed SIJ petitions. To ensure accuracy of information, officers must promptly enter all decisions on all petitions and motions related to SIJ into the relevant systems.

Footnote


1. [^] See the USCIS website for Data Set: Form I-360 Petition for Special Immigrant Juveniles.

Volume 7 - Adjustment of Status

Part A - Adjustment of Status Policies and Procedures

Chapter 1 - Purpose and Background

A. Purpose

There are two general paths to lawful permanent resident (LPR) status. Aliens living abroad apply for an immigrant visa at a consular office of the Department of State (DOS). Once issued a visa, an alien may enter the United States and become an LPR upon entry. Aliens who qualify for LPR status who are living in the United States may file an application with USCIS to adjust their status to LPR status, or they may apply for an immigrant visa abroad.

Congress created the adjustment of status provisions to enable an alien physically present in the United States to become an LPR without incurring the expense and inconvenience of traveling abroad to obtain an immigrant visa. Congress has further modified the adjustment of status provisions to:

  • Promote family unity;

  • Advance economic growth and a robust immigrant labor force;

  • Accommodate humanitarian resettlement; and

  • Ensure national security and public safety.

B. Background

Adjustment of status to lawful permanent residence describes the process by which an alien obtains U.S. lawful permanent resident status while physically present in the United States. USCIS issues a permanent resident card (Form I-551) (commonly called a green card) to the successful adjustment applicant as proof of such immigrant status. 

Most adjustment of status approvals are granted based on family or employment relationships. Unlike immigrant visa petition processing where the focus is on the relationship between the petitioner and beneficiary, the focus on an adjustment application is on the applicant’s eligibility and admissibility.

The following overview provides a brief history of permanent immigration and adjustment of status, along with a summary of major developments in U.S. immigration law over the years. 

1. Early Immigration Laws

Prior to the late 19th century, immigration was essentially unregulated. At that time, Congress imposed the first qualitativerestrictions, which barred certain undesirable immigrants such as criminals and those with infectious diseases from entering the country.

During the 1920s, Congress established annual quotas that imposed the first numerical restrictions on immigration. This was known as the National Origins Quota System. The system limited immigration from each country to a designated percentage of foreign-born persons of that nationality who resided in the United States according to the 1910 census. These quotas did not apply to spouses and children (unmarried and under 21 years old) of U.S. citizens. [1] 

These immigration laws required all intending immigrants to obtain an immigrant visa at a U.S. embassy or consulate abroad and then travel to the United States and seek admission as lawful permanent residents. [2] As such, these laws provided no legal procedure by which an alien already physically present in the United States could become a permanent resident without first leaving the country to obtain the required immigrant visa.  

By 1935, the administrative process of pre-examination was developed so that an alien already temporarily in the United States could obtain permanent resident status more quickly and easily. [3] In general, the pre-examination process consisted of an official determination in the United States of the alien’s immigrant visa eligibility, followed by a trip to Canada or another country for an arranged immigrant visa appointment at a U.S. consulate, and a prompt return and admission to the United States as a permanent resident. The government processed over 45,000 pre-examination cases from 1935 to 1950. [4] 

Near the onset of World War II, the U.S. government became increasingly concerned about the possibility of hostile foreign enemies living in the United States. In response, Congress enacted the Alien Registration Act of 1940, which required foreign-born persons 14 years of age and older to report to a U.S. post office, and later to an immigration office, to be fingerprinted and register their presence in the United States. [5] Those found to have no legal basis to remain in the United States were required to leave or were removed. Those with a valid claim to permanent residency received an Alien Registration Card. 

2. Immigration and Nationality Act of 1952

The passage of the Immigration and Nationality Act (INA) of 1952 organized all existing immigration laws into one consolidated source. [6] The INA retained a modified system of both qualitative and numerical restrictions on permanent immigration. The INAestablished a revised version of the controversial National Origins Quota System, limiting immigration from the eastern hemisphere while leaving immigration from the western hemisphere unrestricted.

The INA also introduced a system of numerically limited immigrant preference categories, some based on desirable job skills and others based on family reunification. Spouses and children (unmarried and under 21 years old) of U.S. citizens remained exempt from any quota restrictions.

In addition, the INA established a formal system of temporary (or nonimmigrant) categories under which aliens could come to the United States for various temporary purposes such as to visit, study, or work. For the first time, the INA also provided a procedure for aliens temporarily in the United States to adjust status to permanent resident status without having to travel abroad and undergo consular processing. 

Although it has since been amended many times, the INA remains the foundation of current immigration law in the United States.

3. Post-1952 Developments

Congress amended the INA in 1965 to abolish the National Origins Quota System, creating in its place separate quotas for immigration from the eastern and western hemispheres. [7]  These amendments also established a revised preference system of six categories for family-based and employment-based categories, and added a seventh preference category for refugees. Finally, the law introduced an initial version of what has evolved into today’s permanent labor certification program. 

Further amendments in 1976 and 1978 ultimately combined the eastern and western hemisphere quotas into a single worldwide quota system which limited annual immigration from any single country to 20,000 and established an overall limit of 290,000 immigrants per year. [8] 

The Refugee Act of 1980 established a separate immigration program for refugees, eliminating the existing seventh preference category, and formally adopted the legal definition of “refugee” used by the United Nations. [9] 

The Immigration Reform and Control Act (IRCA) of 1986 provided a pathway for obtaining permanent resident status to certain agricultural workers and undocumented aliens who had been continuously present in the United States since before January 1, 1982. [10] IRCA also increased immigration enforcement at U.S. borders and established a program which, for the first time in history, required U.S. employers to verify all newly hired employees’ work authorization in the United States. This is sometimes called the employer sanctions program or the I-9 program.

Congress next enacted the Immigration Marriage Fraud Amendments of 1986 (IMFA) with the goal of deterring immigration-related marriage fraud. [11] IMFA’s key provision stipulated that aliens who obtain immigrant status based on a marriage existing for less than two years be granted lawful permanent residence initially on a conditional basis. This conditional status may be converted to full permanent resident status after two years, generally upon a showing that the conditional resident and his or her U.S. citizen spouse entered into the marriage in good faith and continued to share a life together.  

4. Immigration Act of 1990

Congress made the most sweeping changes to the original INA by passing the Immigration Act of 1990 (IMMACT 90). [12]  Key provisions adopted by IMMACT 90 include:

  • Significantly increased the worldwide quota limits on permanent immigration from 290,000 to 675,000 per year (plus up to another 125,000 for refugees);

  • Established separate preference categories for family-based and employment-based immigration, including moving several special immigrant categories into the employment-based preferences and adding a new category for immigrant investors;

  • Established the Diversity Visa Program, making immigrant visas available to randomly selected aliens coming from countries with historically low rates of immigration;

  • Created several new nonimmigrant work visa categories: O, P, Q, and R; and

  • Reorganized and expanded the types of qualitative bars to U.S. entry, known as inadmissibility or exclusion grounds.

Congress continued to refine the U.S. immigration system by enacting two laws in 1996, the Antiterrorism and Effective Death Penalty Act [13] and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), [14] which in part were intended to improve border control, expand worksite enforcement of the employer sanctions program, and enhance removal of criminal and other deportable aliens. These laws also introduced the concept of unlawful presence as an exclusion ground, expanded the definition of aggravated felon, and eliminated or greatly restricted the scope of judicial review involving certain administrative actions and decisions by U.S. immigration authorities. 

5. Special Adjustment of Status Provisions

Over the years, Congress has created several special adjustment programs that apply to relatively small numbers of aliens who meet highly particularized criteria. Most of these programs are found in laws that are not part of the INA. 

C. Legal Authorities [15]

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

  • INA 2098 CFR 209 – Adjustment of status of refugees

Footnotes


1. [^] See 1921 Emergency Quota Law, Pub. L. 67-5 (May 19, 1921). See Immigration Act of 1924, also known as the National Origins Act or the Johnson–Reed Act, Pub. L. 68-139 (May 26, 1924).

2. [^] This process is known as “consular processing.” 

3. [^] See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, Section 7.3a. See Jain v. INS, 612 F.2d 683 (2nd Cir. 1979).

4. [^] See Abraham D. Sofaer, The Change of Status Adjudication: A Case Study of the Informal Agency Process, 1 J. Legal Studies 349, 351 (1971).

5. [^] Also known as the Smith Act, Pub. L. 76-670 (June 28, 1940).

6. [^] This Act is also referred to as the McCarran-Walter Act, Pub. L. 82-414 (PDF) (June 27, 1952).

7. [^] See Pub. L. 89-236 (PDF) (October 3, 1965).

8. [^] See Pub. L. 95-412 (PDF) (October 5, 1978).

9. [^] See Pub. L. 96-212 (PDF) (March 17, 1980).

10. [^] See Pub. L. 99-603 (PDF) (November 5, 1986).

11. [^] See Pub. L. 99-639 (PDF) (November 10, 1986).

12. [^] See Pub. L. 101-649 (November 29, 1990).

13. [^] See Pub. L. 104-132 (PDF) (April 24, 1996).

14. [^] See Pub. L. 104-208 (PDF) (September 30, 1996).

15. [^] This is not an exhaustive list of the legal foundations of adjustment of status. Each part of this volume contains extensive lists of legal authorities relevant to the specific adjustment of status provisions discussed.

Chapter 2 - Eligibility Requirements

A. Who Is Eligible to Adjust Status

The Immigration and Nationality Act (INA) and certain other federal laws provide over forty different ways for aliens toadjust status to lawful permanent residence. Aliens may only adjust under a particular basis if they meet the eligibility requirements for that basis at the time of filing the Application to Register Permanent Residence or Adjust Status (Form I-485). Eligibility requirements vary, depending on the specific basis for adjustment. [1] 

Immigrant Categories

Aliens eligible for adjustment of status generally may apply based on one of the following immigrant categories or basis for adjustment:

  • Immediate relative of a U.S. citizen; [2] 

  • Other relative of a U.S. citizen or relative of a lawful permanent resident under a family-based preference category; [3] 

  • Person admitted to the United States as a fiancé(e) of a U.S. citizen;

  • Widow(er) of a U.S. citizen;

  • Violence Against Women Act (VAWA) self-petitioner;

  • Alien worker under an employment-based preference category; [4] 

  • Alien entrepreneur;

  • Special immigrant; [5] 

  • Human trafficking victim;

  • Crime victim;

  • Person granted asylum status;

  • Person granted refugee status;

  • Person qualifying under certain special programs based on certain public laws; [6] 

  • Diversity Visa program; 

  • Private immigration bill signed into law; 

  • Other eligibility under a special program not listed above (for example, Nicaraguan Adjustment and Central American Relief Act (NACARA) [7] Section 202); 

  • Adjustment of status under INA 245(i); or

  • Derivative applicant (filing based on a principal applicant).

Specific eligibility requirements for each immigrant category are discussed in the program-specific parts of this volume.

B. Who is Not Eligible to Adjust Status

Aliens are generally not eligible for adjustment of status if one or more of the following bars to adjustment or grounds of inadmissibility apply. However, adjustment bars do not apply to every type of adjustment pathway. Furthermore, different inadmissibility grounds may apply to different adjustment pathways. 

Therefore, applicants may still be able to adjust under certain immigrant categories due to special exceptions or exemptions from the adjustment bars, inadmissibility grounds, or access to program-specific waivers of inadmissibility or other forms of relief.

1. Bars to Adjustment

Depending on how an alien entered the United States or if an alien committed a particular act or violation of immigration law, he or she may be barred from adjusting status. With certain exceptions, some aliens ineligible for adjustment of status under INA 245 include any alien who: [8] 

  • Last entered the United States without being admitted or paroled after inspection by an immigration officer; [9] 

  • Last entered the United States as a nonimmigrant crewman; [10] 

  • Is now employed or has ever been employed in the United States without authorization; [11] 

  • Is not in lawful immigration status on the date of filing his or her application; [12] 

  • Has ever failed to continuously maintain a lawful status since entry into the United States, unless his or her failure to maintain status was through no fault of his or her own or for technical reasons; [13] 

  • Was last admitted to the United States in transit without a visa; [14] 

  • Was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as avisitor under the Guam or CNMI Visa Waiver Program and who is not a Canadian citizen; [15] 

  • Was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; [16] 

  • Is deportable due to involvement in a terrorist activity or group; [17] 

  • Is seeking employment-based adjustment of status and who is not maintaining a lawful nonimmigrant status on the date of filing this application; [18] 

  • Has ever violated the terms of his or her nonimmigrant status; [19] 

  • ​Is a conditional permanent resident; [20] and

  • Was admitted as a nonimmigrant fiancé(e), but did not marry the U.S. citizen who filed the petition or any alien who was admitted as the nonimmigrant child of a fiancé(e) whose parent did not marry the U.S. citizen who filed the petition. [21] 

2. Grounds of Inadmissibility

Generally, an adjustment applicant is inadmissible to the United States and ineligible for adjustment of status if one or more of the grounds of inadmissibility apply to him or her. [22] However, if the adjustment applicant is eligible for and is granted a waiver of the ground of inadmissibility or another form of relief, the applicant may remain eligible for adjustment. [23] 

3. Other Eligibility Requirements

Government Officials and Specialty Workers

Foreign government officials, representatives to international organizations, treaty traders and treaty investors (A, E, and G nonimmigrants) may have certain rights, privileges, immunities and exemptions not granted to other nonimmigrants. If such a nonimmigrant seeks adjustment of status, he or she must waive those rights, privileges, immunities and exemptions by filing a waiver application (Form I-508, or a Form I-508F in the case of French nationals). 

An Australian specialty occupation worker (E-3 nonimmigrant) has no special rights, privileges, immunities or exemptions to waive and therefore is not required to submit the waiver. Although these workers can be classified as a treaty trader, [24] the waiver requirement was established prior to the creation of the Australian specialty occupation worker classification.

In addition, any applicant admitted in an A, G, or NATO nonimmigrant status must file an Interagency Record of Request – A, G or NATO Dependent Employment Authorization or Change/Adjustment to/from A, G or NATO Status (Form I-566) with the Department of State.

Forms I-508, I-508F, and I-566 may all be concurrently filed with the adjustment application. 

Certain Exchange Visitors [25] 

Certain exchange visitors (J-1 and J-2 nonimmigrants) [26] admitted to the United States are subject to a two-year foreign residence requirement. [27] These exchange visitors generally must return to the country of their last residence or the country of their nationality for a continuous two-year period after the end of their exchange program before they can apply for permanent residence. If such exchange visitors do not return to the country of their last residence or to their home country for at least two years after the end of their exchange program, they may be ineligible for adjustment of status. However, certain exchange visitorsmay be eligible for a waiver of the requirement through an Application for Waiver of the Foreign Residence Requirement (Form I-612). [28] 

Officers should first adjudicate the waiver request, as denial of the waiver necessarily renders the applicant ineligible for adjustment of status. Officers should not hold adjustment cases while waiting for either the applicant to submit a waiver application or the Department of State to make a recommendation on a waiver application and instead should deny the adjustment application for ineligibility based on the evidence of record. 

Footnotes


1. [^] For more information, see Chapter 6, Adjudicative Review [7 USCIS-PM A.6]. See Part B, 245(a) Adjustment [7 USCIS-PM B].

2. [^] Spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older). See INA 201(b)(2).

3. [^] This category includes the following family-based preference immigrant classifications: unmarried sons and daughters, 21 years of age and older, of U.S. citizens; spouses and unmarried children, under 21 years of age, of lawful permanent residents; unmarried sons and daughters, 21 years of age and older, of lawful permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older). See INA 203(a)

4. [^] This includes priority workers (including aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers); members of the professions holding advanced degrees or aliens of exceptional ability; or skilled workers, professionals, and other workers. See INA 203(b)

5. [^] This includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain international broadcasters, certain G-4 international organization employee or family member or NATO-6 employee or family member, certain U.S. armed forces members, Panama Canal Zone employees, certain employees or former employees of the U.S. government abroad, and certain physicians. See INA 101(a)(27)

6. [^] Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (PDF) (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386 (PDF), 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162 (PDF), 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554 (PDF), 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167 (PDF), 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316 (PDF), as amended, 8 CFR 245.3INA 101(a)(15)(A)(i)-(ii) and INA 101(a)(15)(G)(i)-(ii).

7. [^] See Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997).

8. [^] See INA 245(a)-(k) for a full list. Some of the adjustment bars listed may not apply to all applicants. For example, certain adjustment bars do not apply to immediate relatives, VAWA-based applicants, certain special immigrants, or employment-based immigrants. 

9. [^] See 8 CFR 245.1(b)(3).

10. [^] See INA 245(c)(1) and 8 CFR 245.1(b)(2).

11. [^] See INA 245(c)(2) and 8 CFR 245.1(b)(4). See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certainspecial immigrants are exempt from these bars.

12. [^] See INA 245(c)(2) and 8 CFR 245.1(b)(5). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

13. [^] See INA 245(c)(2) and 8 CFR 245.1(b)(6). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar. For information on fault of the applicant or technical reasons, see 8 CFR 245.1(d)(2).

14. [^] See 8 CFR 245.1(b)(1).

15. [^] See INA 245(c)(4) and 8 CFR 245.1(b)(7). Immediate relatives, as defined in INA 201(b), are exempt from this bar.

16. [^] See INA 245(c)(4) and 8 CFR 245.1(b)(8). Immediate relatives, as defined in INA 201(b), are exempt from this bar.

17. [^] See INA 245(c)(6).

18. [^] See INA 245(c)(7) and 8 CFR 245.1(b)(9)

19. [^] See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

20. [^]See 8 CFR 245.1(c)(5).

21. [^] See INA 245(d) and 8 CFR 245.1(c)(6).

22. [^] See INA 212. See Volume 8, Admissibility [8 USCIS-PM].

23. [^] See Volume 9, Waivers [9 USCIS-PM].

24. [^] See INA 101(a)(15)(E).

25. [^] See INA 212(e) and 8 CFR 245.1(c)(2).

26. [^] See INA 101(a)(15)(J).

27. [^] See INA 212(e). Even when the J-1 nonimmigrant visa is obtained through fraud, the alien may still be subject to the foreign residency requirement. See Matter of Park (PDF), 15 I&N 472 (BIA 1975). The foreign residence requirement does not apply to a J-2 spouse or child of a J-1 nonimmigrant who naturalized under the Military Accessions Vital to the National Interest (MAVNI) program.

28. [^] Some waivers do not involve the filing of a form or fee, such as waivers based on requests by a U.S. government agency or state department of public health, or based on an official statement by the alien’s country that it does not object to waiving the two-year foreign residence requirement. 

Chapter 3 - Filing Instructions

A. Form Instructions

An alien typically applies for adjustment of status using the Application to Register Permanent Residence or Adjust Status (Form I-485). An applicant must file the adjustment application according to the instructions and regulations in existence at the time of filing. The form instructions have the same force as a regulation and provide detailed information an applicant must follow.[1] Therefore, an applicant should access the most recent version of the form on USCIS.gov prior to filing.

B. Definition of Properly Filed [2]

An applicant must properly file the adjustment application. Properly filed refers to an adjustment application filed:

  • At the correct filing location;

  • With the correct filing fees unless granted a waiver;

  • With the proper signature of the applicant; and

  • When an immigrant visa is immediately available. [3] 

If the application is filed without meeting these requirements, USCIS rejects and returns the application. The application is not considered properly filed until it has been given a receipt date (stamped to show the actual date of receipt) by the proper location with jurisdiction over the application, including a USCIS Lockbox. Applications that are rejected and returned to the applicant do not retain a filing date. [4] 

1. Filing Location

The filing location for an adjustment application is based on the filing category of the applicant. An applicant must verify the filing location by accessing current instructions on the USCIS public website prior to filing. USCIS may relocate an application filed at the wrong location in its discretion or reject the application for improper filing. 

2. Fees

An adjustment of status applicant must submit the proper fees for both the application and collection of biometrics as specified in the form instructions, unless a fee waiver has been granted. [5] Biometrics fees are not required for applicants under 14 years of age or 79 years of age or older at time of filing. If an applicant turns 14 after the adjustment application is submitted but prior to final adjudication, USCIS notifies the applicant of the requirement to submit the biometric fee.

In order to lessen the financial burden on families with multiple family members applying for adjustment at the same time, children under 14 years of age filing together with at least one parent pay a lower fee. Adjustment applicants filing based on their refugee status are not required to pay any fees. [6] 

Fee Waivers

While adjustment application fees are not generally waived, adjustment applicants in certain categories may apply for a fee waiver due to their inability to pay. [7] An applicant seeking a fee waiver should submit, with the adjustment application, a Request for Fee Waiver (Form I-912) or a written request, along with any required evidence of the applicant’s inability to pay the filing fee. [8] 

Refugees adjusting status are automatically exempt from paying the adjustment of status filing fee and biometric services fee and are not required to demonstrate inability to pay. [9] 

If USCIS denies a fee waiver request, USCIS rejects the application as improperly filed. 

3. Signature Requirements

All applications must be properly signed by the applicant. 

Signature Requirements

Acceptable Signatures

Unacceptable Signatures

  • Original signature in ink

  • Handwritten “X” in ink

  • Parent or legal guardian of a child under 14 years of age

  • Legal guardian of a mentally incompetent person

  • Any signature in pencil 

  • Typed name on signature line

  • Attorney or representative signing for the applicant or the applicant’s child

4. Visa Availability Requirement

Generally, aliens seeking adjustment under INA 245(a) may only file an adjustment application when an immigrant visa number is available in the classification under which they qualify. [10] 

Immediate relatives of U.S. citizens are not subject to numerical limitations. Therefore, an immigrant visa is always immediately available to immediate relatives at the time they file an adjustment application. 

In contrast, applicants seeking adjustment under an employment-based or family-based preference category must generally wait until a visa is immediately available before they may file their adjustment application. [11] These applicants can determine if a visa is available and when to file their adjustment application by referring to the U.S. Department of State (DOS) Visa Bulletin

A new Visa Bulletin is published on a monthly basis. DOS posts two charts per visa preference category in each month’s DOS Visa Bulletin: 

  • Application Final Action Dates chart, which provides dates when visas may finally be issued; and 

  • ​Dates for Filing Applications chart, which provides the earliest dates when applicants may be able to apply. 

In general, adjustment applicants must use the Application Final Action Dates chart to determine whether a visa is available. However, if USCIS determines there are immigrant visas available for the filing of additional adjustment applications, the Dates for Filing Applications chart may be used to determine when to file an adjustment of status application with USCIS. [12] USCIS and DOS provide information on which chart should be used in a particular month on the USCIS website and DOS Visa Bulletin

C. Concurrent Filings [13]

In general, the beneficiary of an immigrant visa petition may file for adjustment of status only after USCIS has approved the petition and a visa is available. In certain instances, the beneficiary may file an adjustment application together or concurrently with the underlying immigrant petition.

Concurrent filing of the adjustment application is possible only where approval of the underlying immigrant petition would make a visa number immediately available. Concurrent filing of the adjustment application is permitted in the following immigrant categories:

  • Family-based immigrants, including immediate relatives, and widow(er)s of a U.S. citizen;

  • Violence Against Women Act (VAWA) self-petitioner;

  • Employment-based immigrants in the 1st, 2nd, or 3rd preference categories;

  • Special immigrant Amerasians;

  • Special immigrant juveniles;

  • G-4 international organization employees, NATO-6 employees, and certain family members; and

  • Certain members of the U.S. armed forces. 

D. Jurisdiction

USCIS has the legal authority to adjudicate most adjustment of status cases. An Immigration Judge (IJ) of the Executive Office for Immigration Review (EOIR) has jurisdiction in certain situations. [14] Generally, the IJ has jurisdiction if an applicant is in removal proceedings, even if the proceedings have been administratively closed or if there is a final order of deportation or removal which has not yet been executed. 

The IJ does not have jurisdiction of applications filed by aliens in deportation or removal proceedings if they are determined to be “arriving aliens.” [15] However, there is one exception to this general rule as well. The IJ has jurisdiction over an adjustment application filed by an “arriving alien” in deportation or removal proceedings if all of the following apply:

  • The adjustment application was properly filed with USCIS while the “arriving alien” was in the United States;

  • The applicant departed from and returned to the United States based on a grant of an advance parole document to pursue the previously filed adjustment application;

  • USCIS denied the adjustment application; 

  • DHS placed the “arriving alien” in removal proceedings either upon return to the United States on the advance parole document or after USCIS denied the adjustment application; and

  • The applicant is seeking to renew his or her previously denied application for adjustment of status in proceedings.

The IJ has jurisdiction only with respect to the application filed before the applicant left with the advance parole document. If the applicant is pursuing a new application for adjustment of status based on a new ground such as a new petition, the IJ does not have jurisdiction over the new claim. USCIS has jurisdiction over the application, even if the applicant was placed in proceedings after having been paroled into the United States to pursue a previously filed application for adjustment of status that was ultimately denied by USCIS.

USCIS has jurisdiction to adjudicate an adjustment application when the IJ does not have jurisdiction, including when “arriving aliens” do not meet all of the above criteria. USCIS continues to retain jurisdiction over such an arriving alien’s adjustment application even if the applicant has an unexecuted final order of removal. [16] A removal order is considered executed once immigration authorities remove the alien from the United States or the alien departs from the United States.[17] 

Effect of Departure

In general, an adjustment applicant who departs the United States abandons his or her application unless USCIS previously granted them advance parole for such absences. [18] 

Footnotes


1. [^] See 8 CFR 103.2(a)(1).

2. [^] See 8 CFR 103.2(a)(1) (for location), 8 CFR 103.2(a)(7)(i) (for filing fee and signature), and 8 CFR 245.2(a)(2)(i) (for available visa).

3. [^] See INA 245(a)(3) and 8 CFR 245.2(a)(2)

4. [^] See 8 CFR 103.2(a)(7).

5. [^] See 8 CFR 103.7.

6. [^] See 8 CFR 103.7(b)(1)(i)(U)(3).

7. [^] See 8 CFR 103.7(c). Biometrics fees may also be waived.

8. [^] For more information, see the USCIS website.

9. [^] See 8 CFR 103.7(b)(1)(i)(U)(3).

10. [^] For more information, see Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

11. [^] USCIS rejects adjustment applications filed before a visa number is available. See 8 CFR 245.2(a)(2).

12. [^] USCIS considers several factors to determine if there is a greater supply of visas than the demand for those visas. To determine visa availability, USCIS compares the number of visas available for the remainder of the fiscal year with documentarily qualified visa applications reported by DOS; pending adjustment of status applications reported by USCIS; and historical drop-off rate of applicants for adjustment of status (for example, denials, withdrawals, and abandonments. 

13. [^] See 8 CFR 245.2(a)(2)(i)(B) and 8 CFR 245.2(a)(2)(i)(C)

14. [^] See 8 CFR 245.2(a)(1) and 8 CFR 1245.2(a)(1).

15. [^] See 8 CFR 1.2 for definition of an “arriving alien.” 

16. [^] See Matter of Yauri (PDF), 25 I&N Dec. 103 (BIA 2009). 

17. [^] See INA 101(g)

18. [^] See 8 CFR 245.2(a)(4)(ii). In certain circumstances, a departure does not cause abandonment of the adjustment application. See 8 CFR 245.2(a)(4)(ii)(B)-(D)

Chapter 4 - Documentation

A Record of Proceeding (ROP) is created when an adjustment application is received. While not every ROP contains the same exact information or documents, all ROPs are created in the same format and documents are placed in the file from top to bottom. 

A. Initial Evidence

When reviewing an adjustment of status application, the officer must verify that the following evidence is contained in the A-file and is placed in ROP order on the left side of the file.

1. Photographs

Two passport-style photographs must be included. The photographs must be:

  • 2” x 2” in color with full face, frontal view;

  • On a white to off-white background, printed on thin paper with a glossy finish; and

  • Be un-mounted and un-retouched.

The photographs must have been taken within 30 days of filing. [1] 

2. Application to Register Permanent Residence or Adjust Status (Form I-485)

Aliens apply for permanent resident status by filing Form I-485 at the appropriate time with the correct fee and necessary documentation to establish eligibility.

3. Birth Certificate

A copy of the applicant’s foreign birth certificate or sufficient secondary evidence of birth must be submitted to establish the applicant’s country of citizenship for visa chargeability, identity, and existence of derivative relationships. [2] Each foreign birth certificate must include a certified English translation. [3] 

Officers should check the Department of State's Country Reciprocity Schedule to determine availability of birth certificates as well as acceptable secondary evidence of birth for specific countries.

4. Evidence of Admission or Parole

In most cases, an adjustment applicant is required to provide evidence of inspection and admission or parole. [4] Typical documents that prove inspection and admission or parole include: 

  • Copy of the entry or parole stamps in the applicant’s passport issued by U.S. Customs and Border Protection (CBP);

  • Arrival/Departure Record (Form I-94); 

  • Form I-94 issued by USCIS at the bottom of a Notice of Action (Form I-797); or

  • Authorization for Parole of an Alien into the United States (Form I-512 or I-512L).

If an applicant appears at an interview with none of the above evidence but claims to have been “waved in” at the port of entry (POE), the applicant may still be considered to have been inspected and admitted in some cases. [5] The burden of proof is on the applicant to provide sufficient evidence to establish eligibility. [6] 

5. Affidavit of Support (Form I-864, I-864A, I-864EZ and I-864W)

An affidavit of support is required for most immediate relative and family-based immigrants. The affidavit of support is also required for any employment-based immigrant whose petitioner is the applicant’s spouse, parent, child, adult son or daughter, or sibling and in which the applicant’s family has 5% or more ownership in the business. The purpose of this form is to show the applicant has adequate means of financial support and is unlikely to become a public charge. [7] 

6. Report of Medical Examination and Vaccination Record (Form I-693)

Form I-693 is required for adjustment of status applicants who either did not receive a medical examination prior to their admission to the United States or who do not have evidence of an overseas medical examination in their file. A medical examination and vaccination record must be documented for most adjustment of status applications and completed as closely as possible to submission of the adjustment application. [8] If not completed overseas, the medical examination must be completed by a designated civil surgeon in the United States and documented on this form. [9] 

7. Certified Copies of Arrest Records and Court Dispositions

All applicants that have previously been arrested are required to submit original or court-certified copies of the arrest records, court dispositions or both. If an applicant’s fingerprints reveal an arrest record, the applicant’s A-file should contain a Record of Arrest and Prosecution (RAP) sheet.

If there is an arrest record, the applicant must submit an original or certified copy of the official arrest report or other statement by the arresting agency and official court records showing the disposition of all arrests, detentions, or convictions regardless of where in the world the arrest occurred. Applicants are not required to submit records for minor traffic violations, records that are not drug or alcohol-related, did not result in an arrest, or in which the only penalty was a fine of less than $500 or points on a driver’s license.

8. Evidence of Underlying Basis to Adjust Status [10]

An officer should verify the immigrant category indicated on Form I-485 as the basis for adjustment. The applicant can attach: 

  • A copy of the Form I-797 Approval Notice for an approved underlying immigrant visa petition;

  • The underlying immigrant visa petition together with the Form I-485, if concurrently filing; or 

  • A copy of the Form I-797 Receipt Notice for an underlying immigrant visa petition that remains pending. 

Certain adjustment applicants, however, are not required to have an underlying petition. These applicants include:

  • Asylees;

  • Refugees; 

  • Applicants eligible for special adjustment of status programs based on certain public laws; [11] 

  • Persons born under diplomatic status in the United States; [12] 

  • Persons applying for Creation of Record; and

  • Applicants who obtain relief through a private immigration bill signed into law.

In these cases, the officer should review any specific eligibility and evidentiary requirements that apply to the program or law to ensure the applicant is eligible to adjust on that basis.

9. Additional Evidence for Eligibility

Additional evidence is required for certain applicants in order to meet specific eligibility requirements. For instance, an applicant may need to submit marriage certificates or divorce decrees to establish the required relationship for the classification. Additionally, applicants under most preference categories may need to submit evidence that they are not subject to any bars to adjustment as a result of failing to maintain their nonimmigrant status, working without authorization, or otherwise violating the terms of their nonimmigrant status. 

B. Unavailability of Records and the Use of Affidavits

There are certain situations where an applicant may not be able to provide the required primary evidence but may be able to submit secondary evidence. When submitting secondary evidence, an applicant must establish that the required primary document is unavailable or does not exist. [13] 

1. Establishing Required Primary Document Is Unavailable or Does Not Exist [14]

To establish that a required primary document is unavailable or does not exist, an applicant must submit letters of certification of non-existence issued by the appropriate civil authority. These letters must:

  • Be an original written statement from a civil authority on official government letterhead;

  • Establish the nonexistence or unavailability of the document;

  • Indicate the reason the record does not exist; and

  • Indicate whether similar records for the time and place are available.

Certification of non-existence from a civil authority is not required where the Department of State’s Reciprocity Schedule indicates this type of document generally does not exist. An officer should consult the Reciprocity Schedule before issuing a Request for Evidence (RFE) for a missing document that is required. 

If an applicant is unable to obtain a letter of certification of non-existence issued by the appropriate civil authority, the applicant or petitioner may submit evidence that repeated good faith attempts were made to obtain the required documentation.

2. Secondary Evidence

Once an applicant has demonstrated that a required primary document is unavailable, the applicant may submit appropriate secondary evidence, such as church or school records pertaining to the facts at issue.

3. Affidavits

If an applicant has demonstrated unavailability of both a required primary and secondary document, the applicant must submit at least two affidavits, or sworn written statements, pertaining to the facts at issue. Such affidavits must be given by: 

  • Persons who are not parties to the underlying petition; and

  • Persons who have direct personal knowledge of the events and circumstances in question. [15] 

In order for an applicant to meet his or her burden of proof, the officer must examine the evidence for its probative value and credibility. For these reasons, an affidavit should include:

  • The full name, address, and contact information of the affiant (person giving the sworn statement), including his or her own date and place of birth, and relationship (if any) to the applicant;

  • A copy of the affiant’s government-issued identification, if available;

  • Full information concerning the facts at issue; and

  • An explanation of how the affiant has direct personal knowledge of the relevant events and circumstances.

Affidavits that cannot be verified carry no weight in proving the facts at issue.

Persons submitting affidavits may be relatives of the applicant and do not necessarily have to be U.S. citizens. [16] 

C. Requests for Evidence (RFE)

An officer must review all documents submitted and contained within the applicant’s A-file to:

  • Determine acceptability; 

  • Ensure all required documents are present; and

  • Avoid issuing an RFE requesting information already available in the A-file. 

Requests for Evidence (RFE)

Scenario

Officer Action

Any required initial evidence is incomplete, missing, or raises eligibility concerns

  • Prepare and issue an RFE to provide the applicant an opportunity to establish his or her eligibility; or

  • Deny the application. [17] 

All required initial evidence is submitted, but the evidence submitted does not establish eligibility

  • Prepare and issue an RFE for additional information;

  • Prepare and issue a Notice of Intent to Deny (NOID) with the basis for the proposed denial and require the applicant to submit a response; or

  • Deny the application for ineligibility. [18] 

A family member’s A-file contains a document required to establish eligibility 

  • Make a copy of the required document;

  • Place the copy in the applicant’s A-file in the proper ROP order; and

  • Return the original document to the family member’s A-file, in proper ROP order.

Originals of applications and petitions must be submitted unless previously filed with USCIS. Documents typically submitted as originals with the adjustment application may include a concurrently filed petition, the medical examination report, and affidavits.

An applicant only needs to submit original documents required by regulation or form instructions and necessary to support the application. An official original document issued by USCIS or by legacy INS does not need to be submitted, unless requested. Unless otherwise required by applicable regulations or form instructions, a legible photocopy of any other supporting document may be submitted.

An officer, however, may request an original document if there is reason to question the authenticity of the document for which a photocopy has been submitted. If originals are requested to validate a photocopy, they should be returned to the applicant after review and verification unless regulations require the originals to be submitted and retained. Failure to submit a requested original document may result in denial or revocation of the underlying application or benefit. [19] An officer may check available systems to validate evidence submitted by the applicant, as well as to verify claimed entries, prior deportations, visa issuance, and criminal history.

Footnotes


1. [^] See Instructions to Form I-485. See examples at the U.S. Department of State website.

2. [^] See 8 CFR 103.2(b)(2)

3. [^] See 8 CFR 103.2(b)(3).

4. [^] See INA 245(a).

5. [^] See Matter of Quilantan (PDF), 25 I&N Dec. 285 (BIA 2010). For more information, see Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled”, Subsection 7, Waived Through at Port-of-Entry [7 USCIS-PM B.2(A)(7)].

6. [^] See 8 CFR 103.2(b).

7. [^] See INA 213A. For detailed information on the requirements of the Affidavit of Support, see Chapter 6, Adjudicative Review, Section D, Determine Admissibility, Subsection 2, Affidavit of Support Under Section 213A of the Act (Form I-864) [7 USCIS-PM A.6(D)(2)].

8. [^] For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3]. 

9. [^] For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

10. [^] For more information, see Chapter 6, Adjudicative Review, Section A, Verify Underlying Basis to Adjust Status [7 USCIS-PM A.6(A)].

11. [^] Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (PDF) (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386 (PDF), 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162 (PDF), 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554 (PDF), 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167 (PDF), 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316 (PDF), as amended, 8 CFR 245.3INA 101(a)(15)(A)(i)-(ii), and INA 101(a)(15)(G)(i)-(ii).

12. [^] See 8 CFR 101.3 and 8 CFR 264.2.

13. [^] See 8 CFR 103.2(b)(2).

14. [^] See 8 CFR 103.2(b)(2)(ii).

15. [^] See 8 CFR 103.2(b)(2)(i).

16. [^] See 8 CFR 103.2(b)(2) for more information on submitting secondary evidence and affidavits.

17. [^] See 8 CFR 103.2(b)(8)(ii).

18. [^] See 8 CFR 103.2(b)(8)(iii).

19. [^] See 8 CFR 103.2(b)(5).

Chapter 5 - Interview Guidelines

All adjustment of status applicants must be interviewed by an officer unless the interview is waived by USCIS. [1] The decision to waive the interview should be made on a case-by-case basis. The interview enables USCIS to verify important information about the applicant to determine eligibility for adjustment. For family-based applications, USCIS generally requires the Form I-130 petitioner to appear for the interview with the principal adjustment of status applicant. In addition, derivatives are also required to appear regardless of the filing category.

During the interview, the officer verifies that the applicant understood the questions on the application and provides the applicant with an opportunity to revise any answers completed incorrectly or that have changed since filing the application. Any unanswered questions or incomplete answers on the application are resolved at the interview. If information is added or revised, the applicant should re-sign and date the application at the conclusion of the interview. [2] 

A. Waiving the Interview

1. General Waiver Categories

USCIS officers may determine, on a case-by case-basis, that it is unnecessary to interview certain adjustment of status applicants. The following list includes, but is not limited to, categories of cases where officers may decide to waive an interview: [3] 

  • Applicants who are clearly ineligible; [4] 

  • Unmarried children (under 21 years of age) of U.S. citizens if they filed a Form I-485 on their own (or filed a Form I-485 together with their family’s adjustment applications and every applicant in that family is eligible for an interview waiver);

  • Parents of U.S. citizens;

  • Asylees and refugees who were previously interviewed by a USCIS officer; [5] and

  • Unmarried children (under 14 years of age) of lawful permanent residents if they filed a Form I-485 on their own (or filed a Form I-485 together with their family’s adjustment applications and every applicant in that family is eligible for an interview waiver). 

If USCIS determines, however, that an interview for an applicant in any of the above categories is necessary, an officer conducts the interview. Likewise, if USCIS determines that an interview of an applicant in any other category not listed above is unnecessary, then USCIS may waive the interview.

2. Military Personnel Petitioners

USCIS may waive the personal appearance of the military spouse petitioner; however, the adjustment applicant must appear for an interview. USCIS makes every effort to reschedule these cases so that both the petitioner and adjustment applicant can attend the interview before deployment. The adjustment applicant may choose to proceed while the petitioner is abroad.

3. Incarcerated Petitioners

USCIS may waive the personal appearance of a U.S. citizen spouse petitioner who is incarcerated and unable to attend the adjustment of status interview. In these situations, the adjustment applicant must appear for an interview. An officer must take all the facts and evidence surrounding each case into consideration on a case-by-case basis when deciding whether to waive the U.S. citizen spouse petitioner’s appearance.

4. Illness or Incapacitation

An officer may encounter instances in which it may be appropriate to waive the personal appearance of an applicant or petitionerdue to illness or incapacitation. In all such instances, an officer must obtain supervisory approval to waive the interview.

B. Relocating Cases for Adjustment of Status Interviews

Unless USCIS determines that an interview is unnecessary, the case should be relocated to the field office with jurisdiction over the applicant’s place of residence once the case is ready for interview. 

The reasons for requiring an interview may include: 

  • Need to confirm the identity of the applicant;

  • Need to validate the applicant’s immigration status;

  • The applicant entered the United States without inspection, or there are other unresolved issues regarding the applicant’s manner of entry;

  • There are known criminal inadmissibility or national security concerns that cannot be resolved at a service center;

  • There are fraud concerns and the service center recommends an interview;

  • The applicant’s fingerprints have been rejected twice;

  • The applicant has a Class A medical condition that the service center cannot resolve through a Request for Evidence (RFE);

  • The applicant answered “Yes” to any eligibility question on the adjustment application, and the service center cannot determine eligibility through an RFE; or

  • The service center has not been able to obtain an applicant’s A-File, T-File, or receipt file (when the applicant has multiple files).

C. Interpreters

An applicant may not be fluent in English and may require use of an interpreter for the adjustment interview. At the adjustment interview, the interpreter should: 

  • Present his or her valid government-issued identity document and complete an interpreter’s oath and privacy release statement; and

  • Translate what the officer and the applicant say word-for-word to the best of his or her ability without adding the interpreter’s own opinion, commentary, or answer.

In general, a disinterested party should be used as the interpreter. An officer may exercise discretion, however, to allow a friend or relative of the applicant to act as interpreter. If the officer is fluent in the applicant’s preferred language, the officer may conduct the examination in that language without use of an interpreter. 

USCIS reserves the right to disqualify an interpreter provided by the applicant if the officer believes the integrity of the examination is compromised by the interpreter’s participation or the officer determines the interpreter is not competent to translate. 

Footnotes


1. [^] See 8 CFR 245.6.

2. [^] See 8 CFR 103.2(b)(7)

3. [^] See 8 CFR 245.6. USCIS is not required to waive the interview, even if an applicant falls within one of the categories listed in 8 CFR 245.6 or in this section.

4. [^] See 8 CFR 245.6 (refers to adjustment applicants clearly ineligible for adjustment of status based on INA 245(c) and 8 CFR 245.1). 

5. [^] An asylee or refugee derivative seeking adjustment of status who was not previously interviewed by a USCIS officer during the asylum or refugeeprocess must be interviewed as part of the adjustment of status adjudication. Such applicants are not eligible for an interview waiver. 

Chapter 6 - Adjudicative Review

This chapter provides steps that should be used as a general guideline for file review when determining if an applicant is eligible for adjustment of status:

General Guidelines for Adjudication of Adjustment of Status Application

  • Verify underlying basis

  • Determine ongoing eligibility

  • Verify visa availability (if applicable)

  • Determine admissibility

  • Determine if favorable discretion is warranted (if applicable)

A. Verify Underlying Basis to Adjust Status

To adjust status to a lawful permanent resident, an applicant must first be eligible for one of the immigrant visa categories established by the Immigration and Nationality Act (INA) or another provision of law. The officer must verify the status of any underlying immigrant visa petition or other basis for immigrating prior to adjudicating the adjustment application. 

In many cases, an underlying petition is used to form the basis for adjustment. Petitions are often already adjudicated and approved by the time the officer adjudicates the adjustment application. [1] If the underlying immigrant visa petition is still pending, the officer is responsible for determining if the beneficiary of the petition is eligible for the classification sought and adjudicating the petition prior to considering the adjustment application. 

While an applicant may have only submitted a Notice of Action (Form I-797) with his or her adjustment application that referenced the underlying petition, the petition itself should be contained within the A-file and must be reviewed prior to adjudicating the adjustment application. As a matter of procedure, any underlying petition is typically ordered prior to any interview and before final adjudication of Form I-485

There may be instances in which an adjustment applicant’s file is sent forward to the adjudicating officer prior to locating the petition. In this case, the officer should hold the final adjudication of the adjustment application in abeyance in order to locate the underlying petition and then verify that the petition is still valid and the applicant remains eligible for the classification.

There may be instances where a petition is lost. For example, there may be proof the petition was filed but USCIS cannot locate the petition, and the petition was not forwarded to the National Visa Center. If a petition is lost, the applicant must recreate the petition at no additional fee. The officer then verifies the underlying basis of adjustment or adjudicates the replacement petition if the original was still pending. A recreated petition retains the same priority date as the original lost petition.

Security Checks and National Security Concerns

USCIS conducts background checks on all applicants for adjustment of status to enhance national security and protect the integrity of the immigration process by ensuring that USCIS grants lawful permanent resident status only to those applicants eligible for the requested benefit. The officer must ensure that all security checks are completed, unexpired, and resolved as necessary prior to adjudicating an adjustment application. 

In general, a national security concern exists when a person or organization has been determined to have a link to past, current, or planned involvement in an activity or organization involved in terrorism, espionage, sabotage, or the illegal transfer of goods, technology, or sensitive information. [2] 

B. Determine Ongoing Eligibility

After determining the classification requested, the officer should review all the eligibility requirements for that particular classification to ensure the applicant remains eligible. As with all applications, an applicant must remain eligible for adjustment of status from the time of filing through final adjudication. [3] 

If an underlying immigrant visa petition provides the basis for adjustment and has already been approved, the officer should confirm that a valid qualifying relationship continues to exist in a family-based case or that a qualifying job offer still exists in an employment-based case. While specific family-based, employment-based, and special immigrant considerations are covered in detail in other parts of this volume, the officer should note that changes to marital status or age-out issues may impact family-based or derivative cases just as changes in employment, withdrawal of a job offer, or the failure of a petitioner’s business may affect employment-based cases. 

The officer should also confirm that the applicant continues to meet all eligibility requirements through the date of final adjudication, including reviewing the following:

1. Violations of Status and Other Bars to Adjustment

If applying under INA 245(a), an applicant must have been either inspected and admitted, or inspected and paroled, and must not be subject to any of the bars to adjustment specified in INA 245(c). These bars preclude certain aliens from adjusting status, including those who have violated their status, failed to maintain valid status, or worked without authorization. Most applicants must maintain their status up until the date of filing for adjustment of status, with the exception of those adjusting as immediate relatives and certain special immigrants. [4] 

Some employment-based adjustment applicants may overcome adjustment bars under the provisions of INA 245(k). In addition, some aliens who entered without inspection or are otherwise subject to adjustment bars may still be eligible to adjust status under the provisions of INA 245(i).

2. Qualifying Family Relationship Continues to Exist

If the applicant claims a family relationship on the immigrant visa petition, that relationship must remain intact until a decision on the adjustment application, in most circumstances. [5] The officer must confirm that the applicant remains eligible to adjust status based on the relationship claimed on the underlying immigrant visa petition. Failure to maintain the relationship disqualifies the applicant in most cases or, if not disqualifying, may be a negative discretionary factor in certain types of cases.

The officer should review documentation to establish that the relationship continues. This review may include Child Status Protection Act (CSPA) [6] age calculations to confirm that the applicant remains a child by definition. [7] 

In cases of derivatives following-to-join, the derivative’s qualifying relationship to the principal applicant must have existed when the principal beneficiary obtained lawful permanent resident status and continue to exist through final adjudication of the derivative’s adjustment application for the derivative applicant to remain eligible. [8] 

If the principal beneficiary becomes a permanent resident and loses his or her permanent resident status or naturalizes prior to the derivative’s adjustment, the derivative is no longer eligible for the classification as an accompanying or following-to-join family member. [9] Furthermore, a derivative may not be granted permanent resident status prior to the principal beneficiary’s obtaining permanent resident status, because the derivative has no right or eligibility for the classification apart from the eligibility of the principal beneficiary’s status, with the exception of U nonimmigrants, asylees, and refugees. [10] 

3. Continuing Validity of the Employment-based Petition

The officer should verify that the employment-based adjustment applicant’s Immigrant Petition for Alien Worker (Form I-140) remains valid. The officer should determine that the applicant is either employed by the petitioner or the job offer still exists, that the employer continues to have the financial means to employ the applicant. In addition, the officer should determine that the employer continues to be a viable business, including possessing a valid business license in the county, state or jurisdiction within which it is operating.

If the adjustment application has been pending for 180 days or more, the applicant may be eligible for adjustment portability. [11] Portability allows the applicant to accept an offer of employment with either the petitioner or a different employer in the same or similar occupational classification as the position for which the petition was approved. 

C. Verify Visa Availability

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued to aliens seeking to become U.S. permanent residents each year. U.S. Department of State (DOS) is the agency that allocates immigrant visa numbers. In most cases, an immigrant visa must be available at the time of filing the adjustment application and at the time of final adjudication, if approved.

1. Immediate Visa Availability

Congress gave immigration priority to immediate relative immigrants, defined as:

  • The spouses of U.S. citizens; 

  • The children (unmarried and under 21 years of age) of U.S. citizens;

  • The parents of U.S. citizens at least 21 years old; and 

  • Widows or widowers of U.S. citizens if the spouse files a petition within 2 years of the citizen’s death. [12] 

Immigrant visas for immediate relatives of U.S. citizens are unlimited, so the visas are always available. In other words, immediate relatives are exempt from the numerical restrictions of other immigrant categories; an immigrant visa is always immediately available at the time they file an adjustment application and at the time of final adjudication, if approved. 

Below are additional categories of aliens who are exempt from numerical restrictions and may file an adjustment of status application at any time or during the time period allowed by the applicable provision of law, provided they are otherwise eligible: [13] 

  • Persons adjusting status based on refugee or asylee status; [14] 

  • Persons adjusting status based on T nonimmigrant (human trafficking victim) status; [15] 

  • Persons adjusting status based on U nonimmigrant (crime victims) status; 

  • Persons adjusting status based on Special Agricultural Worker or Legalization provisions; [16] 

  • Persons adjusting status based on public laws with special adjustment of status programs; [17] and 

  • Persons who obtain relief through a private immigration bill signed into law.

Except for human trafficking victims and Section 13 adjustment based applicants, an officer does not need to review visa availability for applicants filing in the above categories at the time of final adjudication. This includes applicants who are immediate relatives.

2. Numerically Limited Visa Availability

Immigrant visa numbers for family-based and employment-based immigrant preference categories as well as the Diversity Visa program are limited, so they are not always immediately available. 

Family-sponsored preference visas are limited to a minimum of 226,000 visas per year and employment-based preference visas are limited to a minimum of 140,000 visas per year. [18] By statute, these annual visa limits can be exceeded where certain immigrant visa numbers from the previous fiscal year’s allocation were not fully used. Both categories are further divided into several sub-categories, each of which receives a certain percentage of the overall visa numbers as prescribed by law. In addition, there are limits to the percentage of visas that can be allotted based on an immigrant’s country of birth. [19] 

A visa queue (waiting list or backlog) forms when the demand is higher than the supply of visas for a given year in any category or country. To distribute the visas among all preference categories, DOS allocates the visas by providing visa numbers according to the prospective immigrant’s: 

  • Preference category; 

  • Country to which the visa will be charged (usually the country of birth); [20] and 

  • Priority date. 

Therefore, the length of time an applicant must wait in line before being eligible to file an adjustment application depends on: 

  • The demand for and supply of immigrant visa numbers; 

  • The per-country visa limitations; and

  • The number of visas allocated for the immigrant’s preference category. [21] 

3. Priority Dates

The priority date is used to determine an immigrant’s place in the visa queue. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. A prospective immigrant’s priority date can be found on Notice of Action (Form I-797) for the petition filed on his or her behalf. [22] The officer should verify the priority date by reviewing the actual immigrant petition or permanent labor certification application. 

Priority Dates for Family-Sponsored Preference Cases

For family-sponsored immigrants, the priority date is the date that the Petition for Alien Relative (Form I-130), or in certain instances the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), is properly filed with USCIS. 

Priority Dates for Employment-Based Preference Cases

For employment-based immigrants, the priority date is established on the earliest of:

  • The date the petition was properly filed with USCIS; [23] or

  • The date the permanent labor certification application [24] was accepted for processing by the Department of Labor (DOL),when a labor certification is required. [25] 

Classification Conversion

If applicable, an officer must take special priority date and visa classification rules into consideration when determining visa availability. There are some instances in which a petition filed and approved under one classification automatically converts to a new category due to circumstances that occurred since filing. [26] Although this does not affect the applicant’s priority date, it can affect visa availability. In addition, for certain family-based cases, the applicant can elect to opt-out of the classification conversion when it is advantageous to do so and when eligible. 

Using Earlier Priority Dates

An applicant may intend to use an earlier priority date than the one indicated on his or her latest petition. This situation may occur when the same petitioner in a family-based category has filed more than one petition on behalf of an alien for the same classification.[27] It may also occur in certain employment-based categories. Specifically, in the event that an applicant is the beneficiary of multiple approved employment-based petitions filed under 1st, 2nd, or 3rd preference, the applicant is entitled to the earliest priority date.[28] Similarly, an applicant with an approved Form I-526 filed on or after November 21, 2019, is entitled to the priority date of a previously approved 5th preference immigrant investor petition, including petitions whose approval was revoked on grounds other than those set forth below.[29]

The applicant typically alerts the officer of the intention to use the benefit of an earlier priority date by including an approval notice for the previous petition in the adjustment application packet.

When Earlier Priority Dates May Not Be Used

In general, an adjustment of status applicant may not be able to use an earlier priority date from a previous petition if any of the following occurs:

  • The petition was denied, terminated, or revoked for fraud, willful misrepresentation, or material error;[30]

  • The beneficiary is no longer eligible for the classification for which the petition was filed and does not qualify for automatic conversion;

  • DOS terminated the registration of an applicant who failed to timely file for an immigrant visa, thereby automatically revoking the petition;[31] or

  • The beneficiary has already used the petition to immigrate.

Applicants in the employment-based 1st, 2nd, and 3rd preference categories may not retain a priority date from an earlier approved petition to support a subsequent petition, if USCIS revoked the approval of the earlier petition because: the petition was approved in error, DOL revoked the labor certification associated with the petition, USCIS or DOS invalidated the labor certification associated with the petition, or due to fraud or the willful misrepresentation of a material fact.[32]

For Employment-Based 5th Preference Cases

As discussed above, the priority date may not be retained or conferred to any subsequently filed 5th preference immigrant petition if the alien was lawfully admitted to the United States for permanent residence using the priority date of the earlier approved petition or if USCIS revoked the approval of that petition based on a material error. Unique to the 5th preference, revocation of an approved petition for fraud or willful misrepresentation of a material fact is only a bar to priority date retention if the petitioner engaged in fraud or willfully misrepresented a material fact.[33]

4. Department of State Visa Bulletin

DOS publishes a monthly report of visa availability referred to as the Visa Bulletin. The monthly Visa Bulletin serves as a guide for issuing visas at U.S. consulates and embassies. USCIS also uses this guide to determine whether an Application to Register Permanent Residence or Adjust Status (Form I-485) may be accepted for filing and receive final adjudication. A visa must be available both at the time an applicant files Form I-485 and at the time USCIS approves the application. [34] 

DOS, in coordination with USCIS, revises the Visa Bulletin each month to estimate immigrant visa availability for prospective immigrants. [35] 

The officer should consult the Department of State’s Visa Bulletin to determine whether a visa was available at time of filing and at time of final adjudication and approval. The following table provides more information on how the officer should use the Visa Bulletin.

Using DOS Visa Bulletin to Determine Visa Availability

Numerically Limited Visa Preference Category

Relevant Visa Bulletin Chart at Time of Filing

Relevant Visa Bulletin Chart at Time of Final Adjudication

Family-Based Preference Categories

See Visa Bulletin in effect at the time the adjustment application was filed to determine which chart controls 

(Dates for Filing Family-Sponsored Visa Applications OR Application Final Action Dates for Family-Sponsored Preference Cases chart) 

Application Final Action Dates for Family-Sponsored Preference Cases chart that is current at the time the application is approved

Employment-Based Preference Categories (including Special Immigrant-Based Categories)

See Visa Bulletin in effect at the time the adjustment application was filed to determine which chart controls 

(Dates for Filing Employment-Based Visa Applications OR Application Final Action Dates for Employment-Based Preference Cases chart) 

Application Final Action Dates for Employment-Based Preference Cases chart that is current at the time the application is approved

Understanding the Visa Bulletin Charts

If the demand for immigrant visas is more than the supply for a particular immigrant visa preference category and country of chargeability, DOS considers the category and country oversubscribed and must impose a cut-off date to keep the allocation of visas within the statutory limits. 

Visas are available for a prospective immigrant when the immigrant’s priority date is earlier than the cut-off date shown in the relevant Visa Bulletin chart for his or her preference category and country of birth (and chargeability). 

For example, if the Visa Bulletin shows a date of 15DEC07 for China in the family-based 1st preference category (F1), visas are currently available for those immigrants who have a priority date earlier than Dec. 15, 2007. Sometimes the demand for immigrant visas is less than the supply in a particular immigrant visa preference category and country of birth (or country of chargeability). In this situation, the Visa Bulletin shows that category as “C.” This means that immigrant visa numbers are currently (or immediately) available to all qualified adjustment applicants and overseas immigrant visa applicants in that particular preference category and country of birth (and chargeability).

If the Visa Bulletin shows “U” in a category, this means that immigrant visa numbers are temporarily unavailable to all applicants in that particular preference category and country of birth (or country of chargeability).

5. Visa Retrogression

Sometimes a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression generally occurs when the annual limit for a category or country has been used up or is expected to be used up soon. When the new fiscal year begins on October 1, a new supply of visa numbers is available for allocation. Usually, but not always, the new supply returns the cut-off dates to where they were before retrogression.

In the past, DOS has notified USCIS that several visa preference categories have become fully subscribed within days of publication of the monthly Visa Bulletin. Despite this fact, applicable regulations [36] prevent USCIS from rejecting applications within that particular month, regardless of the actual availability of visa numbers.

If an officer encounters a case in which a visa was available at time of filing but is not available at time of final adjudication, the case should be retained, pre-processed, and adjudicated up to the point of final approval. If a particular applicant is ineligible for adjustment due to an issue not related to visa availability, the case may be denied accordingly because visa availability is not relevant.

All otherwise approvable employment-based and family-based cases located at a USCIS field office that do not have a visa available at the time of adjudication must be transferred to the appropriate USCIS office or Service Center once the case has been adjudicated up to the point of final adjudication. The officer should ensure that the interview and all other processing requirements, including resolution of security checks, have been completed prior to shipping the otherwise approvable case. 

Final adjudication cannot be completed until a visa has been requested and DOS approves the visa request. Once a visa number becomes available, a USCIS officer will complete a final review of the adjustment application to ensure the applicant continues to meet eligibility requirements at time of final adjudication. This includes updating any expired security checks and may also include issuing a Request for Evidence (RFE) if it is unclear whether the applicant is still eligible for the particular classification or may be subject to a bar to adjustment or an inadmissibility ground, particularly in those cases that have had a long-delayed final adjudication.

6. Derivatives

In order to prevent the separation of families, the spouse or children of a preference immigrant can accompany or follow to join the principal beneficiary of an immigrant visa petition. [37] Because the spouse and children do not independently have a basis to adjust status outside of their relationship to the principal immigrant, they derive their status from the principal and are therefore known as derivatives of the principal.

“Accompany” and “follow to join” are terms of art and not defined within the INA. DOS generally considers the derivative spouse or child to be accompanying the principal when issued an immigrant visa or adjusting status within six months of the date DOS issues a visa to the principal or the date the principal adjusts status in the United States. [38] In contrast, there is no specific time period during which a derivative must follow to join the principal. [39] 

Derivative Spouse

In general, the derivative spouse of a principal beneficiary may be accorded the same priority date and classification as the principal provided that:

  • The marriage between the principal and the derivative spouse existed at the time the principal either adjusted status or was admitted to the United States as a lawful permanent resident (LPR); [40] 

  • The marriage continues to exist at the time of the derivative’s adjustment of status; and

  • The principal remains in LPR status at the time the derivative adjusts status. [41] 

Derivative Child

The derivative child of a principal beneficiary may be accorded the same priority date and classification as the principal provided that:

  • The derivative child was acquired prior to the time the principal either adjusted status or was admitted to the United States as an LPR; 

  • The child continues to qualify as a child under the statutory definition (unmarried and under 21 years old) [42] or otherwise under the provisions of the CSPA, if applicable; [43] and

  • The principal remains in LPR status at the time the derivative adjusts status. [44] 

A principal’s natural child born after the principal’s LPR admission or adjustment may accompany or follow to join the principal as a derivative if born of a marriage that existed at the time of the principal’s admission or adjustment to LPR status. [45] For purposes of this rule, such a child is considered to have been acquired prior to the principal’s obtaining LPR status and is entitled to the principal’s priority date. [46] 

An adopted child who was not able to accompany the principal because the two-year legal custody and joint residence requirements had not yet been met when the principal immigrated may become eligible to follow to join the principal. This may apply in cases where the child still qualifies as a “child” once the legal custody and joint residence requirements are met. Residing with either adoptive parent will meet the joint residence requirement with respect to each adoptive parent. [47] 

Derivative Spouse and Child

Other than exceptions for U nonimmigrants, asylee derivatives, and refugee derivatives adjusting status, USCIS cannot approve the Form I-485 for a derivative applicant until the principal applicant has been granted lawful permanent resident status. [48] 

In addition, there are a few special categories where certain additional family members qualify as derivative applicants and may adjust status. These include:

  • Adjustment applicants in T or U nonimmigrant status; 

  • ​Applicants under Section 13 or the Act of September 11, 1957 (Public Law 85-316); and

  • ​Those applying as dependents under HRIFA. 

More information is provided in the program-specific parts of this volume.

7. Cross-Chargeability

In certain situations, an applicant may benefit from the charging of their visa to their spouse’s or parent’s country of birth rather than their own. This is known as cross-chargeability. 

In practice, cross-chargeability is used where the preference quota category is backlogged for one spouse’s country of chargeability but is current for the other spouse’s country of chargeability. The principal applicant may cross-charge to the derivative spouse’s country, and the derivative spouse may cross-charge to the principal’s country. [49] 

Derivative children may cross-charge to either parent’s country as necessary. [50] Parents may not cross-charge to a child’s country. In other words, the principal applicant or derivative spouse may never use their child’s country of birth for cross-chargeability.

Whenever possible, cross-chargeability should be applied to preserve family unity and allow family members to immigrate together. [51] 

Eligibility

In order to benefit from cross-chargeability, both applicants must be eligible to adjust status. A derivative using the principal’s country of chargeability may adjust status with the principal or at any time thereafter. When a principal uses the derivative spouse’s country of chargeability, both applicants are considered principal applicants: one for the purpose of conferring immigrant status and the other for the purpose of conferring a more favorable chargeability. [52] As such, the officer should approve both adjustment applications at the same time.

The following situations are examples of when applicants are eligible for cross-chargeability:

Examples of Eligibility for Cross-Chargeability

If a Visa is …

And a Visa is …

Then Charge the …

Available for principal applicant

Not available for derivative spouse

Derivative spouse’s visa to the principal applicant’s country of chargeability

Not available for principal applicant

Available for derivative spouse

Principal applicant’s visa to the derivative spouse’s country of chargeability

Available for principal applicant and derivative spouse

Not available for derivative child

Derivative child’s visa to either parent’s more favorable country of chargeability

Processing Requests for Cross-Chargeability

If a principal applicant is filing along with a derivative spouse or child and a visa appears unavailable at first glance, the officer should check the A-files for possible cross-chargeability eligibility. Often, an applicant will affirmatively request use of cross-chargeability when filing the application. In all cases where cross-chargeability provisions apply, the files should be forwarded to the adjudicating officer with a notation that indicates possible cross-chargeability. The files should be kept together in a family pack. 

 

D. Determine Admissibility

Immigration laws specify acts, conditions, and conduct that can make aliens ineligible for adjustment of status. These acts, conditions, and conduct are outlined in INA 212 and are called “grounds of inadmissibility.”

Admissibility requirements may vary based on the adjustment of status category sought. If the officer determines that the applicant is not inadmissible under any applicable grounds, then the officer may move on to other aspects of the adjudication. If the officer determines the applicant is inadmissible, the applicant may need a waiver or other form of relief to address the inadmissibility. The officer must confirm that the applicant is admissible to the United States or that any inadmissibilities are waived before making a final determination on an adjustment application. [53] 

1. Report of Medical Examination and Vaccination Record (Form I-693)

Adjustment applicants who must show they are not inadmissible on health-related grounds are typically required to undergo an immigration medical examination performed by a USCIS-designated civil surgeon in the United States. [54] The civil surgeon records the results of the medical exam on the Report of Medical Examination and Vaccination Record (Form I-693), which is then reviewed by the officer upon adjudication of the adjustment application. Some adjustment applicants may have already undergone a medical exam overseas. In this case, the adjustment applicant may not need to repeat the medical exam in the United States or may only need to undergo the vaccination assessment. 

If Form I-693 is required, the officer should carefully review the form to ensure it is properly completed and that the results of the immigration medical examination documented on the form are still valid for adjustment purposes. [54] 

If Form I-693 is properly completed and the medical results still valid, the officer should review the form to assess whether the applicant is inadmissible based on any health-related ground. [56] 

2. Affidavit of Support Under Section 213A of the Act (Form I-864) [57]

Most immediate relative and family-based immigrants, and some employment-based immigrants, are inadmissible as likely to become a public charge unless they submit an Affidavit of Support (Form I-864) with their adjustment application. The instructions for Form I-864 provide detailed information about who is required to submit an Affidavit of Support. 

The officer must review the Affidavit of Support documentation to ensure the applicant and his or her sponsor meets the Affidavit of Support requirements, including that: 

  • The sponsor(s) signed the Affidavit of Support;​

  • The sponsor’s income meets or exceeds 125% of the Federal Poverty Guidelines; [58] 

  • The sponsor submitted his or her most recent year’s tax returns (Note: Older years are not acceptable in lieu of the most recent year’s tax return. If a copy of a tax return is submitted, then copies of W-2s or 1099s must also be submitted. If an IRS transcript is submitted, then W-2s or 1099s are not needed.);

  • There is an affidavit of support from both sponsors, if there is a joint sponsor;

  • Sponsor and joint sponsor provided proof of citizenship or permanent resident status; and

  • Sponsor and joint sponsor must be domiciled in the United States or a U.S. territory or possession.

In addition, if a sponsor is using assets to meet the requirements, the assets must total:

  • For a spouse: Three times the difference in the sponsor’s income and the 125% needed according to the poverty guidelines.

  • For any other relative: Five times the difference in the sponsor’s income and the 125% needed according to the poverty guidelines.

An applicant is exempt from the Affidavit of Support requirement and need not submit Form I-864 if:

  • The applicant has earned or can be credited with 40 qualifying quarters (credits) of work in the United States under the Social Security Act (Note: For this purpose: A spouse can be credited with quarters of coverage earned by the other spouse during the marriage. A child can be credited with any quarters of coverage earned by each parent before the child’s 18th birthday.);

  • The applicant is an intending immigrant child who will become a U.S. citizen immediately upon entry under the Child Citizenship Act of 2000 (CCA); [59] 

  • The applicant is the widow(er) of a U.S. citizen; or

  • The applicant is a Violence Against Women Act (VAWA) self-petitioner or derivative child.

If any of these situations apply, the applicant should submit an Intending Immigrant’s Affidavit of Support Exemption (Form I-864W) instead of the Form I-864 with his or her adjustment application. 

Other applicants are also exempt from filing an Affidavit of Support if they filed a Form I-485 prior to December 19, 1997 [60] or if they qualify:

  • Diversity Visa immigrants; [61] 

  • Special immigrant juveniles; [62] 

  • Refugees and asylees at time of adjustment of status; [63] 

  • Employment-based immigrants (other than those for whom a relative either filed an Immigrant Petition for Alien Worker (Form I-140) or owns 5% or more of the firm that filed the Form I-140); [64] 

  • Aliens granted T nonimmigrant status (human trafficking victims); 

  • Aliens granted U nonimmigrant status (crime victim); [65] and

  • Certain qualified aliens as described under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). [66] 

Applicants in these categories need not file either Form I-864 or Form I-864W

If the officer determines that required documentation is missing or that the petitioner fails to meet sponsorship requirements, the officer should issue an RFE requesting the missing evidence, including the need for the applicant to obtain a joint sponsor or to submit Form I-864W as appropriate.

E. Security Checks and National Security Concerns

USCIS conducts background checks on all applicants for adjustment of status to enhance national security and protect the integrity of the immigration process by ensuring that USCIS grants lawful permanent resident status only to those applicants eligible for the requested benefit. The officer must ensure that all security checks are completed, unexpired, and resolved as necessary prior to adjudicating an adjustment application. 

A national security concern exists when a person or organization has been determined to have a link to past, current, or planned involvement in an activity or organization involved in terrorism, espionage, sabotage, or the illegal transfer of goods, technology, or sensitive information, among others. [67] 

An officer must consider activities, aliens, and organizations described in statute, to determine if a national security concern exists. [68] These include but are not limited to:

  • Espionage activity; [69] 

  • Illegal transfer of goods, technology, or sensitive information; [70] 

  • Activity intended to oppose, control, or overthrow the U.S. Government by force, violence, or other unlawful means; [71] 

  • Terrorist activity; [72] and

  • Association with terrorist organizations. [73] 

The officer should consider the totality of the circumstances to determine whether an articulable link exists between the alien (or organization) and prior, current, or planned involvement in, or association with an activity, any alien (or organization) described in any of these sections. 

Applications with national security concerns require specific handling in accordance with USCIS policy and procedures.

Footnotes


1. [^] The approval of a visa petition provides no rights to the beneficiary of the petition, as approval of a visa petition is a preliminary step in the adjustment of status process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa and adjustment of his or her status. See Matter of Ho (PDF), 19 I&N Dec. 582 (BIA 1988). 

2. [^] See INA 212(a)(3)(A), INA 212(a)(3)(B), or INA 212(a)(3)(F). See INA 237(a)(4)(A) or INA 237(a)(4)(B)

3. [^] See INA 245(a). See 8 CFR 245.1(a). See 8 CFR 103.2(b)(1)8 CFR 103.2(b)(2), and 8 CFR 103.2(b)(12).

4. [^] See INA 245(c)(2)

5. [^] See INA 204(l) for exceptions due to death of the petitioner or principal beneficiary.

6. [^] See Pub. L. 107-208 (PDF) (August 6, 2002). See Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].

7. [^] See INA 101(b)(1)

8. [^] For more information, see Section C, Verify Visa Availability, Subsection 6, Derivatives [7 USCIS-PM A.6(C)(6)]. 

9. [^] See INA 203(d) and Matter of Naulu (PDF), 19 I&N Dec. 351 (BIA 1986).

10. [^] See 22 CFR 40.1(a)(2). See INA 245(m) and 8 CFR 245.24. See Part L, Refugee Adjustment [7 USCIS-PM L] and Part M, Asylee Adjustment [7 USCIS-PM M] for more information on the exception for asylee and refugee derivatives adjusting status. 

11. [^] See INA 204(j). 

12. [^] See INA 201(b)(2)(A)(i)

13. [^] See INA 201(b) for a complete listing. 

14. [^] See INA 209

15. [^] Although a visa is immediately available to T nonimmigrant-based adjustment applicants at the time of filing, there is an annual cap on the number of adjustments allowed each year. Up to 5,000 T nonimmigrants are allowed to adjust status each year. This does not include immediate family members. See INA 245(l)

16. [^] See INA 210 and 245A.

17. [^] Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (PDF) (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386 (PDF), 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162 (PDF), 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554 (PDF), 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167 (PDF), 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316 (PDF), as amended, 8 CFR 245.3INA 101(a)(15)(A)(i)-(ii) and INA 101(a)(15)(G)(i)-(ii). Although a visa is immediately available to Section 13-based adjustment applicants at the time of filing, there is an annual cap on the number of adjustments allowed each year. Only 50 visas per year, including both principal applicants and their immediate family members, are allotted each year. 

18. [^] See INA 201(c) and INA 201(d)

19. [^] See INA 202(a)(2)

20. [^] For exceptions to this general rule, see 22 CFR 42.12.

21. [^] For more information, see the USCIS website.

22. [^] Form I-797 is contained in the A-file.

23. [^] Immigrant Petition for Alien Worker (Form I-140); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); or Immigrant Petition by Alien Investor (Form I-526).

24. [^] See the Department of Labor’s website to access this form. The previous version of this form was ETA Form 750.

25. [^] See 8 CFR 204.5(d). 

26. [^] See INA 204(k). See 8 CFR 204.2(a)(4) and 8 CFR 204.2(i).

27. [^] See 8 CFR 204.2(h).

28. [^] See 8 CFR 204.5(e).

29. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(d)).

30. [^] For employment-based 5th preference cases, only fraud committed by the petitioner will prevent the petitioner relying on an earlier priority date. See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(d)).

31. [^] See INA 203(g). See 8 CFR 205.1(a)(1).

32. [^] See 8 CFR 204.5(e)(2).

33. [^] See 84 FR 35750, 35808 (PDF) (July 24, 2019) (to be codified at 8 CFR 204.6(d)).

34. [^] See INA 245(a)(3) and 8 CFR 245.2(a)(2)(i)(A). See 8 CFR 103.2(b)(1). For more information on determining whether a visa was available at time of filing, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)].

35. [^] USCIS also provides information about the current Visa Bulletin on the USCIS website.

36. [^] See 8 CFR 245.1(g)(1).

37. [^] See INA 203(d).

38. [^] See 22 CFR 40.1(a)(1).

39. [^] See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries. The distinction between “accompany” and “follow to join” is relevant for certain visa classifications that may allow for one but not the other. For instance, derivatives of certain special immigrants under INA 101(a)(27)(D)-(H) may accompany but not follow to join the principal applicant.

40. [^] See 22 CFR 42.53(c). See 9 FAM 503.3-2(D), Priority Date for Derivative Spouse/Child.

41. [^] See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries. 

42. [^] See INA 201(b).

43. [^] See 9 FAM 503.3-2(D), Priority Date for Derivative Spouse/Child. See Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].

44. [^] For instance, the principal beneficiary did not lose LPR status or did not naturalize, thereby removing the principal’s ability to confer LPR status to the derivative. See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

45. [^] See 22 CFR 42.53(c).

46. [^] See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

47. [^] See Matter of Y- K- W- (PDF), 9 I&N Dec. 176 (A.G. 1961).

48. [^] See 22 CFR 40.1(a)(2). See INA 245(m) and 8 CFR 245.24. See Part L, Refugee Adjustment [7 USCIS-PM L] and Part M, Asylee Adjustment [7 USCIS-PM M] for more information on the exception for asylee and refugee derivatives adjusting status.

49. [^] See INA 202(b)(2).

50. [^] See INA 202(b)(1).

51. [^] See 9 FAM 503.2-4(A), Derivative Chargeability. 

52. [^] See 9 FAM 503.2-4(A), Derivative Chargeability.

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

54. [^] For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3].

55. [^] For detailed information on reviewing Form I-693, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Documentation, Section C, Documentation Completed by Civil Surgeon [8 USCIS-PM B.4(C)]. 

56. [^ ] For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

57. [^] See 8 CFR 213a.

58. [^] If the sponsor is on active duty with the U.S. armed forces and is petitioning for a spouse or child, only 100% of the Federal Poverty Guidelines must be met. See Poverty Guidelines (Form I-864P).

59. [^] See INA 320

60. [^] See 8 CFR 213a.2(a)(2)(i) and 8 CFR 213a.2(a)(2)(ii)(B). See Illegal Immigration Reform and Immigrant Responsibility Act, Division C of Pub. L. 104-208 (PDF) (September 30, 1996).

61. [^] A winner of the Diversity Visa Program lottery has no petition or petitioner. Consequently, a Diversity Visa Program adjustment applicant does not need to file an Affidavit of Support. However, the applicant is still subject to the public charge ground of inadmissibility. 

62. [^] See INA 245(h).

63. [^] See INA 209(c).

64. [^] See INA 212(a)(4)

65. [^] See INA 101(a)(15)(U) and INA 212(a)(4)(E)(ii). See Section 804 of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (PDF), 127 Stat. 54, 111 (March 7, 2013). 

66. [^] See INA 212(a)(4)(E)(iii). See Section 804 of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (PDF), 127 Stat. 54, 111 (March 7, 2013). See Section 431(b) of PRWORA, Pub. L. 104-193 (PDF), 110 Stat. 2105, 2274 (August 22, 1996) as amended by Title V, Subtitle A, Section 501 of the Omnibus Consolidated Appropriates Act of 1997, Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-670 (September 30, 1996) and codified at 8 U.S.C. 1641.

67. [^] See INA 212(a)(3)(A)INA 212(a)(3)(B), and INA 212(a)(3)(F). See INA 237(a)(4)(A) or INA 237(a)(4)(B)

68. [^] See INA 212(a)(3)(A)INA 212(a)(3)(B), and INA 212(a)(3)(F). See INA 237(a)(4)(A) and INA 237(A)(4)(B).

69. [^] See INA 212(a)(3)(A)(i)(I) and INA 237(a)(4)(A).

70. [^] See INA 212(a)(3)(A)(i)(II) and INA 237(a)(4)(A).

71. [^] See INA 212(a)(3)(A)(iii) and INA 237(a)(4)(A).

72. [^] See INA 212(a)(3)(B) and INA 237(a)(4)(B).

73. [^] See INA 212(a)(3)(F) and INA 237(a)(4)(B).

Chapter 7 - Child Status Protection Act

A. Purpose of the Child Status Protection Act

The core purpose of the Child Status Protection Act (CSPA) [1] was to alleviate the hardships faced by certain aliens who were previously classified as children for immigrant visa purposes, but who, due to the time required to adjudicate petitions, had turned 21 years old and consequently became ineligible to receive such immigrant visas. [2] 

Section 101(b)(1) of the Immigration and Nationality Act (INA) defines a child as a person who is unmarried and under 21 years old. [3] CSPA does not alter this definition. Instead, CSPA provides methods for calculating an alien’s age for immigrant visa purposes. The resulting age is known as the alien’s “CSPA age.” 

CSPA does not change the requirement that the alien must be unmarried in order to remain eligible for classification asa child for immigration purposes.

B. Child Status Protection Act Applicability

Aliens Covered by Child Status Protection Act

CSPA applies only to those aliens specified in the statute: 

  • Immediate relatives (IRs);

  • Family-sponsored preference principals and derivatives; 

  • Violence Against Women Act (VAWA) self-petitioners and derivatives; [4] 

  • Employment-based preference derivatives; [5] 

  • Diversity immigrant visa (DV) derivatives;

  • Derivative refugees; [6] and

  • Derivative asylees. 

CSPA provisions vary based on the immigrant category of the applicant. Certain provisions of the CSPA apply to some categories of immigrants but not others. Such provisions and details regarding eligibility are described in the following subsections. [7] CSPA only covers those immigrants explicitly listed in the statute; it does not apply to any other immigrants or nonimmigrants. 

CSPA applies to both aliens abroad who are applying for an immigrant visa through the Department of State (DOS) and aliens physically present in the United States who are applying for adjustment of status through USCIS. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to aliens seeking an immigrant visa through DOS. [8] 

Effective Date 

CSPA went into effect on August 6, 2002. Adjustment applicants are eligible for CSPA consideration if either the qualifying application (Application to Register Permanent Residence or Adjust Status (Form I-485)) or one of the following underlying forms was filed or pending on or after the effective date:

  • Petition for Alien Relative (Form I-130); 

  • Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); 

  • Immigrant Petition for Alien Worker (Form I-140);

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

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

  • Refugee/Asylee Relative Petition (Form I-730). [9] 

CSPA does not apply to adjustment applications that were subject to a final determination prior to the effective date. However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. [10] 

Certain Preference Applicants with No Adjustment Application Pending on the Effective Date

CSPA may also still apply to a preference applicant whose immigrant petition was approved prior to August 6, 2002, and who did not have an adjustment application pending on August 6, 2002, but who subsequently applied for adjustment and was denied solely for aging out. The applicant may file an untimely motion to reopen or reconsider without a filing fee if:

  • The applicant would have been considered under the age of 21 under applicable CSPA rules;

  • The applicant applied for adjustment of status within 1 year of visa availability; and

  • USCIS denied the adjustment application solely because the applicant had aged out.

Impact of USA Patriot Act

Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. Under Section 424 of the USA PATRIOT Act, if a qualifying form was filed before September 11, 2001, then the applicant is afforded an additional 45 days of eligibility. [11] 

C. Immediate Relatives

1. Applicability

In order to qualify for CSPA:

  • The adjustment applicant must have had a qualifying Petition for Alien Relative (Form I-130), Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), or adjustment application pending on or after the CSPA effective date;

  • The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-130 or Form I-360 was filed; and

  • The applicant must remain unmarried.

2. Determining Child Status Protection Act Age

For IRs and IR self-petitioners or derivatives under VAWA, a child’s age is frozen as of the date the Form I-130 or Form I-360 is filed.If the adjustment applicant was under the age of 21 at the time the petition was filed, the applicant is eligible for CSPA and will not age out. 

D. Derivative Asylees

CSPA allows children who turn 21 years old after an asylum application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative asylum status and adjustment of status. 

1. Applicability

In order to qualify for CSPA:

  • The adjustment applicant must have had a qualifying Refugee/Asylee Relative Petition (Form I-730), principal applicant’s Application for Asylum and for Withholding of Removal (Form I-589), or adjustment application pending on or after the CSPA effective date;

  • The applicant must have been under the age of 21 and unmarried at the time the principal asylum applicant’s Form I-589 was filed; and 

  • The applicant must be unmarried at the time he or she seeks adjustment of status.

2. Determining Child Status Protection Act Age

For derivative asylees, an adjustment applicant’s CSPA age is his or her age on the date the principal applicant’s Form I-589 is filed. In other words, the applicant’s age is frozen on the date the Form I-589 is filed. If the applicant was under the age of 21 at the time of filing, the applicant is eligible for CSPA and will not age out.

Generally, in order to establish eligibility, a derivative asylee must have been listed on the principal applicant’s Form I-589 prior to a final decision on the principal’s asylum application. However, the derivative asylee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the child’s age, and a reasonable explanation as to why the derivative was not included on the principal’s Form I-589. [12] 

E. Derivative Refugees

CSPA allows children who turn 21 years old after a refugee application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative refugee status. For purposes of adjustment of status of a derivative refugee, CSPA protection is not needed because a derivative refugee does not need to remain the child of the principal refugee in order to adjust status under INA 209. [13] 

1. Applicability

In order to qualify for CSPA:

  • The applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (Form I-730) pending on or after the CSPA effective date; and 

  • The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. [14] 

While the child must have been unmarried in order to qualify for refugee derivative status, he or she does not need to remain unmarried in order to adjust status under INA 209. [15] 

2. Determining Child Status Protection Act Age

For derivative refugees, an adjustment applicant’s CSPA age is his or her age on the date the principal applicant’s Form I-590 is filed. The date a Form I-590 is considered filed is the date of the principal refugee parent‘s interview with a USCIS officer. Theapplicant’s age is frozen on the date of the refugee parent’s interview. So long as the child was under 21 on the date of the interview, he or she will not age out of eligibility for derivative refugee status or adjustment of status.

Generally, in order to qualify, the derivative refugee must be listed as a child on the principal applicant’s Form I-590 prior to a finaldecision. However, the derivative refugee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the child’s age, and a reasonable explanation as to why the derivative was not included on the principal’s Form I-590. [16] 

F. Family and Employment-Based Preference and Diversity Immigrants

1. Applicability

CSPA applies differently to family and employment-based preference and DV adjustment applicants than it does to refugee, asylee, and IR applicants. Instead of freezing the age of the applicant on the filing date, CSPA provides a formula by which the applicant’s CSPA age is calculated that takes into account the amount of time the qualifying petition was pending. Furthermore, the applicant’s eligibility depends not only on the CSPA age calculation but also on whether the applicant sought to acquire lawful permanent residence within 1 year of visa availability. [17] 

In order for a family or employment-based preference or DV applicant to qualify for CSPA, he or she must meet the following requirements:

  • The applicant must have had a qualifying petition [18] or adjustment application pending on or after the CSPA effective date; 

  • The applicant’s calculated CSPA age must be under 21 years old; 

  • The applicant must remain unmarried; and

  • The applicant must have sought to acquire lawful permanent residence within 1 year of visa availability, absent extraordinary circumstances. [19] 

2. Child Status Protection Act Age Calculation

For family (including VAWA) [20] and employment-based preference and DV categories, an adjustment applicant’s CSPA age is calculated by subtracting the number of days the petition was pending (pending time) from the applicant’s age on the date theimmigrant visa becomes available to him or her (age at time of visa availability). [21] The formula for calculating CSPA age is as follows:

Age at time of visa availability - Pending Time = CSPA Age

While an applicant must file an adjustment application or otherwise seek lawful permanent resident status in order to benefit from CSPA, the date the applicant files an adjustment application is not relevant for the CSPA age calculation. [22] 

Example

The applicant is 21 years and 4 months old when an immigrant visa becomes available to him or her. The applicant’s petition was pending for 6 months. The applicant’s CSPA age is calculated as follows:

21 years and 4 months - 6 months = 20 years and 10 months

Therefore, the applicant’s CSPA age is under 21.

3. Determining Length of Time Petition Was Pending

For family and employment-based preference adjustment applicants, the length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) [23] and the approval date. The formula for determining the length of time the petition was pending is as follows:

Approval Date - Filing Date = Pending Time

Example

The applicant’s mother filed a petition on the applicant’s behalf on February 1, 2016. USCIS approved the petition on August 1, 2016.

August 1, 2016 - February 1, 2016 = 6 months (or 182 days)

Therefore, the applicant’s petition pending time is 6 months (or 182 days).

Pending time includes administrative review, such as motions and appeals, but does not include consular returns. 

For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. [24] In other words, the pending time is the period of time between the start of the DV Program registration period to the date of the DV Selection Letter.

Example 

The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. 

May 1, 2013 - October 1, 2012 = 7 months

Therefore, the applicant’s pending time is 7 months.

4. Determining Age at Time of Visa Availability

In order to calculate an adjustment applicant’s CSPA age according to the formula above, the officer must first determine the age at time of visa availability.

In order for the immigrant visa to be considered available, two conditions must be met:

  • The petition must be approved; and

  • The visa must be available for the immigrant preference category and priority date. 

Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates:

  • The date of petition approval; or​

  • The first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date in the Final Action Dates chart. [25] 

For DVs, the date a visa is considered available is the first day on which the principal applicant’s rank number is current for visa processing. [26] 

Determining When an Applicant May File an Adjustment Application

Adjustment applicants can determine when to file their applications by referring first to the USCIS website and then to the DOS Visa Bulletin. [27] 

In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. [28] DOS publishes a new Visa Bulletin on a monthly basis. Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category: 

  • Dates for Filing chart; and 

  • Final Action Dates chart.

USCIS designates one of the two charts for use by applicants each month. [29] Applicants must check the USCIS website to see which chart to use in determining when they may file adjustment applications. Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used. The DOS Visa Bulletin website contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.

Visa Bulletin Final Action Dates Chart used for Child Status Protection Act Age Determination

While an adjustment applicant may choose to file an adjustment application based on the Dates for Filing chart, USCIS uses the Final Action Dates chart to determine the applicant’s age at the time of visa availability for CSPA age calculation purposes. Age at time of visa availability is the applicant’s age on the first day of the month of the DOS Visa Bulletin that indicates availability according to the Final Action Dates chart. 

An applicant who chooses to file an adjustment application based on the Dates for Filing chart may ultimately be ineligible for CSPA if his or her calculated CSPA age is 21 or older at the time his or her visa becomes available according to the Final Action Dates chart. [30] 

5. Impact of Visa Retrogression on Child Status Protection Act Age Determination

The impact of visa retrogression depends on: 

  • Whether the adjustment applicant filed the application before or after the retrogression, and ​

  • Whether the applicant filed the application based on the Dates for Filing or the Final Action Dates chart.

Retrogression After Applicant Filed Adjustment Application 

If an eligible adjustment applicant filed an adjustment application but the visa availability date subsequently retrogresses, USCIS holds the application until the visa becomes available again and the application can be adjudicated.

If the applicant filed an adjustment application based on the Final Action Dates chart, and his or her CSPA age at the time of filing the application was under 21, then the applicant’s CSPA age is locked in through final adjudication of the application. [31] However, if the applicant filed based on the Dates for Filing chart, the applicant’s age is not immediately locked in at the time of filing. Rather, the applicant’s CSPA age is calculated and locked in when his or her visa becomes available according to the Final Action Dates chart. 

Example 1: Application Filed Based on Dates for Filing Chart

The applicant files an adjustment application in March based on the Dates for Filing chart. However, it is not until May 1 that the Final Action Dates chart indicates availability for the applicant’s immigrant preference category and priority date (based on the Final Action Dates chart). In July, the visa retrogresses. 

In this case, USCIS calculates the applicant’s CSPA age using May 1 as the visa availability date. If the applicant’s calculated CSPA age was under 21, his or her CSPA age is locked in through final adjudication and USCIS holds the application until the visa becomes available again (based on the Final Action Dates chart). 

Example 2: Application Filed Based on Final Action Dates Chart

In May, the Final Action Dates chart indicates availability for the applicant’s immigrant preference category and priority date. The applicant files an adjustment application in June, and then the visa retrogresses in July (based on the Final Action Dates chart). In this case, USCIS calculates the applicant’s CSPA age using May 1 as the visa availability date (based on the Final Action Dates chart). If the applicant’s calculated CSPA age was under 21, his or her CSPA age is locked in through final adjudication and USCIS holds the application until the visa becomes available again. 

For both examples, if the applicant’s calculated CSPA age was 21 or older using the May 1 visa availability date, the applicant has already aged out and will not be eligible when the visa becomes available again. In these cases, USCIS denies the application.

Retrogression Before Applicant Files Adjustment Application 

If a visa initially becomes available (based on the Final Action Dates chart) and then retrogresses before the adjustment applicant has filed an adjustment application, the applicant’s age is not locked in. When the visa becomes available again (based on the Final Action Dates chart), the applicant’s age is calculated based on the new visa availability date. If the applicant’s CSPA age is over 21 at the time of subsequent visa availability, he or she is no longer eligible for CSPA. Therefore, it is always in the applicant’s best interest to apply for adjustment of status as soon as possible when a visa first becomes available according to the Final Action Dates chart, so as to lock in his or her CSPA age. 

Example 3: Retrogression Before Filing

In May, the Final Action Dates chart indicates availability for the applicant’s immigrant preference category and priority date. In July, the visa retrogresses before the applicant has filed an adjustment application. Because the applicant has not yet filed an adjustment application, his or her age is not locked in and will be calculated based upon the next visa availability date.

G. Sought to Acquire Requirement

In order for family and employment-based preference and DV adjustment applicants to benefit from CSPA, they must seek to acquire lawful permanent residence status within 1 year of visa availability. [32] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs. [33] 

1. Satisfying the Sought to Acquire Requirement

An adjustment applicant may satisfy the sought to acquire requirement by:

  • Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485); [34] 

  • Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the Department of State; [35] or

  • Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf. [36] 

Actions an applicant might take prior to filing an adjustment application, such as contacting an attorney or organization about initiating the process for obtaining a visa that has become available or applying for permanent residence, are not equivalent to filing an application and do not fulfill the sought to acquire requirement. However, USCIS may excuse the applicant from the requirement as an exercise of discretion if the applicant is able to establish that the failure to satisfy the sought to acquire requirement within 1 year was the result of “extraordinary circumstances.” [37] 

From the date of visa availability, the applicant has 1 year to fulfill the sought to acquire requirement. If the applicant does not seek to acquire within 1 year of visa availability, he or she cannot benefit from the age-out protections of the CSPA. Officers should review the comprehensive list of final action dates broken out by year on the DOS Visa Bulletin website to determine whether the applicant had a prior 1-year period of visa availability. Officers may use the comprehensive list to track movement of dates over time but should confirm consequential dates in the relevant monthly bulletin.

2. Visa Availability and the Sought to Acquire 1-Year Period

The date of visa availability is the date of petition approval or the first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date according to the Final Action Dates chart, whichever is later.[38] From the date of visa availability, family and employment-based preference and DV adjustment applicants have 1 year in which to seek to acquire permanent resident status in order to qualify for CSPA coverage. [39] 

While the Final Action Dates chart determines the date of visa availability for CSPA purposes and starts the 1-year clock, an applicant may choose to file an adjustment application based on the Dates for Filing chart. In this case, the applicant will have filed prior to the date of visa availability according to the Final Action Dates chart. If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. [40] Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.

Impact of Visa Retrogression on the 1-Year Sought to Acquire Clock

When visa availability retrogresses before a continuous 1-year period has elapsed, the 1-year clock “resets” upon any subsequent visa availability. If the visa retrogresses before the applicant has had 1 full year in which to seek to acquire, the 1-year clock starts again when the visa once again becomes available. The adjustment applicant then has 1 full year from the subsequent date of visa availability to seek to acquire. 

If a continuous 1-year period of visa availability elapsed and the applicant did not seek to acquire during the 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. Any retrogression and subsequent visa availability does not reset the clock because the applicant has already had a continuous 1-year period of time in which to seek to acquire.

For purposes of CSPA, only retrogression in the Final Action Dates chart is relevant. The 1-year clock begins when a visa becomes available according to the Final Action Dates chart. If the Final Action Dates chart retrogresses before 1 year elapses, the clock resets when a visa becomes available again according to the same chart. Any retrogression in the Dates for Filing chart is not considered retrogression for CSPA purposes and does not reset the 1-year clock.

Example 1

A visa initially becomes available to the applicant according to the Final Action Dates chart on March 1, 2016. Four months later on July 1, 2016, visa availability according to the Final Action Dates chart retrogresses. The visa subsequently becomes available again the following year on May 1, 2017. Since the applicant only had 4 months of time in which to seek to acquire during the initial period of availability, the 1-year clock resets on May 1, 2017, giving the applicant a fresh 1- year period in which to seek to acquire.

Example 2

A visa initially becomes available to the applicant according to the Final Action Dates chart on March 1, 2016. Twelve and a half months later, on March 15, 2017, visa availability according to the Final Action Dates chart retrogresses. Just a few short months later, on June 1, 2017, the visa becomes available again according to the Final Action Dates chart. Under these facts, the 1-year period does not reset for the applicant in this case. It does not matter that a visa became available again on June 1 because the applicant has already had the opportunity to seek to acquire for a continuous 1-year period. The applicant cannot benefit from the age-out protections of the CSPA.

3. Extraordinary Circumstances

Adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances. [41]

In order to establish extraordinary circumstances, the applicant must demonstrate that:

  • The circumstances were not created by the applicant through his or her own action or inaction;

  • The circumstances directly affected the applicant’s failure to seek to acquire within the 1-year period; and

  • The delay was reasonable under the circumstances.

Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to:

  • Serious illness or mental or physical disability of the applicant during the 1-year period;

  • Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period;

  • Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter;

  • Death or serious illness or incapacity of the applicant’s attorney or legal representative or a member of the applicant’s immediate family; and

  • Ineffective assistance of counsel, when certain requirements are met.

An applicant may only establish extraordinary circumstances due to ineffective assistance of counsel (the applicant’s legal representative or attorney) if he or she completes the following:

  • The applicant must submit an affidavit explaining in detail the agreement that was entered into with counsel regarding the actions to be taken and what information, if any, counsel provided to the applicant regarding such actions;

  • The applicant must demonstrate that he or she has made a good faith effort to inform counsel whose integrity or competence is being questioned of the allegations brought against him or her and that counsel has been given an opportunity to respond; and

  • The applicant must indicate whether a complaint has been filed with the appropriate disciplinary authorities about any violations of counsel’s legal or ethical responsibilities, or explain why a complaint has not been filed.

When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicant’s control. 

Commonplace circumstances, such as financial difficulty, minor medical conditions, and circumstances within the applicant’s control (such as when to seek counsel or begin preparing the application package), are not considered extraordinary. Furthermore, the fact of being or having been a child is common to all applicants seeking protection under the CSPA and does not constitute extraordinary circumstances.

When an applicant seeks to acquire after the 1-year period of visa availability has elapsed and does not provide an explanation or evidence of extraordinary circumstances, the officer issues a notice of intent to deny (NOID) to give the applicant an opportunity to rebut the apparent ineligibility.

4. Remedies for Certain Adjustment Applicants Who Failed to Seek to Acquire

Motions to Reopen Following Matter of O. Vazquez

Denials that were based on the failure to seek to acquire and issued prior to the decision in Matter of O. Vazquez [42] were proper based on the law in effect at the time of the decision. However, USCIS considers untimely motions to reopen for denials issued after the Matter of O. Vazquez precedent (June 8, 2012), but only if the denial was based solely on the adjustment applicant’s failure to seek to acquire within 1 year. 

Applicants must file the Notice of Appeal or Motion (Form I-290B) with the proper fee and should present their claim that the finding in Matter of O. Vazquez constitutes changed circumstances justifying the reopening of the adjustment application. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section.

Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date

CSPA may still apply for a preference applicant who did not have an adjustment application pending on August 6, 2002, and who did not timely seek to acquire. A preference applicant whose visa became available on or after August 7, 2001 who did not seek to acquire within 1 year of such visa availability but who would have qualified for CSPA coverage had he or she applied, but for prior policy guidance concerning the CSPA effective date, may still apply for adjustment of status.

H. Summary of Child Status Protection Act Applicability

The following table outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the sought to acquire requirement applies, and references to legal authorities and additional guidance.

Summary of CSPA Applicability

Immigrant Category

CSPA Age Determination

Sought to Acquire Requirement

Legal Authorities and Additional Guidance

Derivative Refugees

CSPA age is frozen on the date the principal refugee parent’s Form I-590 is filed (the date of the parent’s interview)

Not Applicable

See INA 207(c)(2)(B) and INA 209(a)(1).

See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)].

Derivative Asylees 

CSPA age is frozen on the date the principal asylee parent’s Form I-589 is filed.

Not Applicable

 

See INA 208(b)(3)(B).

See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2(C)(2)].

Immediate Relatives (including VAWA) [43] 

CSPA age is frozen on the date the Form I-130 or Form I-360 is filed.

Not Applicable

See INA 201(f).

See AFM 21.2(e), The Child Status Protection Act of 2002.

Family-Sponsored Preference Principals and Derivatives (including VAWA) [44] 

CSPA age is calculated by subtracting the number of days the petition was pending from the applicant’s age on the date an immigrant visa becomes available to the applicant.

Applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available.

See INA 203(h).

See AFM 21.2(e), The Child Status Protection Act of 2002.

Employment-Based Preference Derivatives

CSPA age is calculated by subtracting the number of days the petition was pending from the applicant’s age on the date an immigrant visa becomes available to the applicant.

Applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available.

See INA 203(h).

 

Diversity Immigrant Visa Derivatives

CSPA age is calculated by subtracting the number of days the petition was pending from the applicant’s age on the date an immigrant visa becomes available to the applicant.

Applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available.

See INA 203(h).

Footnotes


1. [^] See Pub. L. 107-208 (PDF) (August 6, 2002). 

2. [^] The situation in which aliens can no longer be classified as children for immigrant visa purposes due to turning 21 is commonly referred to as “aging out.”

3. [^] See INA 101(b)(1).

4. [^] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. L. 106-386 (October 28, 2000). VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). Officers should follow guidance in Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 105 KB), issued August 17, 2004. 

5. [^] Eligible derivatives of special immigrants are covered by CSPA as their immigrant visas fall under the employment-based fourth preference visa category. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F].

6. [^] The CSPA protects a derivative refugee from aging out prior to his or her refugee admission, but such protection is not needed at the adjustment stage because a derivative refugee does not need to remain the spouse or child of the principal refugee in order to adjust status under INA 209. See INA 209(a)(1).

7. [^] See Section H, Summary of Child Status Protection Act Applicability [7 USCIS-PM A.7(H)] for a condensed guide to basic provisions for each category of CSPA-eligible immigrants.

8. [^] For information about the impact of CSPA on applicants for an immigrant visa, see 9 FAM 502.1-1(D), Child Status Protection Act. 

9. [^] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns.

10. [^] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007).

11. [^] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. 107-56 (PDF), 115 Stat. 272, 362 (October 26, 2001).

12. [^] See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse or Child of the Principal Asylee [7 USCIS-PM M.2(C)].

13. [^] See INA 209(a)(1).

14. [^] The date a Form I-590 is considered filed is the date of the principal refugee parent‘s interview with a USCIS officer.

15. [^] See INA 209(a)(1).

16. [^] See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)].

17. [^] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information.

18. [^] Qualifying underlying forms include Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); and Immigrant Petition for Alien Worker (Form I-140). For DVs, the qualifying petition is the DV Program electronic entry form. See 9 FAM 502.6-4, Diversity Visa Processing.

19. [^] See INA 203(h) and INA 204(k).

20. [^] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. L. 106-386 (October 28, 2000). VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). Officers should follow guidance in Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 105 KB), issued August 17, 2004. 

21. [^] For CSPA purposes, the age at time of visa availability is the applicant’s age when his or her visa is available according to the Final Action Dates chart in the DOS Visa Bulletin. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. VAWA derivatives who age out prior to adjusting status are considered self-petitioners for preference status and retain the priority date of their parents’ Form I-360 VAWA petition. See INA 204(a)(1)(D)(i)(III).

22. [^] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information.

23. [^] While the priority date is often the same as the filing date (also referred to as the receipt date), there are instances in which the priority date is not the same, such as in employment-based cases based on the filing of a labor certification. The priority date should not be used for purposes of determining CSPA eligibility. Instead, the filing date (receipt date) is the appropriate date.

24. [^] For DVs, the qualifying petition is the DV Program electronic entry form. See 9 FAM 502.6-4, Diversity Visa Processing.

25. [^] In addition to providing the individual monthly visa bulletins, the DOS Visa Bulletin website also provides a comprehensive list of final action dates broken out by year. Officers may use the comprehensive list to track movement of dates over time but should confirm consequential dates in the relevant monthly bulletin.

26. [^] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the Visa Bulletin.

27. [^] For more information, see Chapter 3, Filing Instructions, Section B, Definition of Properly File, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. DV applicants also use the DOS Visa Bulletin to determine visa availability.

28. [^] See USCIS.gov.

29. [^] USCIS typically designates one of the two charts within 1 week of the publication of the Visa Bulletin.

30. [^] Applicants in the F2A category who are ineligible for CSPA according to the Final Action Dates chart may continue to pursue their adjustment of status applications based on the petition automatically converting to the F2B or F1 category. See INA 203(h)(3).  

31. [^] In order to qualify under CSPA, the applicant must also remain unmarried through final adjudication and must seek to acquire within 1 year of availability. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)].

32. [^] See INA 203(h)(1)(A). Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. 

33. [^] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not.

34. [^] See Chapter 3, Filing Instructions, Section B, Definition of Properly File [7 USCIS-PM A.3(B)].

35. [^] Submitting a Form DS-260 that covers only the principal applicant does not meet the sought to acquire requirement for a derivative child. 

36. [^] Applicants may file the Form I-824 concurrently with the adjustment application. A previously filed Form I-824 that was denied because the principal applicant's adjustment application had not yet been approved may serve as evidence of having “sought to acquire.” See 9 FAM 502.1-1(D)(6), Sought to Acquire LPR Status Provision, for more information regarding how overseas applicants may satisfy the sought to acquire requirement in the consular processing context.

37. [^] For more information, see Subsection 3, Extraordinary Circumstances [7 USCIS-PM A.7(G)(3)].

38. [^] For DVs, the date a visa is considered available is the first day on which the principal applicant’s rank number is current for visa processing.

39. [^] Though the CSPA technically requires DV derivatives to seek to acquire within 1 year, this requirement does not generally affect DV derivatives, as they are only eligible to receive a visa through the end of the specific fiscal year in which the principal applicant was selected under INA 203(c). See INA 204(a)(1)(I).

40. [^] For more information, see Section F, Family and Employment-Based Preference and Diversity Immigrants, Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)].

41. [^] In Matter of O. Vazquez, the Board of Immigration Appeals (BIA) ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. See Matter of O. Vazquez (PDF), 25 I&N Dec.817 (BIA 2012).

42. [^] In Matter of O. Vazquez, the BIA ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012).

43. [^] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 105 KB), issued August 17, 2004. 

44. [^] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 105 KB), issued August 17, 2004. 

Chapter 8 - Transfer of Underlying Basis

An adjustment of status applicant whose application is based on a particular immigrant category occasionally prefers to have the pending application considered under another category. Examples include: 

  • An applicant who originally applied for adjustment based on a pending or approved employment-based petition and later married a U.S. citizen now prefers to adjust based on a family-based petition filed by the new U.S. citizen spouse. 

  • An applicant who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to adjust under an employment-based category in order to avoid the conditional residence requirements. [1]  

  • An applicant who applied for adjustment concurrently with a pending employment-based petition in one preference category and subsequently had another employment-based petition filed by a different (future) employer in a different preference category.

  • An applicant who applied for adjustment based on a pending or approved special immigrant petition and now wishes to adjust based on a subsequently filed family or employment-based petition.

  • An applicant who applied for adjustment based on an approved or pending immigrant petition, but is now a Diversity Visa Program lottery winner.

The decision to grant or deny a transfer request is always discretionary. There are several factors to consider when determining whether to grant a transfer request.

A. Eligibility Requirements

When considering a request to transfer the basis of an adjustment application, the officer should consider the following guidance.

1. Continuing Eligibility to Adjust Status

In order to transfer an adjustment application from one basis to another, there must be no break in the continuity of the applicant’s underlying eligibility to adjust prior to submitting the transfer request. If an applicant does not maintain eligibility up until the transfer is requested, a transfer cannot be granted. The date the transfer request is received is the controlling date for determining whether the eligibility continued, not the date the actual transfer request is reviewed or granted.

Example: Transfer Request Involving Break in Continuity of Underlying Eligibility

Date

Event

May 16, 2010

An applicant has a family-based petition approved based on marriage to a lawful permanent resident.

June 16, 2010

The applicant applies for adjustment of status based on the approved petition.

August 4, 2010

The applicant divorces his permanent resident spouse.

September 23, 2010

The applicant marries a U.S. citizen.

October 1, 2010

The applicant’s new spouse files a petition for the applicant based on the new marriage.

November 10, 2010

The applicant appears for an adjustment of status interview with a divorce decree from the first marriage, a marriage certificate from the current marriage, and receipt notice of the petition filed October 1, 2010. The applicant requests a transfer.

In this case, the applicant failed to maintain continuity of eligibility because the first petition approval was automatically revoked at the moment the first marriage was dissolved. Accordingly, the adjustment application cannot be transferred and the applicantmust file a new adjustment application for the new petition.

Adjustment Application Supported by Petition or Basis At All Times

The replacement petition must be properly filed and designated as the new basis for the pending adjustment application before the initial petition supporting the adjustment application is withdrawn, denied, or revoked. Additionally, if the new basis requires that the underlying petition first be approved prior to filing an adjustment application, a transfer request will be denied unless the replacement petition was approved prior to the request. [2] 

If the petition upon which the pending adjustment application was initially based has been revoked [3] before the applicant makes a proper request for a transfer, then the applicant cannot meet the continuing eligibility requirement. In some cases, revocation of a petition is automatic and takes effect as soon as a triggering event occurs. [4] 

In other cases, USCIS must follow a formal revocation process before the revocation takes effect. [5] Continuing eligibility ends upon revocation. If the new basis of eligibility is not sought (in other words, the transfer request has not been received and approved by USCIS) before the revocation takes effect, the adjustment application cannot be transferred.

Fraud

If the original adjustment application was based on a petition determined to have been filed fraudulently or with willful misrepresentation, the principal adjustment applicant or the beneficiary of that petition is considered to have never been eligible for adjustment of status and therefore cannot meet the continuing eligibility requirement. 

Likewise, anyone whose adjustment application is dependent upon that principal adjustment applicant’s eligibility is also ineligible. If a principal’s adjustment application is denied based on a determination of fraud, any accompanying derivative’s application must also be denied.

2. Continuing Pendency of the Adjustment Application

An adjustment application cannot be transferred from one basis to another if there are any breaks in the continuity of the application, including if the applicant chooses to withdraw the application or the application is denied because the applicant failed to appear for a scheduled interview without sufficient justification. 

A transfer cannot be granted once a final decision has been made on an adjustment application, whether granted, denied, or withdrawn, even if USCIS reopens or reconsiders the final decision.

3. Eligibility for Substituted Category

The applicant must provide evidence of eligibility for the new immigrant category in support of the request to transfer to a new eligibility basis. Evidence required can be found on the adjustment application’s filing instructions. The transfer request should be treated as if it were a new filing and the applicant should provide the necessary documentation to establish eligibility for the new adjustment category.

The burden of proof for establishing eligibility under the new immigrant category is on the applicant. An officer does not need to make a full eligibility determination or pre-adjudicate the adjustment application prior to making a decision on the request, even though establishing eligibility may positively impact the decision as to whether to grant the request.

Inadmissibility and INA 245(c) Bars to Adjustment

The officer should consider that an applicant seeking to transfer the basis of a pending adjustment application may become subject to inadmissibility grounds or adjustment bars under that new basis. This could arise when the applicant is transferring from a basis that is exempt from certain inadmissibility grounds or adjustment bars to a basis that is not exempt from the same inadmissibility grounds or bars to adjustment. As a matter of discretion, the officer may deny a transfer request in these circumstances.

Example: Transfer Subjecting Applicant to Inadmissibility Grounds or Adjustment Bars

Date

Event

May 18, 2011

An applicant applies for adjustment of status as the spouse of a U.S. citizen after recently getting married.

July 23, 2011

An employer petitions for the applicant.

September 3, 2011

The employer’s employment-based petition is approved.

October 21, 2011

The applicant requests a transfer to adjust status based on the employment-based petition instead of as the spouse of a U.S. citizen.

In this case, the applicant requested the transfer to avoid the conditional residence requirements. Because the applicant is no longer seeking to adjust as the spouse of a U.S. citizen (immediate relative), the applicant would no longer qualify for the special exemptions from adjustment bars applicable to immediate relatives. As a result, the applicant may become subject to any applicable bars, unless an INA 245(k) exemption applies. An officer may exercise discretion to deny the transfer request in such cases.

4. Visa Immediately Available

When an applicant requests a transfer of the adjustment application from one basis to another, the priority date must be current for the category the applicant wishes to use. In order to transfer an adjustment application to a new basis involving a preference classification, the applicant must be the beneficiary of a pending or approved visa petition which has a visa available. 

The date on which the transfer request is filed controls for purposes of determining whether an immigrant visa number is available, not the date on which the initial petition supporting the adjustment application was filed. For example, in order for an applicant who concurrently files an adjustment application with a preference petition filed by Employer A on March 3, 2013 to transfer the pending adjustment application to another preference petition on August 25, 2014, an immigrant visa number must be immediately available on August 25, 2014, under the new basis.

Priority Date

With limited exceptions, a priority date is not transferable from one petition to another. [6] 

In general, the priority date of the replacement petition attaches to the pending adjustment application. This is done regardless of whether the priority date is earlier or later than the priority date of the initial petition supporting the adjustment application, except where applicable regulations permit retention of priority dates (allowing for use of the earliest priority date) in certain employment-based 1st, 2nd, and 3rd preference cases. [7] 

Choosing Between Numerically Limited Category and Non-Numerically Limited Category

In general, an officer should adjust the applicant under the non-numerically limited category in order to leave a visa preference number available for other immigrants in cases where an applicant is eligible to adjust status under both a numerically limited category and a non-numerically limited category.

5. Exercise of Discretion

Whether to grant or deny a transfer request is a matter of discretion. Except for simple transfers between the first three employment-based categories, the adjustment applicant should not assume that transfer requests will be automatically granted. Other than the general eligibility requirements listed above, an officer may consider the effects of additional processing time required to gather evidence to support the applicant’s new claim. The officer may look more favorably on those requests that include submission of all required initial evidence that supports the new basis for adjustment. 

In addition, the officer may consider the following:

  • The reason(s) for the request;

  • The availability or unavailability of documentation to support the new claim;

  • The degree of difficulty in obtaining needed receipt files from other USCIS offices;

  • The degree of difficulty in determining the applicant’s continued eligibility from the first underlying petition or basis; and 

  • The extent of processing steps already taken on the adjustment application. 

All of these factors may result in processing delays which may be unacceptable to USCIS or the applicant. Requests that involve jurisdiction constraints or difficulties, or that are projected to greatly lengthen the processing time of the adjustment application, may result in the request being denied.

6. Other Eligibility Consideration

Transfer to INA 245(i) as New Underlying Basis for Adjustment

If an applicant initially filed for adjustment under INA 245(i) and paid the required additional $1000 fee, then the applicant need not pay again when requesting a transfer as long as continuity of eligibility is maintained during the transfer. However, if the applicant’s initial adjustment application was not under the provisions of INA 245(i), and the applicant is now seeking a transfer to a basis which qualifies under INA 245(i), then the applicant must pay the additional $1,000 and file Supplement A to Form I-485

Special Programs Containing Filing Deadlines

Certain programs [8] require that an applicant apply for adjustment of status by a given statutory deadline. In order to transfer the basis of an adjustment application to one of these special programs, the applicant would have to make the request no later than the filing deadline of the special program.  

B. Filing Requirements

1. New Application or Fee Not Required [9]

An applicant may submit a transfer request, in writing, to the USCIS office with jurisdiction over the application if eligibility can be established. Generally, no new adjustment application or filing fee is required. As noted above, however, a request to convert to a INA 245(i) adjustment would require payment of the additional $1,000 fee and filing of Supplement A to Form I-485.

2. Request Must Be Made in Writing

The adjustment applicant must request in writing that USCIS transfer his or her pending adjustment application from one basis to another.

If an applicant verbally requests transfer of an adjustment application, for instance, during the adjustment interview, an applicant should sign and date a written statement to that effect. The interview could then proceed without further delay provided the applicant remains eligible to immediately adjust under the new classification.

C. Petition Considerations

Prior to adjudication of an adjustment application, USCIS may allow the applicant to transfer a pending adjustment application to a different petition or basis regardless of whether the petition that forms the new basis for the pending adjustment application has already been approved or is pending, if allowable by law or regulation and provided certain requirements are met. [10] 

Only one petition may form the basis of an adjustment application at any given time. The applicant must clearly designate in writing which petition serves as the new basis of the adjustment application. Several steps are required to ensure that the petition that forms the new basis for the pending adjustment application is properly matched with a pending adjustment application. 

If concurrent filing is allowed, then transfer applicants are generally instructed to: 

  • Submit the new petition (with proper filing fee and signature) with a signed letter requesting that his or her pending adjustment application be transferred to the new petition. Include a cover sheet (preferably highlighted with colored paper) stating, “REQUEST FOR TRANSFER OF PENDING FORM I-485 (CASE #) TO ENCLOSED PETITION.”

  • Include a copy of the adjustment application’s receipt notice with the new petition filing. 

  • Include evidence of eligibility for the new immigrant category in support of the transfer request to transfer to a new eligibility basis. A new adjustment application and fee are not required (see INA 245(i) exception above). 

If concurrent filing is not allowed, then transfer applicants are generally instructed to wait until the new petition is approved before submitting a signed letter requesting the pending adjustment application be transferred, with the other documentation mentioned above. 

Once an applicant makes a request to transfer a pending adjustment application from one basis to another and if the transfer request is granted, the original petition no longer supports the adjustment application. This rule applies even if the original petition is approved. The transfer request must be made sufficiently ahead of the time of adjudication of the adjustment application in order to give USCIS reasonable time to match up the replacement petition with the pending adjustment application. An officer must deny transfer requests received on or after the date the adjustment application is finally adjudicated. 

1. Approved Petition to an Approved Petition

The beneficiary of an approved petition with a pending adjustment application may replace the approved petition with a different approved petition as the basis for the pending adjustment application. 

2. Approved Petition to a Pending Petition

The beneficiary of an approved petition with a pending adjustment application may replace the approved petition with a pending petition as the new basis for the pending adjustment application in certain categories. The new basis must allow for filing of an adjustment application prior to approval of the petition (concurrent filing), or the transfer cannot occur and should be denied. 

3. Pending Petition to an Approved Petition

An adjustment applicant with a concurrently filed and pending immigrant petition may replace the pending petition with a subsequently filed and approved petition as the basis for the pending adjustment application. 

4. Pending Petition to a Pending Petition

An adjustment applicant with a concurrently filed and pending petition may request to transfer the adjustment application to another pending petition, provided that the new basis allows for the filing of the adjustment application prior to approval of the underlying petition.

D. Portability Provisions

The portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) [11] allow an adjustment applicant with an approved employment-based petition in the EB 1st, 2nd, and 3rd preference categories to change jobs and employers if the adjustment application has been pending for 180 days or more, provided that the applicant’s new job offer is in the same or similar occupational classification as the job for which the petition was initially filed. 

If such an employment-based applicant requests to transfer the adjustment application to a different employment-based category, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request. In essence, transferring the basis of the adjustment application resets the adjudication clock for purposes of portability eligibility. [12] 

National Interest Waiver Physicians

Physicians with an approved immigrant petition based on a national interest waiver (NIW) are subject to the two-year home residence requirement of INA 212(e) and may seek to qualify for waiver of that requirement by providing their medical services for three or five years in a medically underserved area or Department of Veterans Affairs (VA) facility. [13] NIW physicians are permitted to file an adjustment application before they complete their required medical service. In these cases, USCIS holds adjudication of the adjustment application in abeyance until the applicant has fulfilled and documented the medical service requirement. 

After filing the adjustment application but before final adjudication, an NIW physician may sometimes file a self-petition based on establishing his or her own medical practice or he or she may become the beneficiary of a separate employment-based second preference immigrant petition for a prospective employer. If the second petition is approved and the new employment takes place in a medically underserved area or VA facility, the applicant may request transfer of the adjustment application to the second petition. In this scenario, the priority date of the initial NIW petition is retained. [14] 

If an NIW physician seeks to transfer his or her adjustment application to a new basis that does not involve employment in a medically underserved area or VA facility, USCIS may grant the transfer only if the applicant has already fulfilled the required medical service for the INA 212(e) waiver or has obtained a waiver in some other way.

E. Decision on Transfer Request

If the transfer request is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment application to a third basis at a later time except for possible transfers between the first three employment-based categories. 

F. Derivative Beneficiaries’ Adjustment Applications

In order to transfer a derivative beneficiary’s adjustment application, the principal adjustment applicant must maintain eligibility up until the time of the transfer request and the relationship between the principal and dependent must continue to exist. If there is a break in either the principal’s eligibility or in the relationship, the derivative’s application cannot be transferred to a new basis. In addition, if the principal transfers his or her adjustment application to another basis that does not allow for derivatives, the derivative loses eligibility for adjustment of status at the time of the transfer and the derivative’s adjustment application must be denied.

In the case of a derivative whose principal continues to maintain eligibility for adjustment and in which the relationship between the principal and derivative continues to exist, the derivative may request a transfer of the adjustment application from one basis to another and is not limited to transferring to another derivative category. For example, an applicant who meets all the other considerations could transfer from applying for adjustment as the dependent spouse of the sibling of a U.S. citizen to applying for adjustment as a principal applicant under an employment-based category. 

Footnotes


1. [^] See INA 216.

2. [^] See Section C, Petition Considerations, Subsection 2, Approved Petition to a Pending Petition [7 USCIS-PM A.8(C)(2)] and Subsection 4, Pending Petition to a Pending Petition [7 USCIS-PM A.8(C)(4)].

3. [^] See INA 205.

4. [^] See 8 CFR 205.1.

5. [^] See 8 CFR 205.2.

6. [^] See 8 CFR 204.2(h)(2) and 8 CFR 204.5(e) for exceptions. 

7. [^] See 8 CFR 204.5(e).

8. [^] For example, adjustment under Division A, Section 902 of the Haitian Refugee Immigration Fairness Act (HRIFA), Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998), or the Nicaraguan Adjustment and Central American Relief Act (NACARA), Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997).

9. [^] If, instead of requesting a transfer request, an applicant files a second adjustment application under a new basis, any fee paid by the applicant should not be refunded. However, if the applicant or his or her legal representative was advised by USCIS or legacy INS that a new application and fee were required in order to transfer from one adjustment basis to another, the applicant may request and USCIS may approve a refund of any fees paid for the second adjustment application. 

10. [^] See Section A, Eligibility Requirements [7 USCIS-PM A.8(A)] and Section B, Filing Requirements [7 USCIS-PM A.8(B)].

11. [^] See Pub. L. 106-313 (PDF) (October 17, 2000).

12. [^] Portability of an underlying employment-based petition should not be confused with the transfer of the adjustment application to a new petition or basis. Applicants who wish to avail themselves of AC21 portability need not request transfer of the adjustment application. 

13. [^] See 65 FR 53889 (PDF) (Sept. 6, 2000).

14. [^] See 8 CFR 204.12(f)(1) or 8 CFR 204.12(f)(2).

Chapter 9 - Death of Petitioner or Principal Beneficiary

A. General

In the past, a petition could not be approved if the petitioner died while the petition remained pending. [1] In 2009, Congress addressed this scenario with a new statutory provision, INA 204(l). [2] This provision gave aliens the ability to seek an immigration benefit through a deceased qualifying relative in certain circumstances.

An officer may approve an adjustment application, certain petitions, and related applications adjudicated on or after October 28, 2009, [3] if: 

  • The applicant resided in the United States when the qualifying relative died;

  • ​The applicant continues to reside in the United States on the date of the decision on the pending application; and 

  • ​The applicant is at least one of the following:

    • A beneficiary of a pending or approved immediate relative immigrant visa petition;

    • A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and any derivative beneficiaries;

    • Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;

    • ​The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);

    • ​An alien admitted as a derivative T or U nonimmigrant; or

    • ​A derivative asylee. [4] 

This applies to an adjustment of status application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of INA 204(l), and INA 204(l) could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of this new law.

1. Qualifying Relative

An alien’s deceased relative must meet the definition of qualifying relative in order for the alien to be eligible to seek an immigration benefit through that person.

Although Congress did not expressly define “qualifying relative” in this situation, it did provide a list of aliens who may seek an immigration benefit through the qualifying relative. [5] Therefore, for purposes of seeking adjustment of status, USCIS infers that qualifying relative means a person who, immediately before death, was:

  • The petitioner in an immediate relative immigrant visa petition;

  • ​The petitioner in a family-based immigrant visa petition;

  • ​The principal beneficiary in a widow(er)’s immediate relative immigrant visa petition;

  • ​The principal beneficiary in a widow(er)’s family-based immigrant visa petition;

  • ​The principal beneficiary in an employment-based immigrant visa petition;

  • ​The petitioner in a Refugee/Asylee Relative Petition (Form I-730);

  • ​The principal alien admitted as a T or U nonimmigrant; or

  • ​The principal asylee granted asylum.

2. Residency Requirement

An applicant must have resided in the United States when the qualifying relative died, and continues to reside in the United States to adjust status based on the deceased qualifying relative. [6] 

INA 204(l) defines an applicant’s residence as his or her “principal, actual dwelling place in fact, without regard to intent.” [7] If the applicant’s residence was in the United States at the required times, the applicant meets the residency requirement.

An applicant who was temporarily abroad when the qualifying relative died does not need to prove that he or she still resides in the United States. Further, the statutory definition of residence does not require the applicant to show that his or her presence in the United States is lawful. Execution of a removal order, however, terminates an alien’s residence in the United States.

3. Derivatives

For purposes of derivative beneficiaries, [8] as long as any one surviving beneficiary of a covered petition meets the residence requirement, then the petition may be approved despite the death of the qualifying relative. All the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. [9] It is not necessary for each beneficiary to meet the residence requirements in order to remain eligible to adjust.

B. Effect on Adjustment Application

The officer may approve an adjustment application that was pending when the qualifying relative died if: 

  • The applicant meets the residency requirement; [10] 

  • ​The underlying petition is approved under INA 204(l), or the pre-death approval of the underlying petition is reinstated; [11] and

  • ​The applicant meets all other adjustment requirements.

INA 204(l) does not limit or waive any eligibility requirements or adjustment bars that apply, other than the lack of a qualifying relative due to death. Therefore, the applicant must have been eligible to apply for adjustment at the time the application was filed and at final adjudication, including visa availability and admissibility. [12] In addition, the applicant must not be barred from adjusting status. [13] 

For example, the death of the qualifying relative does not relieve an applicant seeking adjustment under INA 245(a) of the need to establish a lawful inspection and admission or inspection and parole, among other requirements for 245(a) adjustment. [14] 

Therefore, if at the time the qualifying relative died, the beneficiary had not yet filed for adjustment, the beneficiary may only apply once the underlying petition is approved or reinstated. However, if at the time the qualifying relative died, there was a properly filed adjustment application pending and the beneficiary was eligible to adjust, approval or reinstatement of an approved underlying petition preserves any eligibility for adjustment that existed immediately before the qualifying relative died. 

INA 204(l) may benefit applicants who seek adjustment based on a derivative asylum grant, as a derivative T nonimmigrant, or as a derivative U nonimmigrant. [15] Any one of these aliens may still be eligible for adjustment in light of INA 204(l), despite the death of the qualifying relative. However, the applicant must still establish eligibility for adjustment, apart from the qualifying relative’s death.

1. Admissibility and Waivers

INA 204(l) does not automatically waive any ground of inadmissibility that may apply to an adjustment applicant. [16] The applicant must be admissible, or must obtain a waiver of inadmissibility or other form of relief available, before adjustment may be granted.

Affidavit of Support and Public Charge Considerations [17] 

The death of the qualifying relative does not relieve the applicant of the need to have a valid and enforceable Affidavit of Support (Form I-864), if required. [18] The Affidavit of Support establishes that the sponsored applicant is not likely to become a public charge and therefore is not inadmissible on such ground. [19] 

If the petitioner dies, the applicant typically must obtain a substitute sponsor to continue to be eligible for adjustment of status. A substitute sponsor is needed even if the deceased petitioner has completed a Form I-864. 

However, the death of the principal beneficiary has no bearing, by itself, on the sufficiency of the Affidavit of Support. In these cases, if the Affidavit of Support has not been filed but is required, then the original petitioner must still file an Affidavit of Support for the derivative applicants to be able to adjust.

Effect of Death of Qualifying Relative on Waiver Adjudication

Even though INA 204(l) does not impact adjustment requirements related to admissibility and waivers, the provision does “remove ineligibility based solely on the lack of a qualifying family relationship.” Since INA 204(l) affects not only the visa petition and adjustment application but also any related application, USCIS has determined that INA 204(l) provides the discretion to grant a waiver or other form of relief from inadmissibility to a qualifying applicant, even if the qualifying relationship that would have supported the waiver has ended through death. It is not necessary for the waiver or other relief application to have been pending when the qualifying relative died.

A waiver or other relief application may be approved despite the death of the qualifying relative if: 

  • A petition or adjustment application was pending or approved when the qualifying relative died; and

  • ​The applicant meets the residency requirement. [20] 

If a pending petition or application to which INA 204(l) applies is denied despite INA 204(l), the applicant may not obtain approval of a waiver or other relief under INA 204(l). 

Some waivers require a showing of extreme hardship to a qualifying relative, who must be either a U.S. citizen or lawful permanent resident (LPR). Since the legislation intends to have INA 204(l) extend not only to the approval of the pending petition, but also to any related applications, the fact that the qualifying relative has died should be noted in the waiver decision. If the qualifying relative who died is the same qualifying relative to whom extreme hardship must be established in order to grant a waiver, USCIS treats the qualifying relative’s death as the functional equivalent of a finding of extreme hardship. However, for this to apply, the deceased relative must have been a U.S. citizen or LPR at the time of death. [21] 

A finding of extreme hardship permits, but does not compel, a favorable exercise of discretion. [22] As with any other discretionary waiver application, the officer should weigh the favorable factors against any adverse factors. Extreme hardship is just one positive factor to be weighed in the discretionary determination. [23] The conduct that made the alien inadmissible is itself an adverse factor. [24] For example, if the alien is inadmissible based on criminal grounds, the officer considers the nature, seriousness, and underlying circumstances of the crime to determine the weight given to this adverse factor.

2. Conditional Residency

If an adjustment applicant would have received permanent residence on a conditional basis due to the recent nature of the marriage to the petitioning spouse, but the petitioning spouse dies before adjustment is granted, then the adjustment applicant should receive permanent residence without condition. 

Even if the adjustment applicant obtained conditional permanent residence, the fact that the marriage was terminated due to death would make the applicant eligible to apply for a waiver of certain requirements associated with conditional permanent resident (CPR) status. [25] The officer may grant an eligible applicant permanent residence without conditions if the officer determines the marriage was bona fide and entered into in good faith while the qualifying relative was alive. [26] 

3. Discretionary Denials

INA 204(l) gives USCIS discretion to deny a petition or application that may be approved despite the qualifying relative’s death if USCIS finds, as a matter of discretion, that approval would not be in the public interest. [27] This exercise of discretion is unreviewable. [28] 

Before denying a visa petition or adjustment application as a matter of discretion on the ground that approval would not be in the public interest, an officer must consult with the appropriate USCIS headquarters office or directorate through appropriate channels. 

Consultation is not required if the officer will deny the case solely on the traditional discretionary factors that would have applied to the particular case, even if the qualifying relative were still alive. For example, fraud or criminal grounds of inadmissibility that have not or cannot be waived, or security grounds, may warrant denial as a matter of discretion under ordinary circumstances. Consultation is not required in such a case. 

C. Motions to Reopen

INA 204(l) does not require USCIS to reopen or reconsider any decision denying a petition or application, if the denial had already become final before October 28, 2009. For a case denied before that date, an applicant may file (with proper fee) an untimely motion to reopen the petition, adjustment application, or waiver application that was denied if INA 204(l) allows approval of a still-pending petition or application. 

The applicant should present new evidence, including: 

  • Proof of the relative’s death; 

  • ​Proof that the applicant was residing in the United States when the relative died; and 

  • ​Proof that the applicant continues to reside in the United States. 

If the applicant establishes the proof required, an officer may favorably exercise discretion to reopen the petition or application, and make a new decision in light of the law.

An alien present in the United States unlawfully does not accrue unlawful presence while a properly filed adjustment application is pending. If USCIS grants a motion to reopen a denied adjustment application under this section, the application will be pending again and is deemed to be pending from the original date of filing. Therefore, reopening an adjustment application under INA 204(l) will cure any unlawful presence that may have accrued between the original denial and the new decision. The result is that the applicant will not have accrued any unlawful presence from the original filing of the adjustment application until there is a final decision. 

If the applicant is otherwise inadmissible because of unlawful presence accrued before applying for adjustment, the applicant must seek a waiver or other form of relief to address the inadmissibility. [29] 

Footnotes


1. [^] See Matter of Sano (PDF), 19 I&N Dec. 299 (BIA 1985). See Matter of Varela (PDF), 13 I&N Dec. 453 (BIA 1970).

2. [^] See Section 568(d) of Pub. L. 111-83 (PDF), 123 Stat. 2142, 2187 (October 28, 2009). See INA 204(l). The law does not expressly define the “qualifying relative.” From the list of aliens to whom the new INA 204(l) applies, however, USCIS infers that “qualifying relative” means a person who, immediately before death was: (1) the petitioner in an immediate relative or family-based immigrant visa petition under INA 201(b)(2)(A)(i) or INA 203(a); or (2) the principal beneficiary in a widow(er)’s immediate relative or family-based visa petition case under INA 201(b)(2)(A)(i) or INA 203(a).

3. [^] INA 204(l) applies to cases filed before October 28, 2009, and cases in which the qualifying relative died before October 28, 2009, as long as the case is adjudicated on or after October 28, 2009.

4. [^] See INA 208(b)(3).

5. [^] See INA 204(l).

6. [^] See INA 204(l).

7. [^] See INA 101(a)(33).

8. [^] See INA 203(d). See INA 207(c)(2)(A). See INA 208(b)(3)(A).

9. [^] The surviving derivative beneficiaries may retain the classification and priority date from the underlying petition and adjust status despite the principal beneficiary’s death.

10. [^] See INA 204(l). See Section A, General, Subsection 2, Residency Requirement [7 USCIS-PM A.9(A)(2)].

11. [^] If the qualifying relative is the principal beneficiary, the officer should also ensure the underlying petition has not been withdrawn by the petitioner. Although INA 204(l) allows a derivative beneficiary the ability to continue to seek adjustment despite the death of the principal beneficiary, INA 204(l) does not require the petitioner to continue to sponsor the applicant. An immigrant visa petitioner may withdraw a pending petition at any time before the admission or adjustment of the beneficiary. See 8 CFR 103.2(b)(6).

12. [^] See INA 245(a). See 8 CFR 103.2(b)(1).

13. [^] See INA 245(c)

14. [^] Unless the applicant qualifies under INA 245(i) adjustment.

15. [^] See INA 209. See INA 245(l) and INA 245(m).

16. [^] See Section 568(d)(2) of Pub. L. 111-83 (PDF), 123 Stat. 2142, 2187 (October 28, 2009).

17. [^] For more information, see the USCIS website

18. [^] See INA 212(a)(4)(C). See INA 213A. See 8 CFR 213a.2.

19. [^] See INA 212(a)(4).

20. [^] See INA 204(l). See Section A, General, Subsection 2, Residency Requirement [7 USCIS-PM A.9(A)(2)].

21. [^] If an applicant was not eligible to receive a waiver because the applicant did not have the requisite U.S. citizen or LPR qualifying relative, INA 204(l) would not make the applicant eligible. 

22. [^] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996).

23. [^] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996). 

24. [^] See INS v. Yang (PDF), 519 U.S. 26 (1996).

25. [^] See 8 CFR 216.4(a)(1). See 8 CFR 216.5.

26. [^] The analysis of the marriage should be the same as the analysis conducted when determining whether to remove conditions to permanent residence under INA 216.

27. [^] See INA 204(l)(1).

28. [^] See INA 204(l)(1).

29. [^] See Section B, Effect on Adjustment Application, Subsection 1, Admissibility and Waivers [7 USCIS-PM A.9(B)(1)].

Chapter 10 - Legal Analysis and Use of Discretion

A. Burden of Proof and Standard of Proof

In matters involving immigration benefits, the applicant always has the burden of proving that he or she is eligible to receive the immigration benefit sought. [1] 

The standard of proof applied in adjustment proceedings should not be confused with the burden of proof. [2] The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit. 

In adjustment of status, the standard of proof is generally preponderance of the evidence, proving a claimed fact is more likely than not to be true. [3] If the applicant is unable to prove his or her eligibility for the immigration benefit by a preponderance of the evidence, the officer must request additional evidence or deny the application. [4] 

B. Discretion

Most adjustment applicants may only be granted permanent resident status in the discretion of USCIS. [5] 

The following table highlights the adjustment case types that involve discretion. 

Adjustment Applications Involving Discretion

INA 245(a) Adjustment (including family and employment based as well as the Diversity Visa Program)

Human Trafficking Victim Adjustment

Crime Victim Adjustment

Asylum Adjustment

Cuban Adjustment Act

Former Soviet Union, Indochinese, or Iranian Parolees (Lautenberg Parolees)

Diplomats or High Ranking Officials Unable to Return Home (Section 13 of the Act of September 11, 1957)

The following table highlights the adjustment cases that do not involve discretion. Therefore, provided the applicant meets all eligibility requirements, USCIS must approve the application.

Adjustment Applications Not Involving Discretion

NACARA (Nicaraguan Adjustment and Central American Relief Act of 1997) [6] 

Refugee Adjustment

HRIFA (Haitian Refugee Immigration Fairness Act of 1998) [7] 

Persons Born Under Diplomatic Status

Presumption of Lawful Admission

American Indian Creation of Record

For adjustment case types that involve discretion, the exercise of favorable discretion and the approval of an adjustment application is a matter of administrative grace – meaning the application is worthy of favorable consideration. [8] For adjustment case types that involve discretion, discretion can only extend up to the substantive and jurisdictional limits of the applicable law. Discretion cannot be used to justify an action that is not authorized by law.

1. Determining Whether Favorable Exercise of Discretion is Warranted

For adjustment case types that involve discretion, an applicant who meets the eligibility requirements contained in the law is eligible for adjustment of status but is not entitled to adjustment. The applicant has the burden of proving that discretion should be exercised in his or her favor. [9] An applicant must supply information within his or her knowledge that is relevant and material to a determination of whether adjustment is warranted. [10] 

An officer must first determine whether the applicant otherwise meets the legal eligibility requirements. For example, in adjudicating an application for adjustment under INA 245(a), the officer first determines if the applicant is barred from applying for adjustment, is eligible to receive an immigrant visa, is admissible to the United States, and if a visa number is immediately available. 

If the officer finds that the applicant meets the eligibility requirements, the officer then determines whether the application should be granted as a matter of discretion.

2. Issues and Factors to Consider

Absent compelling negative factors, an officer should exercise favorable discretion and approve the application. [11] If the officer finds negative factors, the officer must weigh all of the positive and negative factors. The list of issues and factors may include, but is not limited to:

  • Eligibility;

  • Immigration status and history;

  • Family unity;

  • Length of residence in the United States;

  • Business and employment; and

  • Community standing and moral character.

In cases where a removal order has been issued to an “arriving alien” but not executed, USCIS generally does not exercise favorable discretion. The USCIS officer may consult with the local Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) office concerning the merits and equities of the case and whether the removal order might be withdrawn.

If ICE withdraws or rescinds the removal order or obtains a withdrawal or rescission of the removal order from EOIR, then the local USCIS field office adjudicates the case as appropriate. If the removal order is not withdrawn or rescinded, then the removal order should be considered a significant adverse factor and any denial of adjustment may include the grounds cited in the removal order.

3. Proper Use of Discretion

The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent on intangible or imagined circumstances. At the same time, there is no calculation that lends itself to a certain conclusion. 

An officer should determine whether to approve an adjustment application as a matter of discretion by: 

  • Considering any positive or negative factors relevant to the applicant’s case;

  • Evaluating the case-specific considerations for each factor;

  • Avoiding the use of numbers, points, or any other analytical tool that suggest quantifying the exercise of favorable or unfavorable discretion; and 

  • Assessing whether on balance a favorable exercise of discretion is warranted in light of all the facts and the positive and negative factors. 

Precedent case law provides guidance on how to consider evidence and weigh the favorable and adverse factors present in a case. These precedent decisions and USCIS guidance provide a framework to assist officers in arriving at decisions which are consistent and fair.

Discretionary decisions that involve complex or unusual facts, whether the outcome is favorable or unfavorable to the applicant, may require supervisory review. Further, officers may consult the Office of Chief Counsel through appropriate supervisory channels.

C. Summary of Adjudication Involving Discretion

The following tables provide a general guideline for how eligibility requirements and discretion play a role in the decision on an adjustment application.

Summary of Adjudication Involving Discretion

Has Applicant Otherwise Met Eligibility Requirements?

Does Applicant Warrant a Favorable Exercise of Discretion?

Decision

Yes

 

Yes, the positive factors outweigh the negative factors

 

Approve the application. Eligibility requirements are met and a favorable exercise of discretion is warranted. 

Yes

 

No, the negative factors outweigh the positive factors

 

Deny the application. Eligibility requirements are met but a favorable exercise of discretion is not warranted. 

The officer should explain the reasons why USCIS is not exercising discretion in the applicant’s favor. The officer should clearly set forth the positive and negative factors considered and why the negative factors outweigh the positive factors. 

No

No, even if the positive factors outweigh the negative factors

Deny the application. Eligibility requirements are not met.

The officer should explain the reasons why the applicant has not met the eligibility requirements. Even if the positive factors outweigh the negative factors, discretion cannot be used to approve an application if the applicant does not meet the statutory requirements.

No 

No, the negative factors outweigh the positive factors 

 

 

Deny the application. Eligibility requirements are not met and a favorable exercise of discretion is not warranted.

It is generally preferable to describe both the statutory and discretionary reasons for the denial, but an officer is not required to discuss the discretionary grounds where the statutory ones are clear.

If the determination on eligibility requirements might be overturned (e.g., where there is an unsettled area of law), an officer should explain the discretionary basis for denying the case. 

The officer should explain the reasons why USCIS is not exercising discretion in favor of the applicant. The officer should clearly describe the positive and negative factors considered and why the negative factors outweigh the positive factors.

Footnotes


1. [^] See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978). See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967).

2. [^] The person who bears the burden of proof must submit evidence to satisfy the applicable standard of proof. 

3. [^] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).

4. [^] The law occasionally requires a higher standard of proof. For example, the higher standard of “clear and convincing evidence” is required to rebut the presumption of a prior fraudulent marriage. See INA 245(e)(3).

5. [^] See INA 245(a).

6. [^] See Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997).

7. [^] See Division A, Section 902 of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998).

8. [^] See Von Pervieux v. INS, 572 F.2d 114, 118 (3rd Cir. 1978). See Ameeriar v. INS, 438 F.2d 1028, 1030 (3rd Cir. 1971). See Matter of Marques (PDF), 16 I&N Dec. 314 (BIA 1977). 

9. [^] See Matter of Arai (PDF), 13 I&N Dec. 494 (BIA 1970). See Matter of Ortiz-Prieto (PDF), 11 I&N Dec. 317 (BIA 1965).

10. [^] See Matter of Marques (PDF), 16 I&N Dec. 314 (BIA 1977). See Matter of Mariani (PDF), 11 I&N Dec. 210 (BIA 1965). See Matter of De Lucia (PDF), 11 I&N Dec. 565 (BIA 1966). See Matter of Francois (PDF), 10 I&N Dec. 168 (BIA 1963). See Matter of Pires Da Silva (PDF), 10 I&N Dec. 191 (BIA 1963). 

11. [^]See Matter of Arai (PDF), 13 I&N Dec. 494 (BIA 1970). See Matter of Lam (PDF), 16 I&N Dec. 432 (BIA 1978).

Chapter 11 - Decision Procedures

A. Approvals​

If the adjustment application is properly filed, the applicant meets all eligibility requirements, a visa number is immediately available, and the applicant is admissible to the United States, then an officer may approve the application. 

1. Effective Date of Permanent Residence

For the majority of adjustment cases, the effective date of permanent residence is the date the adjustment application is approved. Certain sections of law, however, allow for the date of admission to roll back to an earlier date. 

2. Class of Admission

Each approved case is given a class of admission (COA) that identifies the section of law the applicant used to adjust status to a lawful permanent resident. For abbreviation purposes, a symbol or code represents that classification. 

Written notice of approval is mailed to the applicant and attorney or authorized representative, as applicable. Upon approval, the officer must confirm that the information is up-to-date and accurate in the relevant systems to ensure accurate statistical reporting and card production. In cases where an officer approved both the underlying petition and adjustment application, the officershould verify that the underlying petition shows as being approved in the system before approving the adjustment application.

If the officer determines that the case is approvable during the interview and the applicant anticipates immediate emergency travel, the officer may place a stamp as proof of temporary permanent resident status in the applicant’s passport, per local office guidelines. The stamp must have a dry seal affixed to be valid for travel.

B. Notices of Intent to Deny

If an officer is basing a decision in whole or in part on information of which the applicant is unaware or could not reasonably be expected to be aware, the officer must issue a Notice of Intent to Deny (NOID). [1] The NOID provides the applicant an opportunity to review and respond to the information, unless the information is classified. [2] 

C. Denials

An adjustment application must be denied for ineligibility. The application may also be denied for discretionary reasons, if applicable. Upon denial of a case, the officer must update ICMS and CLAIMS, and issue a notice of denial. Automatic denial notices are not issued by the systems. 

Denial on Basis of Ineligibility or for Discretionary Reasons

Basis of Denial

Denial Notice Should …

Ineligibility

Explain what eligibility requirements are not met and why they are not met

Discretionary Reasons

(if applicable)

Explain the positive and negative factors considered, the relative weight given to each factor individually and collectively, and why the negative factors outweigh the positive factors

 

In addition, a denial notice should:

  • Provide the reasons for the denial in clear language that the applicant can understand;​

  • Cite to the relevant sections of law, regulations, and precedent decisions (if any); and

  • Explain that there is no right to appeal the denial but that the applicant may file a motion to reopen or reconsider. 

With rare exception, there is no appeal from the denial of adjustment of status. [3] USCIS, however, may certify the case for review by the Administrative Appeals Office (AAO). [4] The applicant also may renew the adjustment application in any subsequent removal proceedings. [5] 

Footnotes


1. [^] For example, investigative reports, information from informants, school records, or employment records not provided by the applicant.

2. [^] See 8 CFR 103.2(b)(16)(iv).

3. [^] See 8 CFR 245.2(a)(5)(ii). However, see 8 CFR 245.3 providing the right of appeal for applicants under Section 13 of the Act of September 11, 1957, Pub. L. 85-316 (PDF), and 8 CFR 245.23(i) providing the right of appeal for applicants based on T nonimmigrant status. 

4. [^] See 8 CFR 103.4(a)(4) and 8 CFR 103.4(a)(5). Certification to the AAO may be appropriate when a case involves complex legal issues or unique facts. An officer may consult through appropriate supervisory channels with the Office of Chief Counsel for guidance on certifying a decision to the AAO.

5. [^] See INA 240A.

Part B - 245(a) Adjustment

Chapter 1 - Purpose and Background

A. Purpose

Section 245 of the Immigration and Nationality Act (INA) allows certain aliens who are physically present in the United States to adjust status to that of a lawful permanent resident (LPR). Most adjustment applicants file their adjustment of status applications based on INA 245(a)

B. Background

The Immigration Act of 1924 required all intending immigrants to obtain an immigrant visa at a U.S. embassy or consulate abroad [1] (commonly known as “consular processing”). An alien physically present in the United States could not become an LPR without leaving the United States to consular process abroad.

By 1935, immigration authorities had developed an administrative process of “pre-examination” that enabled an alien temporarily in the United States to obtain LPR status more quickly and easily. [2] Pre-examination consisted of an official determination in the United States of the alien’s eligibility for an immigrant visa, the immigrant’s travel to Canada or elsewhere for an arranged immigrant visa appointment at a U.S. consulate, and the immigrant’s prompt return and admission to the United States as a LPR. From 1935 to 1950, the government processed over 45,000 pre-examination cases. [3] 

In 1952, Congress made the pre-examination process unnecessary by creating INA 245, which allowed eligible aliens to obtain LPR status through adjustment of status without leaving the United States. [4] Congress indicated that adjustment should be used for purposes of family unity or otherwise be in the public interest. [5] 

Over time, Congress revised and consolidated the eligibility requirements for adjustment of status into the current INA 245(a). The bars, restrictions, and special considerations to adjustment are found in INA 245(c) through INA 245(k). Applicable inadmissibility grounds, including public safety and security concerns are found in INA 212

C. Scope

The guidance in this Policy Manual part only addresses adjustment of status under INA 245(a). [6] Certain aliens may be eligible to adjust under other provisions of law, as detailed in other parts of this volume.

D. Legal Authorities

  • INA 245(a)8 CFR 245 – Adjustment of status to that of person admitted for permanent residence

  • INA 245(c) – Bars to adjustment of status

  • INA 245(k) – Inapplicability of certain provisions for certain employment-based immigrants

Footnotes


1. [^] See Section 13 of the Immigration Act of 1924, Pub. L. 68-139 (May 26, 1924).

2. [^] See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, Section 7.3a. See Jain v. Immigration and Naturalization Service, 612 F.2d 683 (2nd Cir. 1979).

3. [^] See Sofaer, The Change of Status Adjudication: A Case Study of the Informal Agency Process, 1 J. Legal Studies 349, 351 (1971).

4. [^] See Section 245 of the Immigration and Nationality Act of 1952, Pub. L. 82-414 (PDF) (June 27, 1952).

5. [^] See H.R. Rep. 82-1365 (Feb. 14, 1952).

6. [^] There are many statutory bases for adjustment. For instance, refugees and asylees may adjust status under INA 209(c), which outlines slightly different rules and requirements for adjustment than under INA 245(a). The basis under which an applicant seeks adjustment of status is therefore key in determining the eligibility requirements for adjustment as well as exceptions, exemptions, waivers, and any other program-specific laws or benefits that may apply.

Chapter 2 - Eligibility Requirements

An alien must meet certain eligibility requirements to adjust status to that of a lawful permanent resident (LPR).

INA 245(a) Adjustment of Status Eligibility Requirements 

The applicant must have been:

  • Inspected and admitted into the United States; or

  • Inspected and paroled into the United States.

The applicant must properly file an adjustment of status application.

The applicant must be physically present in the United States.

The applicant must be eligible to receive an immigrant visa.

An immigrant visa must be immediately available when the applicant files the adjustment of status application [1] and at the time of final adjudication. [2] 

The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.

The applicant merits the favorable exercise of discretion. [3] 

A. “Inspected and Admitted” or “Inspected and Paroled”

In 1960, Congress amended INA 245(a) and made adjustment of status available to any otherwise eligible applicant who has been “inspected and admitted or paroled” into the United States. [4] Since 1960, the courts, legacy Immigration and Naturalization Service, and USCIS have read the statutory language “inspected and admitted or paroled” as:

  • Inspected and admitted into the United States; or

  • ​Inspected and paroled into the United States. 

This requirement must be satisfied before the alien applies for adjustment of status. [5] If an applicant has not been inspected and admitted or inspected and paroled before filing an adjustment application, the officer must deny the adjustment application. [6] 

The inspected and admitted or inspected and paroled requirement does not apply to the following aliens seeking adjustment of status:

  • INA 245(i) applicants; and

  • Violence Against Women Act (VAWA) applicants. [7] 

Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States. [8] Certain special immigrants also meet this requirement. [9] 

1. Inspection

Authority

Per delegation by the Secretary of Homeland Security, U.S. Customs and Border Protection (CBP) has jurisdiction over and exclusive inspection authority at ports-of-entry. [10] 

Definition and Scope

Inspection is the formal process of determining whether an alien may lawfully enter the United States. Immigration laws as early as 1875 specified that inspection must occur prior to an alien’s landing in or entering the United States and that prohibited aliens were to be returned to the country from which they came at no cost or penalty to the conveyor or vessel. [11] Inspections for air, sea, and land arrivals are now codified in the INA, including criminal penalties for illegal entry. [12] 

To lawfully enter the United States, an alien must apply and present himself or herself in person to an immigration officer at a U.S. port of entry when the port is open for inspection. [13] An alien who arrives at a port of entry and presents himself or herself for inspection is an applicant for admission. Through the inspection process, an immigration officer determines whether the alien is admissible and may enter the United States under all the applicable provisions of immigration laws. 

As part of the inspection, the alien must: 

  • Present any and all required documentation, including fingerprints, photographs, other biometric identifiers, documentation of status in the United States, and any other requested evidence to determine the alien’s identity and admissibility; and

  • Establish that he or she is not subject to removal under immigration laws, Executive Orders, or Presidential Proclamations.[14] 

In general, if the alien presents himself or herself for questioning in person, the inspection requirement is met. [15] Nonetheless, if the alien enters the United States by falsely claiming U.S. citizenship, the alien is not considered to have been inspected by an immigration officer. In addition, the entry is not considered an admission for immigration purposes. [16] 

Inspection Outcomes

Upon inspection, the officer at the port of entry typically decides one of the following outcomes for the alien:

  • The officer admits them;

  • The officer paroles them;

  • The officer allows them to withdraw his or her application for admission and depart immediately from the United States; [17] 

  • The officer denies them admission into the United States; or 

  • The officer defers the inspection to a later time at either the same or another CBP office or a port of entry. [18] 

2. Admission [19]

An alien is admitted if the following conditions are met: [20] 

  • The alien applied for admission as an “alien” at a port of entry; and

  • An immigration officer inspected the applicant for admission as an “alien” and authorized him or her to enter the United States in accordance with the procedures for admission. [21] 

An alien who meets these two requirements is admitted, even if the alien obtained the admission by fraud. [22] Likewise, the alien is admitted, even if the CBP officer performed a cursory inspection. 

As long as the alien meets the procedural requirements for admission, the alien meets the inspected and admitted requirement for adjustment of status. [23] Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee. 

Notwithstanding, if the alien makes a false claim to U.S. citizenship or to U.S. nationality at the port of entry and an immigration officer permits the alien to enter the United States, the alien has not been admitted. [24] A U.S. citizen arriving at a port of entry is not subject to inspection; therefore, an alien who makes a false claim to U.S. citizenship is considered to have entered without inspection. [25] 

Similarly, an alien who entered the United States after falsely claiming to be a returning LPR is not considered to have been procedurally inspected and admitted because a returning LPR generally is not an applicant for admission. [26] An LPR returning from a temporary trip abroad would only be considered to be seeking admission or readmission to the United States if any of the following factors applies: 

  • The LPR has abandoned or relinquished his or her LPR status;

  • The LPR has been absent from the United States for a continuous period in excess of 180 days;

  • The LPR has engaged in illegal activity after having departed the United States;

  • The LPR has departed from the United States while under legal process seeking his or her removal from the United States, including removal proceedings under the INA and extradition proceedings;

  • The LPR has committed an offense described in the criminal-related inadmissibility grounds, unless the LPR has been granted relief for the offense; [27] or

  • The LPR is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer. [28] 

Evidence of Admission

An Arrival/Departure Record (Form I-94), including a replacement [29] when appropriate, is the most common document evidencing an alien’s admission. [30] The following are other types of documentation that may be accepted as proof of admission into the United States:

  • Admission stamp in passport, which may be verified using Department of Homeland Security (DHS) systems; 

  • ​Employment Authorization Card (Form I-688A), for special agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application;

  • ​Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the last claimed date of entry on the adjustment application; and

  • ​Border Crossing Card (Form I-586 or Form DSP-150 [31] ), provided it was valid on the date of last claimed entry.

When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record: [32] 

  • A Canadian citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly transit through the United States;

  • A nonimmigrant residing in the British Virgin Islands who was admitted only to the United States Virgin Islands as a visitor for business or pleasure; [33] 

  • A Mexican national admitted with a B-1/B-2 Visa and Border Crossing Card (Form DSP-150) at a land or sea port of entry as a visitor for business or pleasure for a period of 30 days to travel within 25 miles of the border; and

  • A Mexican national in possession of a Mexican diplomatic or official passport. [34] 

In these situations, an applicant should submit alternate evidence to prove his or her inspection and admission to the United States. This may include a Border Crossing Card, plane tickets evidencing travel to the United States, or other corroborating evidence.

3. Parole

Authority

The Secretary of Homeland Security delegated parole authority to USCIS, CBP, and U.S. Immigration and Customs Enforcement (ICE). [35] 

Definition and Scope

An alien is paroled if the following conditions are met: 

  • They are seeking admission to the United States at a port of entry; and 

  • An immigration officer inspected them as an “alien” and permitted them to enter the United States without determining whether they may be admitted into the United States. [36] 

A grant of parole is a temporary and discretionary act exercised on a case-by-case basis. Parole, by definition, is not an admission.[37] 

Paroled for Deferred Inspection [38] 

On occasion, CBP grants deferred inspection to arriving aliens found inadmissible during a preliminary inspection at a port of entry. Deferred inspection is generally granted only after CBP:

  • Verifies the alien’s identity and nationality;

  • ​Determines that the alien would likely be able to overcome the identified inadmissibility by obtaining a waiver or additional evidence; and

  • ​Determines that the alien does not present a national security risk to the United States.

The decision to defer inspection is at the CBP officer’s discretion. 

If granted deferred inspection, CBP paroles the alien into the United States and defers completion of the inspection to a later time. An alien paroled for a deferred inspection typically reports for completion of inspection within 30 days of the deferral [39] to a CBP office with jurisdiction over the area where the alien will be staying or residing in the United States.[40] 

The grant of parole for a deferred inspection satisfies the “inspected and paroled” requirement for purposes of adjustment eligibility. [41] 

Urgent Humanitarian Reasons or Significant Public Benefit

DHS may parole an alien based on urgent humanitarian or significant public benefit reasons. [42] DHS may grant urgent humanitarian or significant public benefit parole only on a case-by-case basis. [43] Any type of urgent humanitarian, significant public benefit, or deferred inspection-directed parole meets the “paroled into the United States” requirement. [44] 

Parole in Place: Parole of Certain Aliens Present Without Admission or Parole 

An alien who is present in the United States without inspection and admission or inspection and parole is an applicant for admission. [45] DHS can exercise its discretion to parole such an alien into the United States. [46] In general, USCIS grants parole in place only sparingly. 

The fact that an alien is a spouse, child, or parent of an active duty member of the U.S. armed forces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. armed forces or the Selected Reserve of the Ready Reserve ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an alien. 

If DHS grants parole before the alien files an adjustment application, the alien meets the “inspected and paroled” requirement for adjustment. Parole in place does not permit approval of an adjustment application that was filed before the grant of parole. [47] 

Parole in place does not relieve the alien of the need to meet all other eligibility requirements for adjustment of status and the favorable exercise of discretion. [48] For example, except for immediate relatives and certain other immigrants, an alien must have continuously maintained a lawful status since entry into the United States. [49] 

Conditional Parole

Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility. [50] 

Evidence of Parole

Evidence of parole includes: 

  • A parole stamp on an advance parole document; [51] 

  • A parole stamp in a passport; or

  • An Arrival/Departure Record (Form I-94) endorsed with a parole stamp. [52] 

4. Commonwealth of the Northern Mariana Islands

A Commonwealth of the Northern Mariana Islands (CNMI) applicant who is granted parole meets the inspected and paroled requirement. On May 8, 2008, the Consolidated Natural Resources Act was signed into law, which replaced the CNMI’s prior immigration laws and extended most U.S. immigration law provisions to the CNMI for the first time in history. [53] The transition period for implementation of U.S. immigration law in the CNMI began on November 28, 2009. 

As of that date, all aliens present in the CNMI (other than LPRs) became present in the United States by operation of law without admission or parole. In recognition of the unique situation caused by the extension of U.S. immigration laws to the CNMI, all aliens present in the CNMI on or after that date who apply for adjustment of status are considered applicants for admission [54] to the United States and are eligible for parole.

Because of these unique circumstances, USCIS grants parole to applicants otherwise eligible to adjust status to serve as both an inspection and parole for purposes of meeting the requirements for adjustment. Under this policy, the USCIS Guam field office or the USCIS Saipan Application Support Center grants parole to an applicant otherwise eligible for parole and adjustment immediately prior to approving the adjustment of status application.

5. Temporary Protected Status [55]

An alien who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement. [56] There is no legislative provision or history to suggest that Congress intended that recipients of TPS be eligible for adjustment. [57] 

USCIS’ approval of TPS confers lawful immigration status on the alien, but only for the stipulated time period and so long as the alien complies with all TPS requirements. Recipients of TPS must still meet the threshold requirement that an alien has been inspected and admitted or inspected and paroled in order to be eligible for adjustment of status. A grant of TPS does not cure an alien’s entry without inspection or constitute an inspection and admission of the alien. [58] 

If an alien under TPS departs the United States and is admitted or paroled upon return to a port of entry, the alien meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred before he or she filed an adjustment application. The applicant, however, must still meet all other requirements to be eligible for adjustment. 

DHS has authority to admit rather than parole TPS beneficiaries who travel and return with TPS-related advance parole documents. [59] For purposes of adjustment eligibility, it does not matter whether the TPS beneficiary was admitted or paroled. In either situation, once the alien is inspected at a port of entry and permitted to enter to the United States, the alien meets the inspected and admitted or inspected and paroled requirement. 

6. Asylum [60]

An asylee whose adjustment application is based on his or her asylee status adjusts under INA 209(b). [61] An asylee, however, may seek to adjust under INA 245(a) if the asylee prefers to adjust on a basis other than the asylee’s status. This may arise in cases where, for example, an asylee marries a U.S. citizen and subsequently seeks to adjust status as an immediate relative of a U.S. citizen rather than under the asylee provision. In order to adjust under INA 245(a), however, the asylee must meet the eligibility requirements that apply under that provision. 

There may be circumstances where asylees are not able to meet certain requirements for adjustment under INA 245(a). For instance, an alien who enters without inspection and is subsequently granted asylum does not satisfy the inspected and admitted or inspected and paroled requirement. [62] On the other hand, an asylee who departs the United States and is admitted or granted parole upon return to a port of entry meets the inspected and admitted or inspected and paroled requirement. 

7. Waved Through at Port-of-Entry

In some cases, an alien may claim that he or she arrived at a port of entry and presented himself or herself for inspection as an alien, but the inspector waved (allowed to pass) him or her through the port of entry without asking any questions. 

Where an alien physically presents himself or herself for questioning and makes no knowing false claim to U.S. citizenship, the alien is considered to have been inspected even though he or she volunteers no information and is asked no questions by the immigration authorities. Such an alien satisfies the inspected and admitted requirement of INA 245(a) as long as the alien sufficiently proves that he or she was indeed waved through by an immigration official at a port of entry. [63] 

An officer may find that an adjustment applicant satisfies the inspected and admitted requirement based on a claim that he or she was waved through at a port of entry if:

  • The applicant submits evidence to support the claim, such as third party affidavits from those with personal knowledge of the facts stated in the affidavits and corroborating documentation; and 

  • ​The officer determines that the claim is credible. [64] 

The burden of proof is on the applicant to establish eligibility for adjustment of status. [65] Accordingly, the applicant must support and sufficiently establish the claim that he or she was admitted as an alien and not as a presumed U.S. citizen. For example, if the applicant was in a car with U.S. license plates and with U.S. citizens onboard, the applicant should submit persuasive evidence to establish he or she physically presented himself or herself to the inspector and was admitted as an alien. [66] 

B. Properly Filing an Adjustment Application

To adjust status, an alien must file an Application to Register Permanent Residence or Adjust Status (Form I-485) in accordance with the form instructions. The adjustment application must be properly signed and accompanied by the appropriate fee. [67] The application must be filed at the correct filing location, as specified in the form instructions. USCIS rejects adjustment applications if the application is:

  • Filed at an incorrect location; 

  • Not filed with the correct fee, unless granted a fee waiver;

  • Not properly signed; or

  • Filed when an immigrant visa is unavailable. [68] 

C. Eligible to Receive an Immigrant Visa

1. General Eligibility for an Immigrant Visa

An adjustment applicant must be eligible to receive an immigrant visa. An applicant typically establishes eligibility for an immigrant visa through an immigrant petition in one of the categories listed in the table below. 

Eligibility To Receive an Immigrant Visa

Immigrant Category

Petition 

Who May Qualify

Family-Based

Petition for Alien Relative (Form I-130)

  • Immediate relatives of U.S. citizens [69] 

  • Unmarried sons and daughters of U.S. citizens (21 years of age and older) 

  • Spouses and unmarried children (under age 21) of LPRs 

  • Unmarried sons and daughters of LPRs

  • Married sons and daughters of U.S. citizens

  • Brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older)

Family-Based

Petition for Alien Fiancé(e) (Form I-129F)

  • Fiancé(e) of a U.S. citizen

Family-Based

Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)

  • Widow or widower of a U.S. citizen

  • Violence Against Women Act (VAWA) self-petitioners

Employment-Based

Immigrant Petition for Alien Worker (Form I-140)

  • Priority workers

  • Members of the professions holding an advanced degree or persons of exceptional ability; or

  • Skilled workers, professionals, and other workers

Employment-Based

Immigrant Petition by Alien Investor (Form I-526)

  • Entrepreneurs

Special Immigrants

Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)

  • Religious workers

  • Certain international employees

  • Panama Canal Zone employees

  • Certain physicians

  • International organization officers and employees

  • Special immigrant juveniles

  • Certain U.S. armed forces members

  • Certain broadcasters

  • Certain Afghanistan and Iraq nationals

Diversity Immigrant Visa [70] 

Not applicable (Diversity visas do not require a USCIS-filed petition)

  • Diversity immigrants 

2. Dependents

The spouse and children of certain family-based, employment-based, and Diversity Immigrant Visa adjustment applicants may also obtain LPR status through their relationship with the principal applicant. Because the spouse and children do not have an independent basis to adjust status apart from their relationship to the principal immigrant, they are “dependents” of the principal for purpose of eligibility for adjustment of status. 

Dependents do not have their own underlying immigrant petition and may only adjust based on the principal’s adjustment of status. In general, dependent applicants must have the requisite relationship to the principal both at the time of filing the adjustment application and at the time of final adjudication. [71] 

3. Concurrent Filing

The immigrant petition establishing the underlying basis to adjust is typically filed before the alien files the adjustment application. In some instances, the applicant may file the adjustment application at the same time the immigrant petition is filed.[72] 

D. Immigrant Visa Immediately Available at Time of Filing and at Time of Approval

In general, an immigrant visa must be available before an alien can apply for adjustment of status. [73] An immigrant visa is always available to aliens seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application. Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application. [74] 

E. Admissible to the United States

An adjustment of status applicant must be admissible to the United States. [75] An applicant who is inadmissible may apply for a waiver of the ground of inadmissibility, if a waiver is available, or another form of relief. The applicable grounds of inadmissibility and any available waivers depend on the immigrant category under which the applicant is applying. [76] 

F. Bars to Adjustment of Status

An applicant may not be eligible to apply for adjustment of status if one or more bars to adjustment applies. [77] The bars to adjustment of status may apply to aliens who either entered the United States in a particular status or manner, or committed a particular act or violation of immigration law. [78] The table below refers to aliens ineligible to apply for adjustment of status, unless otherwise exempt. [79] 

Aliens Barred from Adjustment of Status

Alien

INA

Section

Entries and Periods of Stay to Consider

Exempt 

from Bar

Crewman [80] 

245(c)(1)

Only most recent permission to land, or admission prior to filing for adjustment

VAWA-based applicants

In Unlawful Immigration Status On The Date The Adjustment Application Is Filed

OR

Who Failed to Continuously Maintain Lawful Status Since Entry into United States [81] 

OR

Who Continues in, or accepts, Unauthorized Employment Prior to Filing for Adjustment 

245(c)(2) [82] 

All entries and time periods spent in the United States (departure and return does not remove the ineligibility) [83] 

 

 

VAWA-based applicants

Immediate relatives [84] 

Certain special immigrants[85] 

245(k) eligible [86] 

Admitted in Transit Without a Visa (TWOV)

245(c)(3)

Only most recent admission prior to filing for adjustment

VAWA-based applicants

Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program [87] 

245(c)(4)

Only most recent admission prior to filing for adjustment

VAWA-based applicants

Immediate relatives

Admitted as Witness or Informant [88] 

245(c)(5)

Only most recent admission prior to filing for adjustment

VAWA-based applicants

Who is Deportable Due to Involvement in Terrorist Activity or Group [89] 

245(c)(6)

All entries and time periods spent in the United States 

VAWA-based applicant [90] 

Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status

245(c)(7)

Only most recent admission prior to filing for adjustment

VAWA-based applicants

Immediate relatives and other family based applicants

Special immigrant juveniles[91] 

245(k) eligible [92] 

Who Has Otherwise Violated the Terms of a Nonimmigrant Visa [93] 

OR

Who has Ever Engaged in Unauthorized Employment [94] 

245(c)(8) [95] 

All entries and time periods spent in the United States (departure and return does not remove the ineligibility) [96] 

VAWA-based applicants

Immediate relatives [97] 

Certain special immigrants

245(k) eligible [98] 

In all cases, the alien is subject to any and all applicable grounds of inadmissibility even if the alien is not subject to any bar to adjustment, or is exempt from any or all the bars to adjustment. 

1. Overlapping Bars

Some bars to adjustment may overlap in their application, despite their basis in separate sections of the law. [99] For example, an alien admitted under the Visa Waiver Program who overstays the admission is barred by both INA 245(c)(2) and INA 245(c)(4). Because some bars overlap, more than one bar can apply to an applicant for the same act or violation. In such cases, the officer should address each applicable adjustment bar in the denial notice.

2. Exemptions from the Bars [100]

Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants. 

Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference [101]categories from the INA 245(c)(2)INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission. [102] 

Footnotes


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

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

3. [^] See Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion [7 USCIS-PM A.10].

4. [^] As originally enacted, INA 245(a) made adjustment available only to an alien who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See Immigration and Nationality Act of 1952, Pub. L. 82-414 (PDF), 66 Stat. 163, 217 (June 27, 1952). Admission as a bona fide nonimmigrant remained a requirement until 1960. See Pub. L. 86-648 (PDF) (July 14, 1960). Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant. 

5. [^] See 8 CFR 245.1(b)(3)

6. [^] See legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted INA 245 in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). See S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See Matter of Robles (PDF), 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

7. [^] See INA 245(a).

8. [^] See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a).

9. [^] See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a)

10. [^] See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.

11. [^] See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917).

12. [^] See INA 231-235 and INA 275. See Matter of Robles (PDF), 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

13. [^] See 8 CFR 235.1(a). See Matter of S- (PDF), 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an alien’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See Ex Parte Saadi, 23 F.2d 334 (S.D. Cal. 1927).

14. [^] See INA 235(d). See 8 CFR 235.1(f)(1).

15. [^] See Matter of Areguillin (PDF), 17 I&N Dec. 308 (BIA 1980), and Matter of Quilantan (PDF), 25 I&N Dec. 285 (BIA 2010), which held that an alien who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of INA 245(a); alternatively, an alien who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013).

16. [^] See Reid v. INS, 420 U.S. 619, 624 (1975) (an alien who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or INA 212(a)(6)(C) today, and considered to have entered without inspection).

17. [^] See INA 235(a)(4).

18. [^] Deferred inspection is a form of parole. An alien who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)]. 

19. [^] See INA 101(a)(13)(A). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See Section 301(a) of IIRIRA, Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-575 (September 30, 1996). INA 101(a)(13)(B) clarifies that parole is not admission.

20. [^] See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”

21. [^] See 8 CFR 235.1(f)(1)

22. [^] See Matter of Areguilin (PDF), 17 I&N Dec. 308 (BIA 1980). See INA 291 (burden of proof). See Emokah v. Mukasey, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the alien may be inadmissible and removable. See INA 212(a)(6)(C) and INA 237(a)(1)(A).

23. [^] See Matter of Quilantan (PDF), 25 I&N Dec. 289, 290 (BIA 2010). See Matter of Areguilin (PDF), 17 I&N Dec. 308 (BIA 1980). See INA 245(a). The alien is not inadmissible as an illegal entrant under INA 212(a)(6)(A)(i). For more information on admissibility, see Volume 8, Admissibility [8 USCIS-PM]. 

24. [^] See Matter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013) (an alien who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under INA 101(a)(13)(A)).

25. [^] See Reid v. INS, 420 U.S. 619, 624 (1975). See Matter of S- (PDF), 9 I&N Dec. 599 (BIA 1962). An alien who makes a false claim to U.S. citizenship is inadmissible for making the claim (INA 212(a)(6)(C)(ii)). The alien may also be inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and unlawful presence after previous immigration violations (INA 212(a)(9)(C)).

26. [^] Such aliens are inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(6)(A)(i) and INA 212(a)(9)(C).

27. [^] See INA 212(a)(2). See INA 212(h) and INA 240A(a).

28. [^] See INA 101(a)(13)(C). See generally Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997). The alien who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and fraud and misrepresentation (INA 212(a)(6)(C)(i)). The alien may also be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(9)(C).

29. [^] This will typically be documented by an approved Application for Replacement/Initial Nonimmigrant Arrival-Departure Document (Form I-102).

30. [^] CBP or USCIS can issue an Arrival/Departure Record (Form I-94). If admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94. To obtain a paper version of an electronic Form I-94, visit the CBP Web site. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CBP may also be able to obtain a replacement Form I-94 from the CBP Web site without charge. Applicants may also obtain Form I-94 by filing an Application for Replacement/Initial Nonimmigrant Arrival-Departure Record (Form I-102), with USCIS. USCIS charges a fee for this service. 

31. [^] Form DSP-150 is issued by the Department of State.

32. [^] See 8 CFR 235.1(h)(1)(i)-(v).

33. [^] See 8 CFR 212.1(b).

34. [^] See 8 CFR 212.1(c).

35. [^] See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.

36. [^] See INA 212(d)(5)(A).

37. [^] See INA 101(a)(13)(B) and 212(d)(5)(A)

38. [^] See 8 CFR 235.2.

39. [^] CBP generally issues a Notice to Appear 30 days after an alien’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP.

40. [^] CBP generally creates either an A-file or T-file to document the deferred inspection.

41. [^] See legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under INA 245).

42. [^] See INA 212(d)(5).

43. [^] See INA 212(d)(5).

44. [^] Only parole under INA 212(d)(5)(A) meets this requirement.

45. [^] See INA 235(a)

46. [^] See legacy INS General Counsel Opinion 98-10, 1998 WL 1806685. 

47. [^] As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See 8 CFR 103.2(b)(1)

48. [^] For example, parole does not erase any periods of prior unlawful status. Therefore, an alien who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to INA 245(c)(2) or INA 245(c)(8).

49. [^] See INA 245(c)(2). See Chapter 4, Status and Nonimmigrant Visa Violations - INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4].

50. [^] See INA 236(a)(2)(B). Neither the statute nor regulations deem a release on conditional parole equal to a parole under INA 212(d)(5)(A). Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. See Ortega-Cervantes v. Gonzales (PDF), 501 F.3d 1111 (9th Cir. 2007). See Matter of Castillo-Padilla (PDF), 25 I&N Dec. 257 (BIA 2010). See Delgado-Sobalvarro v. Atty. Gen. (PDF), 625 F.3d 782 (3rd Cir. 2010). See Cruz Miguel v. Holder, 650 F.3d 189 (2nd Cir. 2011). 

51. [^] See Authorization for Parole of an Alien into the United States (Form I-512 or I-512L).

52. [^] See 8 CFR 235.1(h)(2). If an alien was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the alien may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the CBP Web site

53. [^] See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (PDF) (May 8, 2008).

54. [^] See INA 235(a)(1).

55. [^] See INA 244. See 8 CFR 244.

56. [^] The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if an alien granted TPS status entered the United States without inspection. See Flores v. USCIS (PDF), 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee.

57. [^] Under INA 245(a) or any other adjustment program.

58. [^] See legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See legacy INS General Counsel Opinion 93-59, 1993 WL 1504006. See Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011). 

59. [^] See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, Pub. L. 102-232 (PDF), 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-546 (September 30, 1996).

60. [^] See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].

61. [^] Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under INA 245(a)

62. [^] The grant of asylum is not an admission contemplated under INA 101(a)(13)(A). See Matter of V-X-, (PDF) 26 I&N Dec. 147 (BIA 2013). See legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892. 

63. [^] See Matter of Quilantan (PDF), 25 I&N Dec. 285, 291-92 (BIA 2010). See Matter of Areguillin (PDF), 17 I&N Dec. 308 (BIA 1980). See 8 CFR 103.2(b).

64. [^] Any documentary evidence of admission should be consistent with entry information provided in the adjustment application or in oral testimony and should not contradict any other admission or departure evidence in DHS records. For example, when there is no Arrival/Departure Record or passport with an admission stamp, an officer may rely on information in DHS records, information in the applicant’s file, and the applicant’s testimony to make a determination on whether the applicant was inspected and admitted or inspected and paroled into the United States. 

65. [^] See 8 CFR 103.2(b). See Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion [7 USCIS-PM A.10].

66. [^] For more information, see Subsection 2, Admission [7 USCIS-PM B.2(A)(2)].

67. [^] See 8 CFR 103.2(a) and 8 CFR 103.2(b). See 8 CFR 103.2(a)(2). See 8 CFR 103.7(b) and