§103.1 8 CFR Ch. I (1–1–97 Edition) · 103.11 Business information. ... review and integration of the ... under §247.12(b) of this chapter; (O) Applications to preserve resi-

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8 CFR Ch. I (1–1–97 Edition)§ 103.1

organization or maintaining the quali-fying family relationship with the G–4international organization officer oremployee. Maintaining status as an Nnonimmigrant for this purpose requiresthe qualifying family relationship toremain in effect. Unauthorized employ-ment will not remove an otherwise eli-gible alien from G–4 status for resi-dence and physical presence require-ments, provided the qualifying G–4 sta-tus is maintained.

[54 FR 5927, Feb. 7, 1989]

PART 103—POWERS AND DUTIES OFSERVICE OFFICERS; AVAILABILITYOF SERVICE RECORDS

Sec.103.1 Delegations of authority.103.2 Applications, petitions, and other doc-

uments.103.3 Denials, appeals, and precedent deci-

sions.103.4 Certifications.103.5 Reopening or reconsideration.103.5a Service of notification, decisions, and

other papers by the Service.103.5b Application for further action on an

approved application or petition.103.6 Surety bonds.103.7 Fees.103.8 Definitions pertaining to availability

of information under the Freedom of In-formation Act.

103.9 Availability of decisions and interpre-tive material under the Freedom of In-formation Act.

103.10 Requests for records under the Free-dom of Information Act.

103.11 Business information.103.12 Definition of the term ‘‘lawfully

present’’ aliens for purposes of applyingfor Title II Social Security benefitsunder Public Law 104–193.

103.20 Purpose and scope.103.21 Access by individuals to records

maintained about them.103.22 Records exempt in whole or in part.103.23 Special access procedures.103.24 Requests for accounting of record dis-

closure.103.25 Notice of access decisions; time lim-

its.103.26 Fees for copies of records.103.27 Appeals from denials of access.103.28 Requests for correction of records.103.29 Records not subject to correction.103.30 Accounting for disclosures.103.31 Notices of subpoenas and emergency

disclosures.103.32 Information forms.103.33 Contracting record systems.

103.34 Security of records systems.103.35 Use and collection of Social Security

numbers.103.36 Employee standards of conduct with

regard to privacy.

AUTHORITY: 5 U.S.C. 552, 552(a); 8 U.S.C.1101, 1103, 1201, 1252 note, 1252b, 1304, 1356; 31U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3CFR, 1982 Comp., p. 166; 8 CFR part 2.

SOURCE: 40 FR 44481, Sept. 26, 1975, unlessotherwise noted.

§ 103.1 Delegations of authority.(a) Deputy Commissioner. Without di-

vesting the Commissioner of any of thepowers, duties, and privileges delegatedby the Attorney General, coextensiveauthority is delegated to the DeputyCommissioner. The Deputy Commis-sioner is delegated responsibility forproviding overall supervision and di-rection to the four Executive AssociateCommissioners of the Service.

(b) General Counsel—(1) General.Under the direction and supervision ofthe Commissioner, the General Counselis delegated the authority to carry outthe duties of the chief legal officer forthe Service, and is assisted by the dep-uty general counsel(s) and staff. TheGeneral Counsel advises the Commis-sioner, the Deputy Commissioner, andstaff on legal matters; prepares legisla-tive reports; and assists in litigation.The General Counsel is delegated theauthority to oversee the professionalactivities of all Service attorneys as-signed to field offices and to make rec-ommendations to the Department ofJustice on all personnel matters in-volving Service attorneys, includingattorney discipline which requires finalaction or approval by the Deputy At-torney General or other designated De-partment of Justice official. The Gen-eral Counsel is delegated authority toperform the functions conferred uponthe Commissioner with respect to pro-duction or disclosure of material inFederal and state proceedings as pro-vided in 28 CFR 16.24(a).

(2) Regional Counsel. In addition toother legal activities performed underthe direction and supervision of theGeneral Counsel, Regional Counsel aredelegated authority within their re-spective regional areas, concurrentwith that of the General Counsel, toperform the functions conferred upon

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53

Immigration and Naturalization Service, Justice § 103.1

the Commissioner with respect to pro-duction or disclosure of material inFederal and state proceedings as pro-vided in 28 CFR 16.24(a).

(c) Director of Congressional Relations.Under the direction and supervision ofthe Commissioner, the Director of Con-gressional Relations is delegated au-thority to respond to Congressional in-quiries and advise the Commissionerand staff concerning legislative mat-ters of the Service.

(d) Director of Public Affairs. Underthe direction and supervision of theCommissioner, the Director of PublicAffairs is delegated authority to directand coordinate public affairs policy,public information, news releases, pub-lic liaison, and outreach; to advancepublic affairs and Service initiativessuch as naturalization and employereducation; and to produce informationproducts.

(e) Director of Internal Audit. Underthe direction and supervision of theCommissioner, the Director of the Of-fice of Internal Audit is delegated au-thority to plan, direct, and coordinatethe Service’s internal audit programand compliance review program; to ini-tiate and to conduct or direct the con-duct of investigations of alleged mis-management by Service employees; toinitiate and to conduct or direct theconduct of investigations of allegedmisconduct by Service employees, sub-ject to agreements with the Depart-ment’s Office of Professional Respon-sibility and Office of Inspector General(OIG); to exercise those powers and au-thorities necessary to investigate mat-ters which are material and relevant tothe administration of the Service, in-cluding the power and authority to ad-minister oaths and to take and con-sider evidence; to collect informationconcerning the efficiency and effective-ness of Service operations and pro-grams and Service systems to elimi-nate fraud, waste, and abuse in theworkplace; and to act as the Service’sliaison with outside audit/inspectionagencies.

(f) Executive Associate Commissioner forPrograms—(1) General. Under the direc-tion and supervision of the DeputyCommissioner, the Executive AssociateCommissioner for Programs is dele-gated authority for policy develop-

ment, review and integration of theService’s enforcement and examina-tions programs, and for providing gen-eral direction to, and supervision of,the Associate Commissioners for En-forcement and Examinations.

(2) Associate Commissioner for Enforce-ment—(i) General. Under the directionand supervision of the Executive Asso-ciate Commissioner for Programs, theAssociate Commissioner for Enforce-ment is delegated authority and re-sponsibility for program and policyplanning, development, coordination,evaluation, and staff direction to theBorder Patrol, Investigations, Deten-tion and Deportation, Intelligence, andAsset Forfeiture programs, and to im-pose administrative fines, penalties,and forfeitures under sections 274, 274Aand 274C of the Act. The AssociateCommissioner for Enforcement is re-sponsible for providing general direc-tion and supervision to the:

(A) Assistant Commissioner for BorderPatrol;

(B) Assistant Commissioner for Inves-tigations;

(C) Assistant Commissioner for Deten-tion and Deportation;

(D) Assistant Commissioner for Intel-ligence; and

(E) Director of Asset Forfeiture.(ii) Director of Asset Forfeiture. Under

the direction and supervision of the As-sociate Commissioner for Enforcement,the Director of Asset Forfeiture is dele-gated the authority to direct and co-ordinate the Service program undersection 274(b) of the Act which providesfor the seizure and forfeiture of convey-ances used in violation of section 274(a)of the Act.

(3) Associate Commissioner for Exami-nations. (i) General. Under the directionand supervision of the Executive Asso-ciate Commissioner for Programs, theAssociate Commissioner for Examina-tions is delegated authority and re-sponsibility for program and policyplanning, development, coordination,evaluation, and staff direction to theAdjudications and Nationality, Inspec-tions, Administrative Appeals, ServiceCenter Operations, and Records pro-grams, and to direct and supervise the:(A) Assistant Commissioner for Adju-

dications and Nationality;


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8 CFR Ch. I (1–1–97 Edition)§ 103.1

(B) Assistant Commissioner for Inspec-tions;

(C) Assistant Commissioner for ServiceCenter Operations;

(D) Assistant Commissioner forRecords; and

(E) Director of Administrative Appeals.(ii) Administrative Fines. The Associ-

ate Commissioner for Examinations isdelegated the authority to impose ad-ministrative fines under provisions ofthe Act in any case which is transmit-ted to the National Fines Office by adistrict director.

(iii) Appellate Authorities. In addition,the Associate Commissioner for Exami-nations exercises appellate jurisdictionover decisions on;

(A) Breaching of bonds under§ 103.6(e);

(B) Petitions for immigrant visa clas-sification based on employment or as aspecial immigrant or entrepreneurunder §§ 204.5 and 204.6 of this chapterexcept when the denial of the petitionis based upon lack of a certification bythe Secretary of Labor under section212(a)(5)(A) of the Act;

(C) Indochinese refugee applicationsfor adjustment of status under section103 of the Act of October 28, 1977;

(D) Revoking approval of certain pe-titions under § 205.2 of this chapter.;

(E) Applications for permission to re-apply for admission to the UnitedStates after deportation or removalunder § 212.2 of this chapter;

(F) Applications for waiver of certaingrounds of excludability under § 212.7(a)of this chapter;

(G) Applications for waiver of thetwo-year foreign residence requirementunder § 212.7(c) of this chapter;

(H) Petitions for approval of schoolsunder § 214.3 of this chapter;

(I) Decisions of district directors re-garding withdrawal of approval ofschools for attendance by foreign stu-dents under § 214.4 of this chapter;

(J) Petitions for temporary workersor trainees and fiancees or fiances ofU.S. citizens under §§ 214.2 and 214.6 ofthis chapter;

(K) Applications for issuance of re-entry permits under 8 CFR part 223;

(L) Applications for refugee traveldocuments under 8 CFR part 223;

(M) Applications for benefits of sec-tion 13 of the Act of September 11, 1957,

as amended, under § 245.3 of this chap-ter;

(N) Adjustment of status of certainresident aliens to nonimmigrantsunder § 247.12(b) of this chapter;

(O) Applications to preserve resi-dence for naturalization purposesunder § 316a.21(c) of this chapter;

(P) Applications for certificates ofcitizenship under § 341.6 of this chapter;

(Q) Administration cancellation ofcertificates, documents, and recordsunder § 342.8 of this chapter;

(R) Applications for certificates ofnaturalization or repatriation under§ 343.1 of this chapter;

(S) Applications for new naturaliza-tion or citizenship papers under§ 343a.1(c) of this chapter;

(T) Applications for special certifi-cates of naturalization under§ 343b.11(b) of this chapter;

(U) Applications by organizations tobe listed on the Service listing of freelegal services program and removaltherefrom under Part 292a of this chap-ter;

(V) Petitions to classify Amerasiansunder Public Law 97–359 as the childrenof United States citizens;

(W) Revoking approval of certain pe-titions, as provided in §§ 214.2 and 214.6of this chapter;

(X) Orphan petitions under 8 CFR204.3;

(Y) Applications for advance processof orphan petitions under 8 CFR 204.3;

(Z) Invalidation of a temporary laborcertification issued by the governor ofGuam under § 214.2(h)(3)(v) of this chap-ter;

(AA) Application for status as tem-porary or permanent resident under§§ 245a.2 or 245a.3 of this chapter;

(BB) Application for status as tem-porary resident under § 210.2 of thischapter;

(CC) Termination of status as tem-porary resident under § 210.4 of thischapter;

(DD) Termination of status as tem-porary resident under § 245a.2 of thischapter;

(EE) Application for waiver ofgrounds of excludability under Parts210, 210a, and 245a of this chapter;


55


(FF) Application for status of certainCuban and Haitian nationals under sec-tion 202 of the Immigration Reform andControl Act of 1986;

(GG) A self-petition filed by a spouseor child based on the relationship to anabusive citizen or lawful permanentresident of the United States for classi-fication under section 201(b)(2)(A)(i) ofthe Act or section 203(a)(2)(A) of theAct;

(HH) Application for Temporary Pro-tected Status under part 240 of thischapter;

(II) Petitions for special immigrantjuveniles under part 204 of this chapter;

(JJ) Applications for adjustment ofstatus under part 245 of this title whendenied solely because the applicantfailed to establish eligibility for thebona fide marriage exemption con-tained in section 245(e) of the Act;

(KK) Petition for Armed Forces Spe-cial Immigrant under § 204.9 of thischapter;

(LL) Request for participation as aregional center under § 204.6(m) of thischapter;

(MM) Termination of participation ofregional center under § 204.6(m) of thischapter; and

(NN) Application for certification fordesignated fingerprinting servicesunder § 103.2(e) of this chapter.

(iv) Director of the National Fines Of-fice. Under the direction of the Assist-ant Commissioner for Inspections, theDirector of the National Fines Officehas program, administrative, and su-pervisory responsibility for all person-nel assigned to the National Fines Of-fice. The Director of the National FinesOffice is delegated the authority by theAssociate Commissioner for Examina-tions to impose fines, penalties, andliquidated damages under sections 214,231, 233, 237, 238, 239, 243, 251, 252, 253,254, 255, 256, 257, 258, 271, 272, 273 and274C of the Act.

(v) Service Center directors. Under thedirection and supervision of the Assist-ant Commissioner for Service CenterOperations, the service center directorsare delegated the authority to controlall activities conducted within their of-fices and supervisory responsibility forall personnel assigned to their offices.Center directors are delegated the au-thority to grant or deny any applica-

tion or petition submitted to the Serv-ice, except for matters delegated toasylum officers pursuant to part 208and § 253.1(f) of this chapter, or exclu-sively delegated to district directors.

(g) Executive Associate Commissionerfor Field Operations—(1) General. Underthe direction and supervision of theDeputy Commissioner, the ExecutiveAssociate Commissioner for Field Op-erations is delegated authority and re-sponsibility for implementing policiesof the Service’s field operations, andfor providing general direction to andsupervision of the regional directorsand the Director of International Af-fairs.

(2) Regional directors—(i) General.Under the direction and supervision ofthe Executive Associate Commissionerfor Field Operations, the regional di-rectors are delegated authority and re-sponsibility for the Service’s field oper-ations within their respective geo-graphical areas, and for providing di-rection to and supervision of the dis-trict directors and chief patrol agentswithin their respective regions.

(ii) District directors. (A) District di-rectors of offices located within theUnited States are under the directionand supervision of the regional direc-tor. District directors of foreign officesare under the direction and supervisionof the Director of International Affairs.District directors are delegated author-ity to control all activities conductedwithin their offices and to supervise allpersonnel, except Service attorneys,assigned to their offices.

(B) District directors are delegatedthe authority to grant or deny any ap-plication or petition submitted to theService, except for matters delegatedto asylum officers pursuant to part 208and § 253.1(f) of this chapter, or exclu-sively delegated to service center di-rectors, to initiate any authorized pro-ceeding in their respective districts,and to exercise the authorities under§§ 242.1(a), 242.2(a) and 242.7 of thischapter without regard to geographicallimitations. District directors are dele-gated authority to conduct the pro-ceeding provided for in § 252.2 of thischapter.

(C) Applications filed for special agri-cultural worker or legalization statuspursuant to sections 210 and 245a of the


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8 CFR Ch. I (1–1–97 Edition)§ 103.1

Act, respectively, may be approved bythe district director having jurisdic-tion of the office where a second inter-view is required by the service center,if the alien in the second interview canestablish eligibility for approval. Dis-trict directors may deny applicationsfor special agricultural worker or le-galization status at offices under theirjurisdiction.

(D) Officers in charge—(1) General.Under the direction and supervision ofthe district director, officers in chargeare delegated authority to control allactivities conducted within their of-fices and to supervise all personnel as-signed to their office. Officers incharge direct inspection activities atports-of-entry and the authorization ofextensions of nonimmigrant admissionperiods and of voluntary departureprior to the commencement of deporta-tion hearings. The Officers in charge inthe places enumerated in § 212.1(i) ofthis chapter are delegated the author-ity to act on requests for waiver of visaand passport requirements under theprovisions of section 212(d)(4)(A) of theAct.

(2) The offices located inOranjestaad, Aruba; Calgary, Alberta,Canada; Edmonton, Alberta, Canada;Freeport, Bahamas; Hamilton, Ber-muda; Nassau, Bahamas; Shannon, Ire-land; Toronto, Ontario, Canada; Van-couver, British Columbia, Canada; Vic-toria, British Columbia, Canada; Win-nipeg, Manitoba, Canada; Dublin, Ire-land; and such other preinspection orpreclearance sites as the Service mayestablish in the future, are delegatedauthority to perform the function ofpreinspection of passengers and crewson aircraft and surface vessels, as ap-propriate, which are departing directlyto the United States mainland.

(3) The Officer in charge of the officein Montreal, Canada, is authorized toperform preinspection of passengersand crew of aircraft departing directlyto the United States mainland and toauthorize or deny waivers of grounds ofexcludability under section 212 (h) and(i) of the Act; also, to approve or denyapplications for permission to reapplyfor admission to the United Statesafter deportation or removal, whenfiled in conjunction with an applica-tion for waiver of grounds of exclud-

ability under section 212 (h) or (i) ofthe Act.

(iii) Chief patrol agents. Under the di-rection and supervision of a regionaldirector, chief patrol agents are dele-gated authority to direct the BorderPatrol activities of the Service withintheir respective sectors, including ex-ercising the authority in section 242(b)of the Act to permit aliens to departvoluntarily from the United Statesprior to commencement of a hearing.

(3) Director of International Affairs—(i)General. Under the direction and super-vision of the Executive Associate Com-missioner for Field Operations, the Di-rector of International Affairs is dele-gated authority to direct and supervisethe foreign office district directors, tomaintain the integrity and efficiencyof the Service’s international oper-ations, and to administer programs re-lated to refugee, asylum, and parolebenefits. The Director of InternationalAffairs is also responsible for the direc-tion and supervision of overseaspreinspection at sites, if any, for whichthe Commissioner has specifically dele-gated inspection authority to the Of-fice of International Affairs. The Direc-tor serves as the principal liaison withforeign governments and other agen-cies of the United States in overseas lo-cations.

(ii) Asylum Officers. Asylum officersserve under the supervision and direc-tion of the Director of InternationalAffairs, and shall be specially trainedas required in § 208.1(b) of this chapter.Asylum officers are delegated the au-thority to hear and adjudicate applica-tions for asylum and for withholding ofdeportation, as provided under part 208and § 253.1(f) of this chapter.

(iii) Officer in Charge. The officers incharge of the offices located at Athens,Greece; Mexico City, Mexico; CiudadJuarez, Mexico; Rome, Italy; Frank-furt, Germany; Moscow, Russia; Vi-enna, Austria; Tegucigalpa, Honduras;Bangkok, Thailand; Hong Kong, BCC;London, England; Manila, Philippines;Monterrey, Mexico; Nairobi, Kenya;New Delhi, India; Seoul, Korea; Singa-pore, Republic of Singapore; Tijuana,Mexico; Port-au-Prince, Haiti; Karachi,Pakistan; and such other overseas sub-offices as the Service may establish in


57


the future, are delegated authority toperform the following functions:

(A) Authorize waivers of grounds ofexcludability under sections 212 (h) and(i) of the Act;

(B) Adjudicate applications for per-mission to reapply for admission to theUnited States after deportation or re-moval, if filed by an applicant for animmigrant visa in conjunction with anapplication for waiver of grounds of ex-cludability under section 212 (h) or (i)of the Act, or if filed by an applicantfor a nonimmigrant visa under section101(a)(15)(K) of the Act;

(C) Approve or deny visa petitions forany relative;

(D) Approve recommendations madeby consular officers for waiver ofgrounds of excludability in behalf ofnonimmigrant visa applicants undersection 212(d)(3) of the Act and concurin proposed waivers by consular offi-cers of the requirement of visa or pass-port by a nonimmigrant on the basis ofunforeseen emergency in cases inwhich the Department of State had del-egated recommending power to theconsular officers;

(E) Exercise discretion to grant ordeny applications for the benefits setforth in sections 211 and 212(c) of theAct;

(F) Process Form I–90 applicationsand deliver duplicate Forms I–551;

(G) Process Form N–565 applicationsand deliver certificates issued there-under; and

(H) Grant or deny applications ofaliens seeking classification as refu-gees under section 207 of the Act.

(h) Executive Associate Commissionerfor Policy and Planning. Under the di-rection and supervision of the DeputyCommissioner, the Executive AssociateCommissioner for Policy and Planningis delegated the authority to overseethe development and coordination oflong-range planning activities, and pol-icy formulation, codification, and dis-semination within the Agency. The Ex-ecutive Associate Commissioner is alsoresponsible for informing and advisingthe Commissioner and the DeputyCommissioner on other issues whichcross program lines or bear inter-agen-cy implications. The Executive Associ-ate Commissioner also serves as liaisonwith, and representative of, the Service

to other organizations engaged in pol-icy development in matters affectingthe mission of the Service, researchand statistics, and the exchange of sta-tistical, scientific, technological dataand research.

(i) Executive Associate Commissioner forManagement—(1) General. Under the di-rection and supervision of the DeputyCommissioner, the Executive AssociateCommissioner for Management is dele-gated authority to plan, direct, andmanage all aspects of the administra-tion of the Service. The delegation in-cludes the authority to develop andpromulgate administrative policies andprograms for all financial, human re-source, administrative, and informa-tion resource matters of the Service.The Executive Associate Commissionerfor Management is delegated the au-thority to settle tort claims of $25,000or less than 28 U.S.C. 2672, and to com-promise, suspend, or terminate collec-tion of claims of the United States notexceeding $100,000 (exclusive of inter-est) under 31 U.S.C. 3711. The ExecutiveAssociate Commissioner for Manage-ment supervises the Directors of Secu-rity, Equal Employment Opportunity,and Files and Forms Management, theAssociate Commissioner for Human Re-sources and Administration, the Asso-ciate Commissioner for Finance, theAssociate Commissioner for Informa-tion Resources Management, and theDirectors, Administrative Centers.

(2) Director of Security. Under the di-rection and supervision of the Execu-tive Associate Commissioner for Man-agement, the Director of the Office ofSecurity is delegated authority to de-velop policy, plan, direct, and coordi-nate the Service’s security program.The Security program includes the ap-plication of safeguards in programareas of personnel security, physicalsecurity, information and document se-curity, automated data processing andtelecommunications security, and con-tingency planning related to threat,loss, or other serious emergency in anyof these areas.

(3) Director of Equal Employment Op-portunity. Under the direction and su-pervision of the Executive Associate


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8 CFR Ch. I (1–1–97 Edition)§ 103.1

Commissioner for Management, the Di-rector of Equal Employment Oppor-tunity is delegated authority to de-velop policies and to implement and di-rect the Service’s programs relating toequal employment opportunity for allemployees and applicants. The Directoris responsible for the Service’s effortsto comply with provisions of the CivilRights Act of 1964 and Department ofJustice programs and directives affect-ing discrimination in employment. TheDirector supervises, coordinates, di-rects, and evaluates the affirmativeemployment and discrimination com-plaint program of the Service.

(4) Director of Files and Forms Manage-ment. Under the direction and super-vision of the Executive Associate Com-missioner for Management, the Direc-tor of Files and Forms Management isdelegated authority to develop policies,plan, coordinate, evaluate, counsel, anddirect the Service’s National RecordsCenter, Forms Center, SAVE Program,centralized FOIA/PA, records policy,and correspondence files programs.

(5) Associate Commissioner for HumanResources and Administration. Under thedirection and supervision of the Execu-tive Associate Commissioner for Man-agement, the Associate Commissionerfor Human Resources and Administra-tion is delegated authority to developpolicies, plan, develop, coordinate,evaluate, counsel, and direct the per-sonnel, career development, contract-ing, engineering, facility, and adminis-trative programs of the Service. TheAssociate Commissioner for Human Re-sources and Administration providesdirection to, and supervision of, the:

(i) Assistant Commissioner forHuman Resources and Development;and

(ii) Assistant Commissioner for Ad-ministration.

(6) Associate Commissioner for Finance.Under the direction and supervision ofthe Executive Associate Commissionerfor Management, the Associate Com-missioner for Finance is delegated au-thority to develop policies, plan, de-velop, coordinate, evaluate, counsel,and direct the Service’s resource re-quirements and utilization. The Associ-ate Commissioner for Finance is re-sponsible for all aspects of financialmanagement, including budgeting, re-

porting, internal controls, and analy-sis. The Associate Commissioner forFinance is responsible for the presen-tation of internal reports to manage-ment, the preparation of external re-ports and certifications required bystatute or regulation, and the represen-tation of the Service before the Con-gress, and agencies of the ExecutiveBranch on matters related to financialactivities. The Associate Commissionerfor Finance is also delegated authorityto settle claims of $10,000 or less under28 U.S.C. 2672 and to compromise, sus-pend, or terminate collection of claimsof the United States not exceeding$50,000 (exclusive of interest) under 31U.S.C. 3711. The Associate Commis-sioner for Finance provides directionto, and supervision of, the:

(i) Associate Commissioner for Budg-et; and (ii) Assistant Commissioner forFinancial Management.

(7) Associate Commissioner for Informa-tion Resources Management. Under thedirection and supervision of the Execu-tive Associate Commissioner for Man-agement, the Associate Commissionerfor Information Resources Manage-ment is delegated authority to developpolicies, plan, develop, coordinate,evaluate, counsel, manage and directthe Service’s Automated Data Process-ing, Telecommunication, Radio, andElectronic programs. The AssociateCommissioner for Information Re-sources Management provides directionto, and supervision of, the:

(i) Assistant Commissioner for DataSystems; and

(ii) Assistant Commissioner for Sys-tems Integration.

(8) Directors of Administrative Centers.Under the direction and supervision ofthe Executive Associate Commissionerfor Management, the directors are del-egated authority over the human re-sources, administrative, informationresource, security, and financial activi-ties of the Service within their respec-tive area of responsibility. They arealso delegated the authority to: (i) Set-tle tort claims of $10,000 or less under28 U.S.C. 2672; and

(ii) Compromise, suspend, or termi-nate collection of claims of the UnitedStates not exceeding $50,000 (exclusiveof interest) under 31 U.S.C. 3711.


59


(j) Immigration Officer. Any immigra-tion officer, immigration inspector,immigration examiner, adjudicationsofficers, Border Patrol agent, aircraftpilot, airplane pilot, helicopter pilot,deportation officer, detention enforce-ment officer, detention guard, inves-tigator, special agent, investigative as-sistant, intelligence officer, intel-ligence agent, general attorney, appli-cations adjudicator, contact represent-ative, chief legalization officer, super-visory legalization officer, legalizationadjudicator, legalization officer and le-galization assistant, forensic documentanalyst, fingerprint specialist, immi-gration information officer, immigra-tion agent (investigations), asylum of-ficer, or senior or supervisory officer ofsuch employees is hereby designated asan immigration officer authorized toexercise the powers and duties of suchofficer as specified by the Act and thischapter.

[59 FR 60070, Nov. 22, 1994, as amended at 61FR 13072, Mar. 26, 1996; 61 FR 28010, June 4,1996]

§ 103.2 Applications, petitions, andother documents.

(a) Filing. (1) General. Every applica-tion, petition, appeal, motion, request,or other document submitted on theform prescribed by this chapter shallbe executed and filed in accordancewith the instructions on the form, suchinstructions, which include where anapplication or petition should be filed,being hereby incorporated into the par-ticular section of the regulations re-quiring its submission. The form mustbe filed with the appropriate filing feerequired by § 103.7. Such fees are non-refundable and, except as otherwiseprovided in this chapter, must be paidwhen the application or petition isfiled.

(2) Signature. An applicant or peti-tioner must sign his or her applicationor petition. However, a parent or legalguardian may sign for a person who isless than 14 years old. A legal guardianmay sign for a mentally incompetentperson. By signing the application orpetition, the applicant or petitioner, orparent or guardian certifies under pen-alty of perjury that the application orpetition, and all evidence submitted

with it, either at the time of filing orthereafter, is true and correct.

(3) Representation. An applicant or pe-titioner may be represented by an at-torney in the United States, as definedin § 1.1(f) of this chapter, by an attor-ney outside the United States as de-fined in § 292.1(a)(6) of this chapter, orby an accredited representative as de-fined in § 292.1(a)(4) of this chapter. Abeneficiary of a petition is not a recog-nized party in such a proceeding. Anapplication or petition presented inperson by someone who is not the ap-plicant or petitioner, or his or her rep-resentative as defined in this para-graph, shall be treated as if receivedthrough the mail, and the person ad-vised that the applicant or petitioner,and his or her representative, will benotified of the decision. Where a noticeof representation is submitted that isnot properly signed, the application orpetition will be processed as if the no-tice had not been submitted.

(4) Oath. Any required oath may beadministered by an immigration officeror person generally authorized to ad-minister oaths, including persons soauthorized by Article 136 of the Uni-form Code of Military Justice.

(5) Translation of name. If a documenthas been executed in an anglicized ver-sion of a name, the native form of thename may also be required.

(6) Where to file. Except as otherwiseprovided in this chapter, an applicationor petition should be filed with the INSoffice or Service Center with jurisdic-tion over the application or petitionand the place of residence of the appli-cant or petitioner as indicated in theinstructions with the respective form.

(7) Receipt date. (i) General. An appli-cation or petition received in a Serviceoffice shall be stamped to show thetime and date of actual receipt and, un-less otherwise specified in part 204 orpart 245 of this chapter, shall be re-garded as filed when so stamped, if it isproperly signed and executed and therequired fee is attached or a fee waiveris granted. An application which is notproperly signed or is submitted withthe wrong fee shall be rejected as im-properly filed. Rejected applications,and ones in which the check or otherfinancial instrument is returned as notpayable, will not retain a filing date.


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8 CFR Ch. I (1–1–97 Edition)§ 103.2

An application or petition taken to alocal Service office for the completionof biometric information prior to filingat a Service Center shall be consideredreceived when physically received atthe appropriate Service Center.

(ii) Non-payment. If a check or otherfinancial instrument used to pay a fil-ing fee is subsequently returned as notpayable, the remitter shall be notifiedand requested to immediately pay thefiling fee and associated service chargewithin 14 days, without extension. Ifthe application or petition is pendingand these charges are not paid, it shallbe rejected as improperly filed. If itwas already approved, and thesecharges are not paid, it shall be auto-matically revoked because it was im-properly filed. If it was already denied,revoked, or abandoned, that decisionwill not be affected by the non-pay-ment of the filing fee. A new fee will berequired with any new application orpetition. Any fee and service chargescollected as the result of collection ac-tivities or legal action on the prior ap-plication or petition shall be used tocover the cost of the previous rejec-tion, revocation, or other action.

(b) Evidence and processing. (1) Gen-eral. An applicant or petitioner mustestablish eligibility for a requested im-migration benefit. An application orpetition form must be completed as ap-plicable and filed with any initial evi-dence required by regulation or by theinstructions on the form. Any evidencesubmitted is considered part of the re-lating application or petition.

(2) Submitting secondary evidence andaffidavits. (i) General. The non-exist-ence or other unavailability of requiredevidence creates a presumption of in-eligibility. If a required document,such as a birth or marriage certificate,does not exist or cannot be obtained,an applicant or petitioner must dem-onstrate this and submit secondaryevidence, such as church or schoolrecords, pertinent to the facts at issue.If secondary evidence also does notexist or cannot be obtained, the appli-cant or petitioner must demonstratethe unavailability of both the requireddocument and relevant secondary evi-dence, and submit two or more affida-vits, sworn to or affirmed by personswho are not parties to the petition who

have direct personal knowledge of theevent and circumstances. Secondaryevidence must overcome the unavail-ability of primary evidence, and affida-vits must overcome the unavailabilityof both primary and secondary evi-dence.

(ii) Demonstrating that a record is notavailable. Where a record does notexist, the applicant or petitioner mustsubmit an original written statementon government letterhead establishingthis from the relevant government orother authority. The statement mustindicate the reason the record does notexist, and indicate whether similarrecords for the time and place areavailable. However, a certificationfrom an appropriate foreign govern-ment that a document does not exist isnot required where the Department ofState’s Foreign Affairs Manual indi-cates this type of document generallydoes not exist. An applicant or peti-tioner who has not been able to acquirethe necessary document or statementfrom the relevant foreign authoritymay submit evidence that repeatedgood faith attempts were made to ob-tain the required document or state-ment. However, where the Service findsthat such documents or statements aregenerally available, it may requirethat the applicant or petitioner submitthe required document or statement.

(iii) Evidence provided with a self-peti-tion filed by a spouse or child of abusivecitizen or resident. The Service will con-sider any credible evidence relevant toa self-petition filed by a qualifiedspouse or child of an abusive citizen orlawful permanent resident under sec-tion 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of theAct. The self-petitioner may, but is notrequired to, demonstrate that preferredprimary or secondary evidence is un-available. The determination of whatevidence is credible and the weight tobe given that evidence shall be withinthe sole discretion of the Service.

(3) Translations. Any document con-taining foreign language submitted tothe Service shall be accompanied by afull English language translationwhich the translator has certified ascomplete and accurate, and by thetranslator’s certification that he or she


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is competent to translate from the for-eign language into English.

(4) Submitting copies of documents. Ap-plication and petition forms must besubmitted in the original. Forms anddocuments issued to support an appli-cation or petition, such as labor certifi-cations, Form IAP–66, medical exami-nations, affidavits, formal consulta-tions, and other statements, must besubmitted in the original unless pre-viously filed with the Service. Whensubmission is required, expired Servicedocuments must be submitted in theoriginal, as must Service documentsrequired to be annotated to indicatethe decision. In all other instances, un-less the relevant regulations or in-structions specifically require that anoriginal document be filed with an ap-plication or petition, an ordinary leg-ible photocopy may be submitted.Original documents submitted whennot required will remain a part of therecord, even if the submission was notrequired.

(5) Request for an original document.Where a copy of a document is submit-ted with an application or petition, theService may at any time require thatthe original document be submitted forreview. If the requested original, otherthan one issued by the Service, is notsubmitted within 12 weeks, the petitionor application shall be denied or re-voked. There shall be no appeal from adenial or revocation based on the fail-ure to submit an original documentupon the request of the Service to sub-stantiate a previously submitted copy.Further, an applicant or petitionermay not move to reopen or reconsiderthe proceeding based on the subsequentavailability of the document. An origi-nal document submitted pursuant to aService request shall be returned to thepetitioner or applicant when no longerrequired.

(6) Withdrawal. An applicant or peti-tioner may withdraw an application orpetition at any time until a decision isissued by the Service or, in the case ofan approved petition, until the personis admitted or granted adjustment orchange of status, based on the petition.However, a withdrawal may not be re-tracted.

(7) Testimony. The Service may re-quire the taking of testimony, and may

direct any necessary investigation.When a statement is taken from andsigned by a person, he or she shall,upon request, be given a copy withoutfee. Any allegations made subsequentto filing an application or petitionwhich are in addition to, or in substi-tution for, those originally made, shallbe filed in the same manner as theoriginal application, petition, or docu-ment, and acknowledged under oaththereon.

(8) Request for evidence. If there is evi-dence of ineligibility in the record, anapplication or petition shall be deniedon that basis notwithstanding any lackof required initial evidence. If the ap-plication or petition was pre-screenedby the Service prior to filing and wasfiled even though the applicant or peti-tioner was informed that the requiredinitial evidence was missing, the appli-cation or petition shall be denied forfailure to contain the necessary evi-dence. Except as otherwise provided inthis chapter, in other instances wherethere is no evidence of ineligibility,and initial evidence or eligibility infor-mation is missing or the Service findsthat the evidence submitted eitherdoes not fully establish eligibility forthe requested benefit or raises underly-ing questions regarding eligibility, theService shall request the missing ini-tial evidence, and may request addi-tional evidence, including blood tests.In such cases, the applicant or peti-tioner shall be given 12 weeks to re-spond to a request for evidence. Addi-tional time may not be granted. Withinthis period the applicant or petitionermay:

(i) Submit all the requested initial oradditional evidence;

(ii) Submit some or none of the re-quested additional evidence and ask fora decision based on the record; or

(iii) Withdraw the application or pe-tition.

(9) Request for appearance. An appli-cant, a petitioner, and/or a beneficiarymay be required to appear for an inter-view. A petitioner shall also be notifiedwhen an interview notice is mailed orissued to a beneficiary. The person mayappear as requested by the Service or,prior to the date and time of the inter-view:


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8 CFR Ch. I (1–1–97 Edition)§ 103.2

(i) The person to be interviewed may,for good cause, request that the inter-view be rescheduled; or

(ii) The applicant or petitioner maywithdraw the application or petition.

(10) Effect of a request for initial or ad-ditional evidence or for interview resched-uling. (i) Effect on processing. The prior-ity date of a properly filed petitionshall not be affected by a request formissing initial evidence or request forother evidence. If an application or pe-tition is missing required initial evi-dence, or an applicant, petitioner, orbeneficiary requests that an interviewbe rescheduled, any time period im-posed on Service processing will startover from the date of receipt of the re-quired initial evidence or request forinterview rescheduling. If the Servicerequests that the applicant or peti-tioner submit additional evidence orrespond to other than a request for ini-tial evidence, any time limitation im-posed on the Service for processing willbe suspended as of the date of the re-quest. It will resume at the same pointwhere it stopped when the Service re-ceives the requested evidence or re-sponse, or a request for a decisionbased on the evidence submitted.

(ii) Effect on interim benefits. Interimbenefits will not be granted based onan application or petition held in sus-pense for the submission of requestedinitial evidence, except that the appli-cant or beneficiary will normally be al-lowed to remain while an applicationor petition to extend or obtain statuswhile in the United States is pending.The Service may choose to pursueother actions to seek removal of a per-son notwithstanding the pending appli-cation. Employment authorization pre-viously accorded based on the samestatus and employment as that re-quested in the current application orpetition may continue uninterruptedas provided in 8 CFR 274a.12(b)(20) dur-ing the suspense period.

(11) Submission of evidence in responseto a Service request. All evidence sub-mitted in response to a Service requestmust be submitted at one time. Thesubmission of only some of the re-quested evidence will be considered arequest for a decision based on therecord.

(12) Effect where evidence submitted inresponse to a request does not establisheligibility at the time of filing. An appli-cation or petition shall be denied whereevidence submitted in response to a re-quest for initial evidence does not es-tablish filing eligibility at the time theapplication or petition was filed. Anapplication or petition shall be deniedwhere any application or petition uponwhich it was based was filed subse-quently.

(13) Effect of failure to respond to a re-quest for evidence or appearance. If allrequested initial evidence and re-quested additional evidence is not sub-mitted by the required date, the appli-cation or petition shall be consideredabandoned and, accordingly, shall bedenied. Except as provided in § 335.6 ofthis chapter, if a person requested toappear for an interview does not ap-pear, the Service does not receive hisor her request for rescheduling by thedate of the interview, or the applicantor petitioner has not withdrawn the ap-plication or petition, the application orpetition shall be considered abandonedand, accordingly, shall be denied.

(14) Effect of request for decision. Whenan applicant or petitioner does not sub-mit all requested additional evidenceand requests a decision based on theevidence already submitted, a decisionshall be issued based on the record.Failure to submit requested evidencewhich precludes a material line of in-quiry shall be grounds for denying theapplication or petition. Failure to ap-pear for a required interview, or to giverequired testimony, shall result in thedenial of any related application or pe-tition.

(15) Effect of withdrawal or denial dueto abandonment. The Service’s acknowl-edgement of a withdrawal may not beappealed. A denial due to abandonmentmay not be appealed, but an applicantor petitioner may file a motion to re-open under § 103.5. Withdrawal or denialdue to abandonment does not precludethe filing of a new application or peti-tion with a new fee. However, the pri-ority or processing date of a withdrawnor abandoned application or petitionmay not be applied to a later applica-tion petition. Withdrawal or denial dueto abandonment shall not itself affectthe new proceeding; but the facts and


63


circumstances surrounding the priorapplication or petition shall otherwisebe material to the new application orpetition.

(16) Inspection of evidence. An appli-cant or petitioner shall be permitted toinspect the record of proceeding whichconstitutes the basis for the decision,except as provided in the followingparagraphs.

(i) Derogatory information unknown topetitioner or applicant. If the decisionwill be adverse to the applicant or peti-tioner and is based on derogatory infor-mation considered by the Service andof which the applicant or petitioner isunaware, he/she shall be advised of thisfact and offered an opportunity torebut the information and present in-formation in his/her own behalf beforethe decision is rendered, except as pro-vided in paragraphs (b)(16)(ii), (iii), and(iv) of this section. Any explanation,rebuttal, or information presented byor in behalf of the applicant or peti-tioner shall be included in the record ofproceeding.

(ii) Determination of statutory eligi-bility. A determination of statutory eli-gibility shall be based only on informa-tion contained in the record of proceed-ing which is disclosed to the applicantor petitioner, except as provided inparagraph (b)(16)(iv) of this section.

(iii) Discretionary determination.Where an application may be grantedor denied in the exercise of discretion,the decision to exercise discretion fa-vorably or unfavorably may be based inwhole or in part on classified informa-tion not contained in the record andnot made available to the applicant,provided the regional commissionerhas determined that such informationis relevant and is classified under Exec-utive Order No. 12356 (47 FR 14874; April6, 1982) as requiring protection fromunauthorized disclosure in the interestof national security.

(iv) Classified information. An appli-cant or petitioner shall not be providedany information contained in therecord or outside the record which isclassified under Executive Order No.12356 (47 FR 14874; April 6, 1982) as re-quiring protection from unauthorizeddisclosure in the interest of nationalsecurity, unless the classifying author-ity has agreed in writing to such dis-

closure. Whenever he/she believes he/she can do so consistently with safe-guarding both the information and itssource, the regional commissionershould direct that the applicant or pe-titioner be given notice of the generalnature of the information and an op-portunity to offer opposing evidence.The regional commissioner’s author-ization to use such classified informa-tion shall be made a part of the record.A decision based in whole or in part onsuch classified information shall statethat the information is material to thedecision.

(17) Verifying claimed citizenship orpermanent resident status. The status ofan applicant or petitioner who claimsthat he or she is a permanent residentof the United States will be verifiedfrom official records of the Service.The term official records, as used here-in, includes Service files, arrival mani-fests, arrival records, Service indexcards, Immigrant Identification Cards,Certificates of Registry, Declarationsof Intention issued after July 1, 1929,Alien Registration Receipt CardsForms AR–3, AR–103, I–151 or I–551),passports, and reentry permits. To con-stitute an official record a Serviceindex card must bear a designated im-migrant visa symbol and must havebeen prepared by an authorized officialof the Service in the course of process-ing immigrant admissions or adjust-ments to permanent resident status.Other cards, certificates, declarations,permits, and passports must have beenissued or endorsed by the Service toshow admission for permanent resi-dence. Except as otherwise provided in8 CFR part 101, and in the absence ofcountervailing evidence, such officialrecords shall be regarded as establish-ing lawful admission for permanentresidence. If a self-petitioner filingunder section 204(a)(1)(A)(iii),204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or204(a)(1)(B)(iii) of the Act is unable topresent primary or secondary evidenceof the abuser’s status, the Service willattempt to electronically verify theabuser’s citizenship or immigrationstatus from information contained inService computerized records. OtherService records may also be reviewed


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8 CFR Ch. I (1–1–97 Edition)§ 103.2

at the discretion of the adjudicating of-ficer. If the Service is unable to iden-tify a record as relating to the abuser,or the record does not establish theabuser’s immigration or citizenshipstatus, the self-petition will be adju-dicated based on the information sub-mitted by the self-petitioner.

(18) Withholding adjudication. A dis-trict director may authorize withhold-ing adjudication of a visa petition orother application if the district direc-tor determines that an investigationhas been undertaken involving a mat-ter relating to eligibility or the exer-cise of discretion, where applicable, inconnection with the application or pe-tition, and that the disclosure of infor-mation to the applicant or petitionerin connection with the adjudication ofthe application or petition would preju-dice the ongoing investigation. If an in-vestigation has been undertaken andhas not been completed within oneyear of its inception, the district direc-tor shall review the matter and deter-mine whether adjudication of the peti-tion or application should be held inabeyance for six months or until theinvestigation is completed, whichevercomes sooner. If, after six months ofthe district director’s determination,the investigation has not been com-pleted, the matter shall be reviewedagain by the district director and, if he/she concludes that more time is neededto complete the investigation, adju-dication may be held in abeyance forup to another six months. If the inves-tigation is not completed at the end ofthat time, the matter shall be referredto the regional commissioner, who mayauthorize that adjudication be held inabeyance for another six months.Thereafter, if the Associate Commis-sioner, Examinations, with the concur-rence of the Associate Commissioner,Enforcement, determines it is nec-essary to continue to withhold adju-dication pending completion of the in-vestigation, he/she shall review thatdetermination every six months.

(19) Notification. An applicant or peti-tioner shall be sent a written decisionon his or her application, petition, mo-tion, or appeal. Where the applicant orpetitioner has authorized representa-tion pursuant to § 103.2(a), that rep-resentative shall also be notified. Doc-

uments produced after an approval no-tice is sent, such as an alien registra-tion card, shall be mailed directly tothe applicant or petitioner.

(c) Filing of applications for adjustmentof status under sections 210 and 245A ofthe Act, as amended. (1) The filing of anapplication for temporary resident sta-tus under section 245A(a) of the Actmust conform to the provisions of§ 245a.2 of this chapter. The filing of anapplication for permanent resident sta-tus under section 245A(b)(1) of the Actmust conform to the provisions of§ 245a.3 of this chapter. The filing of anapplication for adjustment of status tothat of a temporary resident under sec-tion 210(a) of the Act must conform tothe provisions of § 210.2 of this chapter.

(2) An application for adjustment totemporary or permanent resident sta-tus pursuant to section 245A (a) or(b)(1) or section 210(a) of the Act maybe accepted on behalf of the AttorneyGeneral by designated state, local andcommunity organizations as well asdesignated voluntary organizations andpersons. Each such application shallcontain a certification signed by boththe alien and the preparing member ofthe designated organization or entity,that the applicant has approved trans-mittal of the application to the Servicefor adjudication.

(3) An application accepted by any ofthe designated entities shall bestamped with an endorsement as to thedate of preparation and authorizationfor transmittal, and may be brought tothe legalization office with the appli-cant as an application ready for adju-dication. However, such applicationshall not be considered as completeuntil accepted for adjudication by anduntil the appropriate fee has been paidto the Immigration and NaturalizationService.

(d) Filing of petitions for adjustment ofstatus under section 210A of the Act, asamended. (1) The filing of a petition fortemporary resident status as a Replen-ishment Agricultural Worker, andwaivers incident to such filing, undersection 210A of the Act must conformto the provisions of part 210a of thistitle.

(2) A petition for adjustment to tem-porary resident status pursuant to sec-tion 210A of the Act shall be accepted


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only by the Service, or by personnelemployed under contract to the Serv-ice, who are under Service supervision,and are specifically designated respon-sibility for the initial processing of pe-titions and waivers. Only Service offi-cers may make decisions with respectto the granting or denial of petitionsand waivers filed under section 210A ofthe Act and part 210a of this title.

(3) Petitions and waivers filed withthe Service pursuant to part 210a ofthis title shall not be considered ascomplete until accepted for adjudica-tion by and until the appropriate feehas been paid to the Immigration andNaturalization Service.

(e) Fingerprinting. Service regulationsrequire that applicants for varioustypes of immigration benefits submittheir fingerprints with the applica-tions. To ensure they have access toreputable fingerprinting services, thefingerprinting of these benefit appli-cants must be carried out pursuant tothe fingerprinting service provisionsestablished in this paragraph.

(1) Fingerprinting by the Service.Where feasible, a local Service officeshall provide fingerprinting service toapplicants for immigration benefits.Also, the district director shall con-sider all qualified applicants for DFScertification and certify applicantswho meet the regulatory standards tosupplement the district’s efforts.Where district Service personnel areproviding fingerprinting services, thedistrict director may end such serviceswhen he or she determines that thereare sufficient outside or privatefingerprinting services available at areasonable fee.

(2) Designated fingerprinting services—(i) Law enforcement agencies. Federal,state, or local police, or military po-lice, in the United States are not re-quired to apply for DFS certification.However, it is essential that any Fed-eral, state, and local police, or militarypolice, that provide fingerprintingservices to applicants for immigrationbenefits be familiar with the Service’sfingerprinting regulations and require-ments. In order to receive updates onsuch regulations and requirements, apolicy agency that does provide suchservices must register with the Servicepursuant to procedures prescribed by

§ 103.2(e)(9). Campus police departmentshaving general arrest powers pursuantto a State statute and meeting train-ing requirements established by law orordinance for law enforcement officersare included within the category ofstate or local police departments forpurposes of § 103.2(e).

(ii) Other business entities or individ-uals. Businesses and individuals whoapply and qualify shall, subject to therequirements of § 103.2(e), be approvedby the Service to providefingerprinting services.

(3) Transition to use designatedfingerprinting services. As of March 1,1997, the Service will not accept finger-print cards for immigration benefitsunless they are taken by:

(i) A DFS accompanied by a com-pleted attestation, Form I–850A, Attes-tation by Designated FingerprintingServices Certified to Take Finger-prints;

(ii) An intending DFS or organizationthat has completed and filed an appli-cation for DFS status prior to March 1,1997, which may, pending the Service’saction upon its application, take fin-gerprints and complete the Form I–850A, indicating that its application forDFS status is pending. This provisionalauthority for an outside entity shallcease when its application is denied;

(iii) A recognized law enforcementagency that is registered as a DFS; or

(iv) Designated Service employees.(4) Eligibility for DFS. An outside en-

tity applying for DFS status may be abusiness, a not-for-profit organization,or an individual.

(i) An individual must establish thathe or she is a United States citizen orlawful permanent resident, and has notbeen convicted of an aggravated felonyor any crime related to dishonesty orfalse statements involving a civil pen-alty for fraud.

(ii) A business or a not-for-profit or-ganization must establish the identityof its chief operations officer, who ex-ercises primary and oversight controlover the organization’s operations, andits fingerprinting employees; and thebusiness or a not-for-profit organiza-tion must establish that the chief oper-ations officer and fingerprinting em-ployees are United States citizens orlawful permanent resident(s), and that


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8 CFR Ch. I (1–1–97 Edition)§ 103.2

its principal officers, directors, or part-ners meet the standard for individualapplicants.

(iii) A Federal, state, or local law en-forcement agency may register as adesignated fingerprinting service. How-ever, a law enforcement agency is notrequired to comply with the operatinglicense(s), identification and trainingof employees, criminal record historycheck, attestation, or application feeprovisions in this paragraph.

(5) Criminal history records check. (i)An identification and criminal historyrecord check is required for each em-ployee or person as otherwise describedin paragraphs (e)(4) (i) and (ii) of thissection who will take fingerprints list-ed on the application for DFS certifi-cation. The district director shall des-ignate Service personnel of the districtoffice to obtain and transmit finger-prints to the Federal Bureau of Inves-tigation (FBI) for such checks. If aDFS needs to add new or replacementemployees to the personnel approvedby the Service, it must file a new appli-cation with the district director havingjurisdiction over the DFS’s place ofbusiness. That new application must beaccompanied by the required fee forthe FBI fingerprint check. The Servicewill accept fingerprints from an appli-cant for DFS certification only it thefingerprints were taken by designatedService personnel.

(ii) An employee who has been con-victed of an aggravated felony or acrime involving dishonestly or falsestatement, or who has been subjectedto a civil penalty for fraud, may not beassigned to take fingerprints unless theDFS can establish to the Service’s sat-isfaction that the circumstances of theoffense are such (because of the per-son’s youth at the time of the offense,and/or the number of years that havepassed since its commission) that therecan be no reasonable doubt as to theperson’s reliability in taking finger-prints in conformity with these rules.

(6) Requirements. Except as providedunder paragraph(e)(9) of this section,an outside entity seeking certificationas a DFS must agree that it will:

(i) Abide by Service regulations gov-erning certification of DFS(s);

(ii) Permit Service personnel andService contract personnel to make on-

site inspections to ensure compliancewith required procedures;

(iii) Ensure that the personnel re-sponsible for taking fingerprints re-ceived training in fingerprinting proce-dures by the Service or FBI (exceptionscan be made for those who have pre-viously received training from the FBIor the Service or who can otherwisedemonstrate equivalent training);

(iv) Notify the district director wherethe application was filed when thecompletion of fingerprinting trainingoccurred prior to the approval of theapplication, if such training was notcompleted but was in progress or hadbeen scheduled at the filing of the ap-plication;

(v) Use only FBI or Service-trainedemployees to train its new employeeson fingerprinting procedures (excep-tions can be made for those who havepreviously received training from theFBI or the Service) and to conductperiodic refresher training as needed;

(vi) Make every reasonable effort totake legible and classifiable finger-prints, using only black ink;

(vii) Retake the applicants’ printsfree of charge if the DFS initially failsto take legible and classifiable prints;

(viii) Use only the fingerprint card(s),Form(s) FD–258, or other Service-des-ignated documents to take fingerprintsfor immigration purposes;

(ix) Ensure that the fingerprintcard(s) or other Service-designated fin-gerprint documents are completed inaccordance with the instructions pro-vided, using FBI prescribed personaldescriptor codes;

(x) Ensure that the fingerprintcard(s) or other Service-designatedforms are signed by the applicants intheir presence and by the fingerprinter;

(xi) Verify the identification of theperson being fingerprinted by compar-ing the information on the fingerprintcard, Form FD–258, or other Service-designated forms with the applicant’spassport, national ID, military ID,driver’s license or state-issued photo-ID, alien registration card, or other ac-ceptable Service-issued photo-ID;


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(xii) Complete an attestation onForm I–850A, Attestation by Des-ignated Fingerprinting Service Cer-tified to Take Fingerprints, and pro-vide it to the person beingfingerprinted;

(xiii) Note (legibly by hand or using arubber stamp) on the back of the fin-gerprint card, Form FD–258, or a Serv-ice designated fingerprint document,the DFS’s name and address, certifi-cation number, expiration date, theDFS fingerprinter’s ID number and sig-nature, and the date on which the fin-gerprints are taken. The DFS finger-print shall seal the completed finger-print card or fingerprint document, andsign or imprint a stamp with an origi-nal signature crossing the sealed area.

(xiv) Charge only reasonable fees forfingerprinting services, and the currentfee status is to be made known to theService;

(xv) Notify the director having juris-diction over the applicant’s place ofbusiness within 2 working days, onForm I–850 without fee, of any changesin personnel responsible for taking fin-gerprints;

(xvi) Request approval for any newpersonnel to take fingerprints accord-ing to the procedures set forth in para-graphs (e) (4), (5), (6), (8), and (9) of thissection;

(xvii) Notify the Service of any con-viction for an aggravated felony or fora crime involving dishonesty or falsestatement, or of any civil penalty forfraud subsequent to the DFS certifi-cation of an employee authorized totake fingerprints; and

(xviii) Maintain facilities which arepermanent and accessible to the public.The use of the terms permanent andaccessible to the public shall not in-clude business or organizational oper-ations in private homes, vans or auto-mobiles, mobile carts, and removablestands or portable storefronts.

(7) Attestation. (i) To ensure the integ-rity of the fingerprint cards submittedby applicants for benefits, all DFSfingerprinters must fill out an attesta-tion on Form I–850A each time theytake fingerprints for an immigrationbenefit applicant. Such attestationmut be signed and dated by thefingerprinter and show:

(A) The fingerprinter’s name and IDnumber (as assigned by the Service)and a statement that the requirementsof § 103.2(e) have been met;

(B) The name, address, certificationnumber (as assigned by the Service),and expiration date of the DFS certifi-cation;

(C) That he or she has checked theidentity of the person he or shefingerprinted and has listed the identi-fication number from the individual’spassport, national ID, military ID,driver’s license or state-issued photo-ID, alien registration card, or other ac-ceptable Service-issued photo-ID; and

(D) That it is signed and dated by thebenefit applicant.

(ii) DFS fingerprinters must executethe attestations in duplicate in thepresence of the applicant. The originalmust be given to the applicant to befiled with the Service with his or herfingerprint card, and the copy, whichmay be a reproduced copy of the origi-nal, must be kept on file at the DFS forat least 3 months for Service inspec-tion.

(8) Application. An outside organiza-tion seeking certification as a DFS, ora DFS seeking approval for personnelchange, must submit an application onForm I–850, Application for Certifi-cation for Designated FingerprintingServices, to the district director hav-ing jurisdiction over the applicant’splace of business. The application mustinclude the following:

(i) The required fee;(ii) A copy of all business licenses or

permits required for its operations andif the organization is a not-for-profitentity, documented evidence of suchstatus;

(iii) The names and signatures of per-sonnel who will take fingerprints of ap-plicants for immigration benefits;

(iv) A set of fingerprints taken by aService employee on Form FD–258 foreach employee whose name appears onthe application form pursuant to para-graph (e)(4) of this section, and the re-quired fee (for each employee) for theFBI criminal history record check;

(v) A statement on Form I–850 indi-cating the fee, if any, it will charge forthe fingerprinting service; and

(vi) A signed statement on Form I–850 attesting that the DFS will abide


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8 CFR Ch. I (1–1–97 Edition)§ 103.2

by the Service regulation governingfingerprinting and the certification ofdesignated fingerprinting services.

(9) Registration of police stations ormilitary police agencies. (i) Federal,state, or local police stations, or mili-tary police agencies, may individuallyregister to take fingerprints of appli-cants for immigration benefits by fil-ing a Form I–850, application for Cer-tification for DesignatedFingerprinting Services, completingonly the relevant parts of the form. Nofee or fingerprint cards need to be sub-mitted for their personnel charged withthe fingerprinting responsibility; norare these personnel required to haveadditional training in fingerprintingtechniques and procedures. Further-more, law enforcement agencies reg-istered to take fingerprints under thisparagraph are not subject to on-site in-spections by the Service. The Servicewill communicate with these agenciesthrough regular liaison channels at thelocal level.

(ii) A police department may requestregistration on behalf of all of its sub-ordinate stations on a single applica-tion by listing their precinct numbersand addresses. Once registered, theService will include the individual po-lice stations and military police agen-cies on the Service’s list of DFS orga-nizations. The Service will make avail-able to these agencies thefingerprinting regulations, related in-struction material or other relevant in-formation when appropriate.

(10) Confidentiality. A DFS is prohib-ited from releasing fingerprints takenpursuant to certification, other than tothe Service or to the applicant or asotherwise provided in the Service’s reg-ulations. Law enforcement agenciesenumerated under paragraph (e)(9) ofthis section are not precluded fromusing the fingerprints they have col-lected for immigration purposes inother law enforcement efforts.

(11) Approval of application. The dis-trict director shall consider all sup-porting documents submitted and mayrequest additional documentation as heor she may deem necessary. When theapplication has been approved, the dis-trict director shall assign a certifi-cation number to the DFS and individ-ual ID numbers to its approved

fingerprinters. The approval will bevalid for a period of 3 years and may berenewed in accordance with paragraph(e)(13) of this section. The district di-rector shall notify the applicant of theapproval and include in the notice ofapproval the following items:

(i) Instructions on how to prepareApplicant Fingerprint Cards, FormFD–258;

(ii) A listing of acceptable Service-is-sued photo-IDs; and

(iii) A statement detailing theDFS(s) responsibilities and rights, in-cluding the renewal and revocationprocedures as provided by paragraphs(e) (12) and (13) of this section.

(12) Denial of the application. The ap-plicant shall be notified of the denial ofan application, the reasons for the de-nial, and the right to appeal to theAAO under 8 CFR part 103.

(13) Renewal. (i) Subject to paragraph(e)(13)(ii) of this section, a DFS mustapply for renewal of its certification atleast ninety (90) days prior to the expi-ration date to prevent interruption inits ability to provide fingerprintingservices. An application for renewalmust be made on Form I–850 with therequired fee and documentation as con-tained in paragraph (e)(8) of this sec-tion. In considering an application forrenewal, the Service will give appro-priate weight to the volume, nature,and the substance of complaints or is-sues raised in the past regarding thatparticular DFS and or relevant cir-cumstances which are made known tothe Service by the general public, othergovernmental or private organizations,or through Service inspections. Also,the Service will favorably consider theabsence of such complaints or issues.Each renewal shall be valid for 3 years.Failure to apply for renewal will resultin the expiration of the outside entity’sDFS status.

(ii) The Service will certify andrenew DFS(s) as long as the need fortheir service exists. Following the de-velopment of an automated fingerprintinformation system, the Service willdetermine if there is a continued needfor the DFS’ services and, if so, wheth-er they should switch to newer tech-nologies, such as acquiring compatibleautomated fingerprinting equipment.In either event, the Service shall issue


69


a public notification or issue a newrule, as appropriate. Nothing in thisparagraph shall preclude the Service,in its discretion, from discontinuingthe DFS certification program afterthe initial 3 years or from requiring, asa condition of continued certification,that the DFS incorporate automatedfingerprinting equipment.

(14) Revocation of certification. Thedistrict director shall revoke an ap-proval of application for DFS statusunder the following circumstances:

(i)Automatic revocation. The approvalof any application is automatically re-voked if the DFS:

(A) Goes out of business prior to theexpiration of the approval; or

(B) Files a written withdrawal of theapplication.

(ii)Revocation on notice. The Serviceshall revoke on notice the certificationof a DFS which has violated the regula-tions governing the fingerprintingprocess as established in paragraph (e)of this section.

(A) If the district director finds thata DFS has failed to meet the requiredstandards, he or she will issue a noticeof intent to revoke detailing reasonsfor the intended revocation. Within 30days of the receipt of the notice, theDFS may submit evidence in rebuttalor request an inspection following cor-rective actions. The district directorshall cancel the notice of intent to re-voke if he or she is satisfied with theevidence presented by the DFS or theresults of a reinspection.

(B) For flagrant violations, such asfailure to verify the identity of the per-sons seeking fingerprinting, the dis-trict director may, in his or her discre-tion, issue a suspension order and placethe DFS on immediate suspension.During the suspension period, the DFSmay not take fingerprints, and theService will not accept fingerprintstaken by the suspended DFS. The DFSunder suspension may submit a planfor corrective action to the district di-rector within 30 days and request a re-inspection. If the district director ap-proves the plan, he or she shall permitthe DFS to resume fingerprinting onprobation pending the results of the re-inspection and the Service will resumeaccepting submitted fingerprints. Thedistrict director shall cancel the sus-

pension order if he or she finds the re-sults of a reinspection satisfactory.

(C) If the DFS fails to submit evi-dence of rebuttal or corrective actionswithin the 30-day period, or if unsatis-factory conditions persist at the secondinspection, the district director shallnotify the DFS of the revocation deci-sion, detailing the reasons, and of itsright to appeal.

(D) The district director shall con-sider all timely submitted evidence anddecide whether to revoke the DFS ap-proval. The district director shall alsodecide whether any such revocationshall preclude accepting fingerprintstaken by that DFS (or any of its officesor employees) during some or all of theperiod of its certification.

(iii) If the Service’s investigation un-covers evidence of material mis-conduct, the Service may, in additionto revocation, refer the matter for ac-tion pursuant to section 274C of the Act(Penalties for Document Fraud), or 18U.S.C. 1001 (false statement), or forother appropriate enforcement action.

(15) Appeal of revocation of approval.The revocation of approval may be ap-pealed to the Service’s AdministrativeAppeals Office (AAO). There is no ap-peal from an automatic revocation.

(16) List of DFS(s). Each district officeshall make available a list of theDFS(s) it has certified to take finger-prints. Such list shall contain thename, address, telephone number, ifavailable, and the fingerprinting feecharge, if any, of each DFS certified inthe district.

(17) Change of address or in fee. A DFSshall notify the Service, on Form I–850,without an application fees, of anychange(s) of address or change(s) in thefee charged for fingerprinting at least10 working days before such a changetakes place. The district office shallupdate its DFS list, including anyfingerprinting fee changes, upon re-ceipt of the notice of change(s).

(18) False advertising or misrepresenta-tion by a DFS. Designatedfingerprinting services are prohibitedform exploiting their DFS status bycreating the impression that they areauthorized by the Service to do morethan fingerprinting. DFS(s) are prohib-ited from using the Service logo on


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8 CFR Ch. I (1–1–97 Edition)§ 103.3

their stationery, flyers, or advertise-ments. When dealing with the public oradvertising for business, a DFS mayrefer to itself only as ‘‘an INS-Author-ized Fingerprinting Service.’’ DFS(s)found in violation of this requirementare subject to suspension or revocationactions pursuant to § 103.2(e)(14).

[29 FR 11956, Aug. 21, 1964, as amended at 30FR 14772, Nov. 30, 1965; 32 FR 9622, July 4,1967; 33 FR 11644, Aug. 16, 1968; 39 FR 43055,Dec. 10, 1974; 44 FR 52169, Sept. 7, 1979; 47 FR44990, Oct. 13, 1982; 50 FR 11841, Mar. 26, 1985;52 FR 16192, May 1, 1987; 53 FR 26034, July 11,1988; 54 FR 29881, July 17, 1989; 56 FR 624, Jan.7, 1991; 59 FR 1460, 1461, Jan. 11, 1994; 59 FR33905, July 1, 1994; 61 FR 13072, Mar. 26, 1996;61 FR 28010, June 4, 1996; 61 FR 57584, Nov. 7,1996]

§ 103.3 Denials, appeals, and precedentdecisions.

(a) Denials and appeals—(1) General—(i) Denial of application or petition.When a Service officer denies an appli-cation or petition filed under § 103.2 ofthis part, the officer shall explain inwriting the specific reasons for denial.If Form I–292 (a denial form includingnotification of the right of appeal) isused to notify the applicant or peti-tioner, the duplicate of Form I–292 con-stitutes the denial order.

(ii) Appealable decisions. Certain unfa-vorable decisions on applications, peti-tions, and other types of cases may beappealed. Decisions under the appellatejurisdiction of the Board of Immigra-tion Appeals (Board) are listed in§ 3.1(b) of this chapter. Decisions underthe appellate jurisdiction of the Asso-ciate Commissioner, Examinations, arelisted in § 103.1(f)(2) of this part.

(iii) Appeal—(A) Jurisdiction. When anunfavorable decision may be appealed,the official making the decision shallstate the appellate jurisdiction andshall furnish the appropriate appealform.

(B) Meaning of affected party. For pur-poses of this section and §§ 103.4 and103.5 of this part, affected party (in addi-tion to the Service) means the personor entity with legal standing in a pro-ceeding. It does not include the bene-ficiary of a visa petition. An affectedparty may be represented by an attor-ney or representative in accordancewith part 292 of this chapter.

(C) Record of proceeding. An appealand any cross-appeal or briefs becomepart of the record of proceeding.

(D) Appeal filed by Service officer incase within jurisdiction of Board. If anappeal is filed by a Service officer, acopy must be served on the affectedparty.

(iv) Function of Administrative AppealsUnit (AAU). The AAU is the appellatebody which considers cases under theappellate jurisdiction of the AssociateCommissioner, Examinations.

(v) Summary dismissal. An officer towhom an appeal is taken shall sum-marily dismiss any appeal when theparty concerned fails to identify spe-cifically any erroneous conclusion oflaw or statement of fact for the appeal.The filing by an attorney or represent-ative accredited under 8 CFR 292.2(d) ofan appeal which is summarily dis-missed under this section may con-stitute frivolous behavior as defined in8 CFR 292.3(a)(15). Summary dismissalof an appeal under § 103.3(a)(1)(v) in noway limits the other grounds and pro-cedures for disciplinary action againstattorneys or representatives providedin 8 CFR 292.2 or in any other statuteor regulation.

(2) AAU appeals in other than specialagricultural worker and legalizationcases—(i) Filing appeal. The affectedparty shall file an appeal on Form I–290B. Except as otherwise provided inthis chapter, the affected party mustpay the fee required by § 103.7 of thispart. The affected party shall file thecomplete appeal including any support-ing brief with the office where the un-favorable decision was made within 30days after service of the decision.

(ii) Reviewing official. The officialwho made the unfavorable decisionbeing appealed shall review the appealunless the affected party moves to anew jurisdiction. In that instance, theofficial who has jurisdiction over sucha proceeding in that geographic loca-tion shall review it.

(iii) Favorable action instead of for-warding appeal to AAU. The reviewingofficial shall decide whether or not fa-vorable action is warranted. Within 45days of receipt of the appeal, the re-viewing official may treat the appealas a motion to reopen or reconsider andtake favorable action. However, that


71


official is not precluded from reopeninga proceeding or reconsidering a deci-sion on his or her own motion under§ 103.5(a)(5)(i) of this part in order tomake a new decision favorable to theaffected party after 45 days of receiptof the appeal.

(iv) Forwarding appeal to AAU. If thereviewing official will not be taking fa-vorable action or decides favorable ac-tion is not warranted, that officialshall promptly forward the appeal andthe related record of proceeding to theAAU in Washington, DC.

(v) Improperly filed appeal—(A) Appealfiled by person or entity not entitled tofile it—(1) Rejection without refund of fil-ing fee. An appeal filed by a person orentity not entitled to file it must be re-jected as improperly filed. In such acase, any filing fee the Service has ac-cepted will not be refunded.

(2) Appeal by attorney or representativewithout proper Form G–28—(i) General. Ifan appeal is filed by an attorney or rep-resentative without a properly exe-cuted Notice of Entry of Appearance asAttorney or Representative (Form G–28) entitling that person to file the ap-peal, the appeal is considered improp-erly filed. In such a case, any filing feethe Service has accepted will not be re-funded regardless of the action taken.

(ii) When favorable action warranted. Ifthe reviewing official decides favorableaction is warranted with respect to anotherwise properly filed appeal, thatofficial shall ask the attorney or rep-resentative to submit Form G–28 to theofficial’s office within 15 days of the re-quest. If Form G–28 is not submittedwithin the time allowed, the officialmay, on his or her own motion, under§ 103.5(a)(5)(i) of this part, make a newdecision favorable to the affected partywithout notifying the attorney or rep-resentative.

(iii) When favorable action not war-ranted. If the reviewing official decidesfavorable action is not warranted withrespect to an otherwise properly filedappeal, that official shall ask the at-torney or representative to submitForm G–28 directly to the AAU. The of-ficial shall also forward the appeal andthe relating record of proceeding to theAAU. The appeal may be consideredproperly filed as of its original filingdate if the attorney or representative

submits a properly executed Form G–28entitling that person to file the appeal.

(B) Untimely appeal—(1) Rejectionwithout refund of filing fee. An appealwhich is not filed within the time al-lowed must be rejected as improperlyfiled. In such a case, any filing fee theService has accepted will not be re-funded.

(2) Untimely appeal treated as motion.If an untimely appeal meets the re-quirements of a motion to reopen asdescribed in § 103.5(a)(2) of this part ora motion to reconsider as described in§ 103.5(a)(3) of this part, the appealmust be treated as a motion, and a de-cision must be made on the merits ofthe case.

(vi) Brief. The affected party maysubmit a brief with Form I–290B.

(vii) Additional time to submit a brief.The affected party may make a writtenrequest to the AAU for additional timeto submit a brief. The AAU may, forgood cause shown, allow the affectedparty additional time to submit one.

(viii) Where to submit supporting briefif additional time is granted. If the AAUgrants additional time, the affectedparty shall submit the brief directly tothe AAU.

(ix) Withdrawal of appeal. The af-fected party may withdraw the appeal,in writing, before a decision is made.

(x) Decision on appeal. The decisionmust be in writing. A copy of the deci-sion must be served on the affectedparty and the attorney or representa-tive of record, if any.

(3) Denials and appeals of special agri-cultural worker and legalization applica-tions and termination of lawful temporaryresident status under sections 210 and245A. (i) Whenever an application forlegalization or special agriculturalworker status is denied or the status ofa lawful temporary resident is termi-nated, the alien shall be given writtennotice setting forth the specific rea-sons for the denial on Form I–692, No-tice of Denial. Form I–692 shall alsocontain advice to the applicant that heor she may appeal the decision andthat such appeal must be taken within30 days after service of the notificationof decision accompanied by any addi-tional new evidence, and a supportingbrief if desired. The Form I–692 shalladditionally provide a notice to the


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8 CFR Ch. I (1–1–97 Edition)§ 103.3

alien that if he or she fails to file anappeal from the decision, the Form I–692 will serve as a final notice of ineli-gibility.

(ii) Form I–694, Notice of Appeal, intriplicate, shall be used to file the ap-peal, and must be accompanied by theappropriate fee. Form I–694 shall befurnished with the notice of denial atthe time of service on the alien.

(iii) Upon receipt of an appeal, theadministrative record will be for-warded to the Administrative AppealsUnit as provided by § 103.1(f)(2) of thispart for review and decision. The deci-sion on the appeal shall be in writing,and if the appeal is dismissed, shall in-clude a final notice of ineligibility. Acopy of the decision shall be servedupon the applicant and his or her at-torney or representative of record. Nofurther administrative appeal shall liefrom this decision, nor may the appli-cation be filed or reopened before animmigration judge or the Board of Im-migration Appeals during exclusion ordeportation proceedings.

(iv) Any appeal which is filed that:(A) Fails to state the reason for ap-

peal;(B) Is filed solely on the basis of a de-

nial for failure to file the applicationfor adjustment of status under section210 or 245A in a timely manner; or

(C) Is patently frivolous; will be sum-marily dismissed. An appeal receivedafter the thirty (30) day period hastolled will not be accepted for process-ing.

(4) Denials and appeal of Replenish-ment Agricultural Worker petitions andwaivers and termination of lawful tem-porary resident status under section 210A.(i) Whenever a petition for Replenish-ment Agricultural Worker status, or arequest for a waiver incident to suchfiling, is denied in accordance with theprovisions of part 210a of this title, thealien shall be given written notice set-ting forth the specific reasons for thedenial on Form I–692, Notice of Denial.Form I–692 shall also contain advice tothe alien that he or she may appeal thedecision and that such appeal must betaken within thirty (30) days afterservice of the notification of decisionaccompanied by any additional newevidence, and a supporting brief if de-sired. The Form I–692 shall additionally

provide a notice to the alien that if heor she fails to file an appeal from thedecision, the Form I–692 shall serve asa final notice of ineligibility.

(ii) Form I–694, Notice of Appeal, intriplicate, shall be used to file the ap-peal, and must be accompanied by theappropriate fee. Form I–694 shall befurnished with the notice of denial atthe time of service on the alien.

(iii) Upon receipt of an appeal, theadministrative record will be for-warded to the Administrative AppealsUnit as provided by § 103.1(f)(2) of thispart for review and decision. The deci-sion on the appeal shall be in writing,and if the appeal is dismissed, shall in-clude a final notice of ineligibility. Acopy of the decision shall be servedupon the petitioner and his or her at-torney or representative of record. Nofurther administrative appeal shall liefrom this decision, nor may the peti-tion be filed or reopened before an im-migration judge or the Board of Immi-gration Appeals during exclusion or de-portation proceedings.

(iv) Any appeal which is filed that:Fails to state the reason for the appeal;is filed solely on the basis of a denialfor failure to file the petition for ad-justment of status under part 210a ofthis title in a timely manner; or is pa-tently frivolous, will be summarily dis-missed. An appeal received after thethirty (30) day period has tolled willnot be accepted for processing.

(b) Oral argument regarding appeal be-fore AAU—(1) Request. If the affectedparty desires oral argument, the af-fected party must explain in writingspecifically why oral argument is nec-essary. For such a request to be consid-ered, it must be submitted within thetime allowed for meeting other re-quirements.

(2) Decision about oral argument. TheService has sole authority to grant ordeny a request for oral argument. Uponapproval of a request for oral argu-ment, the AAU shall set the time, date,place, and conditions of oral argument.

(c) Service precedent decisions. In addi-tion to Attorney General and Board de-cisions referred to in § 3.1(g) of thischapter, designated Service decisionsare to serve as precedents in all pro-ceedings involving the same issue(s).


73


Except as these decisions may be modi-fied or overruled by later precedent de-cisions, they are binding on all Serviceemployees in the administration of theAct. Precedent decisions must be pub-lished and made available to the publicas described in § 103.9(a) of this part.

[31 FR 3062, Feb. 24, 1966, as amended at 37FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11,1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192,May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR20769, 20775, May 21, 1990; 55 FR 23345, June 7,1990; 57 FR 11573, Apr. 6, 1992]

§ 103.4 Certifications.

(a) Certification of other than specialagricultural worker and legalizationcases—(1) General. The Commissioner orthe Commissioner’s delegate may di-rect that any case or class of cases becertified to another Service official fordecision. In addition, regional commis-sioners, regional service center direc-tors, district directors, officers incharge in districts 33 (Bangkok, Thai-land), 35 (Mexico City, Mexico), and 37(Rome, Italy), and the Director, Na-tional Fines Office, may certify theirdecisions to the appropriate appellateauthority (as designated in this chap-ter) when the case involves an unusu-ally complex or novel issue of law orfact.

(2) Notice to affected party. When acase is certified to a Service officer,the official certifying the case shall no-tify the affected party using a Noticeof Certification (Form I–290C). The af-fected party may submit a brief to theofficer to whom the case is certifiedwithin 30 days after service of the no-tice. If the affected party does not wishto submit a brief, the affected partymay waive the 30-day period.

(3) Favorable action. The Service offi-cer to whom a case is certified maysuspend the 30-day period for submis-sion of a brief if that officer takes ac-tion favorable to the affected party.

(4) Initial decision. A case within theappellate jurisdiction of the AssociateCommissioner, Examinations, or forwhich there is no appeal procedure maybe certified only after an initial deci-sion is made.

(5) Certification to AAU. A case de-scribed in paragraph (a)(4) of this sec-tion may be certified to the AAU.

(6) Appeal to Board. In a case withinthe Board’s appellate jurisdiction, anunfavorable decision of the Service of-ficial to whom the case is certified(whether made initially or upon re-view) is the decision which may be ap-pealed to the Board under § 3.1(b) ofthis chapter.

(7) Other applicable provisions. Theprovisions of § 103.3(a)(2)(x) of this partalso apply to decisions on certifiedcases. The provisions of § 103.3(b) of thispart also apply to requests for oral ar-gument regarding certified cases con-sidered by the AAU.

(b) Certification of denials of special ag-ricultural worker and legalization appli-cations. The Regional Processing Facil-ity director or the district directormay, in accordance with paragraph (a)of this section, certify a decision to theAssociate Commissioner, Examinations(Administrative Appeals Unit) (the ap-pellate authority designated in§ 103.1(f)(2)) of this part, when the caseinvolves an unusually complex or novelquestion of law or fact.

[52 FR 661, Jan. 8, 1987, as amended at 53 FR43985, Oct. 31, 1988; 55 FR 20770, May 21, 1990]

§ 103.5 Reopening or reconsideration.(a) Motions to reopen or reconsider in

other than special agricultural workerand legalization cases—(1) When filed byaffected party—(i) General. Exceptwhere the Board has jurisdiction and asotherwise provided in 8 CFR parts 3,210, 242 and 245a, when the affectedparty files a motion, the official havingjurisdiction may, for proper causeshown, reopen the proceeding or recon-sider the prior decision. Motions to re-open or reconsider are not applicable toproceedings described in § 274a.9 of thischapter. Any motion to reconsider anaction by the Service filed by an appli-cant or petitioner must be filed within30 days of the decision that the motionseeks to reconsider. Any motion to re-open a proceeding before the Servicefiled by an applicant or petitioner,must be filed within 30 days of the deci-sion that the motion seeks to reopen,except that failure to file before thisperiod expires, may be excused in thediscretion of the Service where it isdemonstrated that the delay was rea-sonable and was beyond the control ofthe applicant or petitioner.


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8 CFR Ch. I (1–1–97 Edition)§ 103.5

(ii) Jurisdiction. The official havingjurisdiction is the official who madethe latest decision in the proceedingunless the affected party moves to anew jurisdiction. In that instance, thenew official having jurisdiction is theofficial over such a proceeding in thenew geographical locations.

(iii) Filing Requirements—A motionshall be submitted on Form I–290A, andmay be accompanied by a brief. It mustbe—

(A) In writing and signed by the af-fected party or the attorney or rep-resentative of record, if any;

(B) In triplicate if addressed to theBoard, in duplicate if addressed to animmigration judge, without any copiesif addressed to a Service officer;

(C) Accompanied by a nonrefundablefee as set forth in § 103.7;

(D) Accompanied by a statementabout whether or not the validity ofthe unfavorable decision has been or isthe subject of any judicial proceedingand, if so, the court, nature, date, andstatus or result of the proceeding;

(E) Addressed to the official havingjurisdiction; and

(F) Submitted to the office maintain-ing the record upon which the unfavor-able decision was made for forwardingto the official having jurisdiction.

(iv) Effect of motion or subsequent ap-plication or petition. Unless the Servicedirects otherwise, the filing of a mo-tion to reopen or reconsider or of a sub-sequent application or petition doesnot stay the execution of any decisionin a case or extend a previously set de-parture date.

(2) Requirements for motion to reopen.A motion to reopen must state the newfacts to be provided in the reopenedproceeding and be supported by affida-vits or other documentary evidence. Amotion to reopen an application or pe-tition denied due to abandonment mustbe filed with evidence that the decisionwas in error because:

(i) The requested evidence was notmaterial to the issue of eligibility;

(ii) The required initial evidence wassubmitted with the application or peti-tion, or the request for initial evidenceor additional information or appear-ance was complied with during the al-lotted period; or

(iii) The request for additional infor-mation or appearance was sent to anaddress other than that on the applica-tion, petition, or notice of representa-tion, or that the applicant or peti-tioner advised the Service, in writing,of a change of address or change of rep-resentation subsequent to filing andbefore the Service’s request was sent,and the request did not go to the newaddress.

(3) Requirements for motion to recon-sider. A motion to reconsider muststate the reasons for reconsiderationand be supported by any pertinentprecedent decisions to establish thatthe decision was based on an incorrectapplication of law or Service policy. Amotion to reconsider a decision on anapplication or petition must, whenfiled, also establish that the decisionwas incorrect based on the evidence ofrecord at the time of the initial deci-sion.

(4) Processing motions in proceedingsbefore the Service. A motion that doesnot meet applicable requirements shallbe dismissed. Where a motion to reopenis granted, the proceeding shall be re-opened. The notice and any favorabledecision may be combined.

(5) Motion by Service officer—(i) Service motion with decision favor-

able to affected party. When a Serviceofficer, on his or her own motion, re-opens a Service proceeding or reconsid-ers a Service decision in order to makea new decision favorable to the affectedparty, the Service officer shall combinethe motion and the favorable decisionin one action.

(ii) Service motion with decision thatmay be unfavorable to affected party.When a Service officer, on his or herown motion, reopens a Service proceed-ing or reconsiders a Service decision,and the new decision may be unfavor-able to the affected party, the officershall give the affected party 30 daysafter service of the motion to submit abrief. The officer may extend the timeperiod for good cause shown. If the af-fected party does not wish to submit abrief, the affected party may waive the30-day period.

(iii) Proceeding before Board or immi-gration judge. When a Service officer isthe moving party in a proceeding be-fore the Board or an immigration


75

Immigration and Naturalization Service, Justice § 103.5a

judge, a copy of the motion must beserved on the affected party. The mo-tion and proof of service must be filedwith the official having jurisdiction.The affected party has 10 days from thedate of service to submit a brief. Thistime period may be extended as pro-vided in §§ 3.8(c) and 3.22(b) of this chap-ter.

(6) Appeal to AAU from Service decisionmade as a result of a motion. A field of-fice decision made as a result of a mo-tion may be applied to the AAU only ifthe original decision was appealable tothe AAU.

(7) Other applicable provisions. Theprovisions of § 103.3(a)(2)(x) of this partalso apply to decisions on motions. Theprovisions of § 103.3(b) of this part alsoapply to requests for oral argument re-garding motions considered by theAAU.

(8) Treating an appeal as a motion. Theofficial who denied an application orpetition may treat the appeal fromthat decision as a motion for the pur-pose of granting the motion.

(b) Motions to reopen or reconsider de-nials of special agricultural worker andlegalization applications. Upon the filingof an appeal to the Associate Commis-sioner, Examinations (AdministrativeAppeals Unit), the Director of a Re-gional Processing Facility or the con-sular officer at an Overseas ProcessingOffice may sua sponte reopen any pro-ceeding under his or her jurisdictionopened under part 210 or 245a of thischapter and may reconsider any deci-sion rendered in such proceeding. Thenew decision must be served on the ap-pellant within 45 days of receipt of anybrief and/or new evidence, or upon expi-ration of the time allowed for the sub-mission of a brief. The Associate Com-missioner, Examinations, or the Chiefof the Administrative Appeals Unitmay sua sponte reopen any proceedingconducted by that Unit under part 210or 245a of this chapter and reconsiderany decision rendered in such proceed-ing. Motions to reopen a proceeding orreconsider a decision under part 210 or245a of this chapter shall not be consid-ered.

(c) Motions to reopen or reconsider deci-sions on replenishment agricultural work-er petitions. (1) The director of a re-gional processing facility may sua

sponte reopen any proceeding underpart 210a of this title which is withinhis or her jurisdiction and may rendera new decision. This decision may re-verse a prior favorable decision when itis determined that there was fraud dur-ing the registration or petition proc-esses and the petitioner was not enti-tled to the status granted. The peti-tioner must be given an opportunity tooffer evidence in support of the peti-tion and in opposition to the groundsfor reopening the petition before a newdecision is rendered.

(2) The Associate Commissioner, Ex-aminations or the Chief of the Admin-istrative Appeals Unit may sua spontereopen any proceeding conducted bythat unit under part 210a of this titleand reconsider any decision rendered insuch proceeding.

(3) Motions to reopen a proceeding orreconsider a decision under part 210a ofthis title shall not be considered.

[27 FR 7562, Aug. 1, 1962, as amended at 30 FR12772, Oct. 7, 1965; 32 FR 271, Jan. 11, 1967; 52FR 16193, May 1, 1987; 54 FR 29881, July 17,1989; 55 FR 20770, 20775, May 21, 1990; 55 FR25931, June 25, 1990; 56 FR 41782, Aug. 23, 1991;59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr. 29,1996]

§ 103.5a Service of notification, deci-sions, and other papers by the Serv-ice.

This section states authorized meansof service by the Service on parties andon attorneys and other interested per-sons of notices, decisions, and other pa-pers (except warrants and subpoenas)in administrative proceedings beforeService officers as provided in thischapter.

(a) Definitions—(1) Routine service.Routine service consists of mailing acopy by ordinary mail addressed to aperson at his last known address.

(2) Personal service. Personal service,which shall be performed by a Govern-ment employee, consists of any of thefollowing, without priority or pref-erence:

(i) Delivery of a copy personally;(ii) Delivery of a copy at a person’s

dwelling house or usual place of abodeby leaving it with some person of suit-able age and discretion;


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8 CFR Ch. I (1–1–97 Edition)§ 103.5b

(iii) Delivery of a copy at the officeof an attorney or other person, includ-ing a corporation, by leaving it with aperson in charge;

(iv) Mailing a copy by certified orregistered mail, return receipt re-quested, addressed to a person at hislast known address.

(b) Effect of service by mail. Whenevera person has the right or is required todo some act within a prescribed periodafter the service of a notice upon himand the notice is served by mail, 3 daysshall be added to the prescribed period.Service by mail is complete upon mail-ing.

(c) When personal service required—(1)Generally. In any proceeding which isinitiated by the Service, with proposedadverse effect, service of the initiatingnotice and of notice of any decision bya Service officer shall be accomplishedby personal service, except as providedin § 242.1(c) of this chapter.

(2) Persons confined, minors, andincompetents—(i) Persons confined. If aperson is confined in a penal or mentalinstitution or hospital and is com-petent to understand the nature of theproceedings initiated against him,service shall be made both upon himand upon the person in charge of theinstitution or the hospital. If the con-fined person is not competent to under-stand, service shall be made only onthe person in charge of the institutionor hospital in which he is confined,such service being deemed service onthe confined person.

(ii) Incompetents and minors. In case ofmental incompetency, whether or notconfined in an institution, and in thecase of a minor under 14 years of age,service shall be made upon the personwith whom the incompetent or theminor resides; whenever possible, serv-ice shall also be made on the near rel-ative, guardian, committee, or friend.

(d) When personal service not required.Service of other types of papers in pro-ceedings described in paragraph (c) ofthis section, and service of any type ofpapers in any other proceedings, maybe accomplished either by routine serv-ice or by personal service.

[37 FR 11470, June 8, 1972, as amended at 39FR 23247, June 27, 1974]

§ 103.5b Application for further actionon an approved application or peti-tion.

(a) General. An application for fur-ther action on an approved applicationor petition must be filed on Form I–824by the applicant or petitioner who filedthe original application or petition. Itmust be filed with the fee required in§ 103.7 and the initial evidence requiredon the application form. Form I–824may accompany the original applica-tion or petition, or may be filed afterthe approval of the original applicationor petition.

(b) Requested actions. A person whoseapplication was approved may, duringits validity period, apply for a dupli-cate approval notice or any other ac-tion specifically provided for on theform. A petitioner whose petition wasapproved may, during the validity ofthe petition, request that the Service:

(1) Issue a duplicate approval notice;(2) Notify another consulate of the

approved petition;(3) Notify a consulate of the person’s

adjustment of status for the purpose ofvisa issuance to dependents; or

(4) Take any other action specificallyprovided for on the form.

(c) Processing. The application shallbe approved if the Service determinesthe applicant has fully demonstratedeligibility for the requested action.There is no appeal from the denial ofan application filed on Form I–824.

[59 FR 1463, Jan. 11, 1994]

§ 103.6 Surety bonds.(a) Posting of surety bonds—(1) Exten-

sion agreements; consent of surety; collat-eral security. All surety bonds posted inimmigration cases shall be executed onForm I–352, a copy of which, and anyrider attached thereto, shall be fur-nished the obligor. A district directoris authorized to approve a bond, a for-mal agreement to extension of liabilityof surety, a request for delivery of col-lateral security to a duly appointedand undischarged administrator or ex-ecutor of the estate of a deceased de-positor, and a power of attorney exe-cuted on Form I–312. All other mattersrelating to bonds, including a power ofattorney not executed on Form I–312and a request for delivery of collateral


77


security to other than the depositor orhis approved attorney in fact, shall beforwarded to the regional commis-sioner for approval.

(2) Bond riders—(i) General. Bond rid-ers shall be prepared on Form I–351 andattached to Form I–352. If a conditionto be included in a bond is not on FormI–351, a rider containing the conditionshall be executed.

(ii) Condition against unauthorized em-ployment. A condition barring employ-ment shall be included in an appear-ance and delivery bond in connectionwith a deportation proceeding or bondposted for the release of an alien in ex-clusion proceedings, unless the INS de-termines that employment is appro-priate.

(iii) Factors to be considered. Onlythose aliens who upon applicationunder § 274a.12 of this chapter establishcompelling reasons for granting em-ployment authorization may be au-thorized to accept employment. Amongthe factors which may be consideredwhen an application is made, are thefollowing:

(A) Safeguarding employment oppor-tunities for United States citizens andlawful permanent resident aliens;

(B) Prior immigration violations bythe alien;

(C) Whether there is a reasonablebasis for considering discretionary re-lief; and

(D) Whether a United States citizenor lawful permanent resident spouse orchildren are dependent upon the alienfor support, or other equities exist.

(b) Acceptable sureties. Either a com-pany holding a certificate from theSecretary of the Treasury under 6U.S.C. 6–13 as an acceptable surety onFederal bonds, or a surety who depositscash or U.S. bonds or notes of the classdescribed in 6 U.S.C. 15 and TreasuryDepartment regulations issued pursu-ant thereto and which are not redeem-able within 1 year from the date theyare offered for deposit is an acceptablesurety.

(c) Cancellation—(1) Public chargebonds. A public charge bond posted foran immigrant shall be cancelled whenthe alien dies, departs permanentlyfrom the United States or is natural-ized, provided the immigrant did notbecome a public charge prior to death,

departure, or naturalization. The dis-trict director may cancel a publiccharge bond at any time if he/she findsthat the immigrant is not likely to be-come a public charge. A bond may alsobe cancelled in order to allow substi-tution of another bond. A public chargebond shall be cancelled by the districtdirector upon review following the fifthanniversity of the admission of the im-migrant, provided that the alien hasfiled Form I–356, Request for Cancella-tion of Public Charge Bond, and thedistrict director finds that the immi-grant did not become a public chargeprior to the fifth anniversary. If FormI–356 is not filed, the bond shall remainin effect until the form is filed and thedistrict director reviews the evidencesupporting the form and renders a deci-sion to breach or cancel the bond.

(2) Maintenance of status and depar-ture bonds. When the status of a non-immigrant who has violated the condi-tions of his admission has been ad-justed as a result of administrative orlegislative action to that of a perma-nent resident retroactively to a dateprior to the violation, any outstandingmaintenance of status and departurebond shall be canceled. If an applica-tion for adjustment of status is madeby a nonimmigrant while he is in law-ful temporary status, the bond shall becanceled if his status is adjusted tothat of a lawful permanent resident orif he voluntarily departs within any pe-riod granted to him. As used in thisparagraph, the term lawful temporarystatus means that there must not havebeen a violation of any of the condi-tions of the alien’s nonimmigrant clas-sification by acceptance of unauthor-ized employment or otherwise duringthe time he has been accorded suchclassification, and that from the dateof admission to the date of departureor adjustment of status he must havehad uninterrupted Service approval ofhis presence in the United States in theform of regular extensions of stay ordates set by which departure is tooccur, or a combination of both. Analien admitted as a nonimmigrantshall not be regarded as having vio-lated his nonimmigrant status by en-gaging in employment subsequent tohis proper filing of an application foradjustment of status under section 245


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8 CFR Ch. I (1–1–97 Edition)§ 103.7

of the Act and part 245 of this chapter.A maintenance of status and departurebond posted at the request of an Amer-ican consular officer abroad in behalfof an alien who did not travel to theUnited States shall be canceled uponreceipt of notice from an Americanconsular officer that the alien is out-side the United States and the non-immigrant visa issued pursuant to theposting of the bond has been canceledor has expired.

(3) Substantial performance. Substan-tial performance of all conditions im-posed by the terms of a bond shall re-lease the obligor from liability.

(d) Bond schedules—(1) Blanketbondsfor departure of visitors and transits. Theamount of bond required for variousnumbers of nonimmigrant visitors ortransits admitted under bond on FormsI–352 shall be in accordance with thefollowing schedule:

Aliens1 to 4—$500 each.5 to 9—$2,500 total bond.10 to 24—$3,500 total bond.25 to 49—$5,000 total bond.50 to 74—$6,000 total bond.75 to 99—$7,000 total bond.100 to 124—$8,000 total bond.125 to 149—$9,000 total bond.150 to 199—$10,000 total bond.200 or more—$10,000 plus $50 for each alien

over 200.

(2) Blanket bonds for importation ofworkers classified as nonimmigrantsunder section 101(a)(15)(H). The follow-ing schedule shall be employed by dis-trict directors when requiring employ-ers or their agents or representativesto post bond as a condition to import-ing alien laborers into the UnitedStates from the West Indies, the Brit-ish Virgin Islands, or from Canada:

Less than 500 workers—$15 each500 to 1,000 workers—$10 each1,000 or more workers—$5 each

A bond shall not be posted for less than$1,000 or for more than $12,000 irrespec-tive of the number of workers involved.Failure to comply with conditions ofthe bond will result in the employer’sliability in the amount of $200 as liq-uidated damages for each alien in-volved.

(e) Breach of bond. A bond is breachedwhen there has been a substantial vio-lation of the stipulated conditions. A

final determination that a bond hasbeen breached creates a claim in favorof the United States which may not bereleased or discharged by a Service of-ficer. The district director having cus-tody of the file containing the immi-gration bond executed on Form I–352shall determine whether the bond shallbe declared breached or cancelled, andshall notify the obligor on Form I–323or Form I–391 of the decision, and, ifdeclared breached, of the reasons there-for, and of the right to appeal in ac-cordance with the provisions of thispart.

[31 FR 11713, Sept. 7, 1966, as amended at 32FR 9622, July 4, 1967; 33 FR 5255, Apr. 2, 1968;33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23,1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334,Apr. 5, 1974; 40 FR 42852, Sept. 17, 1975; 48 FR51144, Nov. 7, 1983; 49 FR 24011, June 11, 1984;60 FR 21974, May 4, 1995]

§ 103.7 Fees.

(a) Remittances. (1) Fees prescribedwithin the framework of 31 U.S.C. 483ashall be submitted with any formal ap-plication or petition prescribed in thischapter and shall be in the amount pre-scribed by law or regulation. Except forfees remitted directly to the Board pur-suant to the provisions of § 3.8(a) of thischapter, any fee relating to any Execu-tive Office for Immigration Reviewproceeding shall be paid to, and accept-ed by, any Service office authorized toaccept fees. Payment of any fee underthis section does not constitute filingof the document with the Board orwith the Immigration Court. The Serv-ice shall return to the payer, at thetime of payment, a receipt for any feepaid. The Service shall also return tothe payer any documents, submittedwith the fee, relating to any Immigra-tion Judge proceeding. A charge of$30.00 will be imposed if a check in pay-ment of a fee is not honored by thebank on which it is drawn. Remit-tances must be drawn on a bank orother institution located in the UnitedStates and be payable in United Statescurrency. Fees in the form of postagestamps shall not be accepted. Remit-tances to the Service shall be madepayable to the ‘‘Immigration and Natu-ralization Service,’’ except that in case


79


of applicants residing in the Virgin Is-lands of the United States, the remit-tances shall be made payable to the‘‘Commissioner of Finance of the Vir-gin Islands’’ and, in the case of appli-cants residing in Guam, the remit-tances shall be made payable to the‘‘Treasurer, Guam.’’ If application tothe Service is submitted from outsidethe United States, remittance may bemade by bank international moneyorder or foreign draft drawn on a finan-cial institution in the United Statesand payable to the Immigration andNaturalization Service in UnitedStates currency. Remittances to theBoard shall be made payable to the‘‘United States Department of Jus-tice.’’

(2) A charge of $30.00 will be imposedif a check in payment of a fee, fine,penalty, and/or any other matter is nothonored by the bank or financial insti-tution on which it is drawn. A receiptissued by a Service officer for any suchremittance shall not be binding uponthe Service if the remittance is founduncollectible. Furthermore, credit formeeting legal and statutory deadlineswill not be deemed to have been met ifpayment is not made within 10 businessdays after notification by the Serviceof the dishonored check.

(b) Amounts of fees—(1) The followingfees and charges are prescribed:

For certification of true copies, each—$2.00For attestation under seal—$2.00DCL System Costs Fee. For use of a Dedi-

cated Commuter Lane (DCL) located atspecific Ports of Entry of the UnitedStates by an approved participant in a des-ignated vehicle—$80.00, with the maximumamount of $160.00 payable by a family (hus-band, wife, and minor children under 18years-of-age). Payable following approvalof the application but before use of theDCL by each participant. This fee is non-refundable, but may be waived by the dis-trict director. If a participant wishes to en-roll more than one vehicle for use in thePORTPASS system, he or she will be as-sessed with an additional fee of—$42 foreach additional vehicle enrolled.

Form EOIR–40. For filing application forsuspension of deportation under section 244of the Act—$100.00. (A single fee of $100.00will be charged whenever suspension of de-portation applications are filed by two ormore aliens in the same proceeding).

Form I–17. For filing an application forschool approval, except in the case of aschool or school system owned or operated

as a public educational institution or sys-tem by the United States or a state or po-litical subdivision thereof—$140.

Form I–68. For application for issuance ofthe Canadian Border Boat Landing Permitunder section 235 of the Act—$16.00. Themaximum amount payable by a family(husband, wife, unmarried children under21 years of age, parents of either husbandor wife) shall be $32.00.

Form I–90. For filing an application forAlien Registration Receipt Card (Form I–551) in lieu of an obsolete card or in lieu ofone lost, mutilated or destroyed, or in achanged name—$75.

Form I–94. For issuance of Arrival/Depar-ture Record at a land border Port-of-Entry—$6.00.

Form I–94W. For issuance of NonimmigrantVisa Waiver Arrival/Departure Form at aland border Port-of-Entry under section 217of the Act—$6.00.

Form I–102. For filing an application (FormI–102) for Arrival-Departure Record (FormI–94) or Crewman’s Landing (Form I–95), inlieu of one lost, mutilated, or destroyed—$65.

Form I–129. For filing a petition for a non-immigrant worker—If a petition withunnamed beneficiaries, a fee of $75 per peti-tion. If a petition with named bene-ficiaries, a base fee of $75 plus: —$10 perworker if requesting consulate or port-of-entry notification for visa issuance or ad-mission; —$80 per worker if requesting achange of status; or —$50 per worker if re-questing an extension of stay. If filing anextension of stay or change of status forone worker, dependents may be includedfor a fee of $10 per dependent.

Form I–129F. For filing petition to classifynonimmigrant as fiancee or fiance undersection 214(d) of the Act—$75.00.

Form I–129H. For filing a petition to clas-sify nonimmigrant as temporary worker ortrainee under section 214(c) of the Act—$80.00.

Form I–129L. Petition to employintracompany transferee—$80.00.

Form I–130. For filing a petition to classifystatus of alien relative for issuance of im-migrant visa under section 204(a) of theAct—$80.

Form I–131. For filing an application for is-suance of reentry permit—$70.

Form I–140. For filing a petition to classifypreference status of an alien on basis ofprofession or occupation under section204(a) of the Act—$75.

Form I–175. For issuance of NonresidentAlien Canadian Border Crossing Card(Form I–185)—$30.00.

Form I–190. For issuance of replacementNonresident Alien Mexican Border Cross-ing Card (Form I–586) in lieu of one lost,stolen, or mutilated—$26.00.


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8 CFR Ch. I (1–1–97 Edition)§ 103.7

Form I–191. For filing application for dis-cretionary relief under section 212(c) of theAct—$90.00.

Form I–192. For filing an application fordiscretionary relief under section 212(d)(3)of the Act, except, in an emergency case,or where the approval of the application isin the interest of the United States Gov-ernment—$90.

Form I–193. For filing an application forwaiver of passport and/or visa—$95.

Form I–212. For filing an application forpermission to reapply for an excluded ordeported alien, an alien who has fallen intodistress and has been removed as an alienenemy, or an alien who has been removedat Government expense in lieu of deporta-tion—$95.

Form I–246. For filing application for stayof deportation under part 243 of this chap-ter—$155.00

Form I–290A. For filing appeal from any de-cision under the immigration laws in anytype of proceedings (except a bond deci-sion) over which the Board of ImmigrationAppeals has appellate jurisdiction in ac-cordance with § 3.1(b) of this chapter. (Thefee of $110 will be charged whenever an ap-peal is filed by or on behalf of two or morealiens and the aliens are covered by one de-cision)—$110.00

Form I–290B. For filing an appeal from anydecision under the immigration laws inany type of proceeding over which theBoard of Immigration Appeals does nothave appellate jurisdiction. (The fee of $50will be charged whenever an appeal is filedby or on behalf of two or more aliens andthe aliens are covered by one decision)—$110.00

Form I–360. For filing a petition for anAmerasian, Widow(er), or Special Immi-grant—$80, except there is no fee for a peti-tion seeking classification as anAmerasian.

Form I–444. For issuance of a Mexican Bor-der Visitors Permit issued in conjunctionwith presentation of a Mexican BorderCrossing Card or multiple-entry B–1/B–2nonimmigrant visa to proceed for a periodof more than 72 hours but not more than 30days and to travel more than 25 miles fromthe Mexican border but within the 5-statearea of Arizona, California, Nevada, NewMexico, or Texas—$4.00. The maximumamount payable by a family (husband,wife, children under 21 years of age, andparents of either husband or wife) shall be$8.00.

Form I–485. For filing application for per-manent resident status or creation of arecord of lawful permanent residence—$130for an applicant 14 years of age or older;$100 for an applicant under the age of 14years.

Supplment A to Form I–485. Supplement toForm I–485 for persons seeking to adjust

status under the provisions of section 245(i)of the Act—$650.00, except that payment ofthis additional sum is not required whenthe applicant is an unmarried child who isless than 17 years of age, or when the appli-cant is the spouse or the unmarried childless than 21 years of age of a legalized alienand is qualified for and has applied for vol-untary departure under the family unityprogram.

Form I–485A. For filing application byCuban refugee for permanent residence—$120.00 for an applicant 14 years of age orolder; $95.00 for an applicant under the ageof 14 years.

Form I–506. For filing application forchange of nonimmigrant classificationunder section 248 of the Act—$70.00.

Form I–526. For filing a petition for analien enterpreneur—$155.

Form I–538. For filing application by a non-immigrant student (F–1) for an extensionof stay, a school transfer or permission toaccept or continue employment or prac-tical training—$70.00.

Form I–539. For filing an application to ex-tend or change nonimmigrant status—$75plus $10 per coapplicant.

Form I–570. For filing application for issu-ance or extension of refugee travel docu-ment—$45.00

Form I–600. For filing a petition to classifyorphan as an immediate relative for issu-ance of immigrant visa under section 204(a)of the Act. (When more than one petitionis submitted by the same petitioner on be-half of orphans who are brothers or sisters,only one fee will be required.)—$155.

Form I–600A. For filing an application foradvance processing of orphan petition.(When more than one petition is submittedby the same petitioner on behalf of or-phans who are brothers or sisters, only onefee will be required.—$155.

Form I–601. For filing an application forwaiver of ground of excludability undersection 212 (h) or (i) of the Act. (Only a sin-gle application and fee shall be requiredwhen the alien is applying simultaneouslyfor a waiver under both those sub-sec-tions.)—$95.

Form I–612. For filing an application forwaiver of the foreign-residence require-ment under section 212(e) of the Act—$95.

Form I–687. For filing application for statusas a temporary resident under section 245A(a) of the Immigration and Nationality Actas amended—to be remitted in the form ofa cashier’s check, certified bank check ormoney order. A fee of one hundred andeighty-five dollars ($185.00) for each appli-cation or fifty dollars ($50.00) for each ap-plication for a minor child (under 18 yearsof age) is required at the time of filingwith the Immigration and NaturalizationService. The maximum amount payable bya family (husband, wife, and any minor


81


children) shall be four hundred and twentydollars ($420.00).

Form I–690. For filing application for waiv-er for ground of excludability under sec-tion 212(a) of the Act as amended, in con-junction with the application under sec-tions 210 or 245A of the Act, or a petitionunder § 210A. A fee of thirty-five dollars($35.00) is to be remitted in the form of acashier’s check, certified bank check ormoney order.

Form I–694. For appealing the denial of ap-plication under sections 210 or 245A of theAct, or a petition under § 210A. A fee offifty dollars ($50.00) is to be remitted in theform of a cashier’s check, certified bankcheck or money order.

Form I–695. For filing application for re-placement of temporary resident card(Form I–688) to be remitted in the form ofa cashier’s check, certified bank check or amoney order—$15.00

Form I–698. For filing application for ad-justment from temporary resident statusto that of lawful permanent resident undersection 245A(b)(1) of the Act, as amended—to be remitted in the form of a cashier’scheck, certified bank check or moneyorder. For applicants filing within thirty-one months from the date of adjustment totemporary resident status, a fee of eightydollars ($80.00) for each application is re-quired at the time of filing with the Immi-gration and Naturalization Service. Themaximum amount payable by a family(husband, wife, and any minor children(under 18 years of age living at home))shall be two hundred and forty dollars—($240.00). For applicants filing after thirty-one months from the date of approval oftemporary resident status, who file theirapplications on or after July 9, 1991, a feeof $120.00 (a maximum of $360.00 per family)is required. The adjustment date is thedate of filing of the application for perma-nent residence or the applicant’s eligibilitydate, whichever is later.

Form I–700. For filing application for statusas a temporary resident under section210(a)(1) of the Act, as amended—to be re-mitted in the form of a cashier’s check,certified bank check or a money order. Afee of one hundred and eighty-five dollars($185.00) for each application or fifty dol-lars ($50.00) for each application for aminor child (under 18 years of age) is re-quired at the time of filing with the Immi-gration and Naturalization Service. Themaximum amount payable by a family(husband, wife, and any minor children)shall be four hundred and twenty dollars($420.00).

Form I–751. For filing a petition to removethe conditions on residence which is basedon marriage—$80.

Form I–765. For filing an application foremployment authorization pursuant to 8

CFR 274a.13—$70, unless otherwise noted onthe instructions attached to the applica-tion form.

Form I–805. For filing a petition for statusas a temporary resident under § 210A. A feeof one hundred and seventy-five dollars($175.00) for each petition, is to be remittedin the form of a cashier’s check, certifiedbank check or money order at the time offiling with the Immigration and Natu-ralization Service.

Form I–807. For filing a request for consid-eration as a replenishment agriculturalworker (RAW) during an announced periodof registration under 8 CFR 210a.3. A fee often dollars ($10.00) is to be remitted in theform of a cashier’s check, certified bankcheck or money order at the time of mail-ing to the Immigration and NaturalizationService.

Form I–817. For filing an application forvoluntary departure under the FamilyUnity Program—$80. The maximumamount payable by the members of a fam-ily filing their applications concurrentlyshall be $225.

Form I–821. For filing an initial applicationfor Temporary Protected Status under sec-tion 244A of the Act, as amended by theImmigration Act of 1990, to be remitted inthe form of a cashier’s check, certifiedbank check, or money order. The exactamount of the fee, not to exceed fifty dol-lars ($50.00), will be determined at the timea foreign state is designated for TemporaryProtected Status.

Form I–823. For application to aPORTPASS program under section 286 ofthe Act—$25.00, with the maximum amountof $50.00 payable by a family (husband,wife, and minor children under 18 years ofage). The application fee may be waived bythe district director. If fingerprints are re-quired, the inspector will inform the appli-cant of the current Federal Bureau of In-vestigation fee for conducting fingerprintchecks prior to accepting the applicationfee. Both the application fee (if not waived)and the fingerprint fee must be paid to theImmigration and Naturalization Servicebefore the application will be processed.The fingerprint fee may not be waived. Forreplacement of PORTPASS documentationduring the participation period—$25.00.

Form I–824. For filing for action on an ap-proved application or petition—$30.00.

Form I–829. For filing petition by entre-preneur to remove conditions—$90.00.

Form I–850. For filing an application forcertification as a designated fingerprintingservice—$370 plus $23 for each fingerprintcheck for initial certification; $200 for re-newal of certification; and $23 for each fin-gerprint check for adding or replacing em-ployees. No fee will be charged to policestations, military police or campus police


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8 CFR Ch. I (1–1–97 Edition)§ 103.7

1 Available from Immigration & Natu-ralization Service for years 1975 and before.Later editions are available from the UnitedStates Department of Transportation, con-tact: United States Department of Transpor-tation, Transportation Systems Center, Ken-dall Sqaure, Cambridge, MA 02142.

agencies registering pursuant to§ 103.2(e)(9).

Form N–300. For filing an application fordeclaration of intention—$75.

Form N–336. For filing request for hearingon a decision in naturalization proceedingsunder section 336 of the Act—$110.00

Form N–400. For filing an application fornaturalization—$95. For filing an applica-tion for naturalization under section 405 ofthe Immigration Act of 1990, if the appli-cant will be interviewed in the Phil-ippines—$120.

Form N–410. For filing motion for amend-ment of petition for naturalization whenmotion is for the convenience of the peti-tioner—$50.00

Form N–455. For filing application fortransfer of petition for naturalizationunder section 335(i) of the Act, except whentransfer is of a petition for naturalizationfiled under the Act of October 24, 1968, Pub.L. 90–633—$90.00.

Form N–470. For filing an application forsection 316(b) or 317 of the Act benefits—$115.

Form N–565. For filing an application for acertificate of naturalization or declarationof intention in lieu of a certificate or dec-laration alleged to have been lost, muti-lated, or destroyed; for a certificate of citi-zenship in a changed name under section343(b) or (d) of the Act; or for a special cer-tificate of naturalization to obtain rec-ognition as a citizen of the United Statesby a foreign state under section 343(c) ofthe Act—$65.

Form N–600. For filing an application forcertificate of citizenship under section309(c) or section 341 of the Act—$100.

Form N–643. For filing an application for acertificate of citizenship on behalf of anadopted child—$80.

Form N–644. For filing an application forposthumous citizenship—$80.

Motion. For filing a motion to reopen or re-consider any decision under the immigra-tion laws in any type of proceeding overwhich the Board of Immigration Appealshas appellate jurisdiction. No fee shall becharged for a motion to reopen or recon-sider a decision on an application for relieffor which no fee is chargeable. (The fee of$110 shall be charged whenever an appeal ormotion is filed by or on behalf of two ormore aliens and all such aliens are coveredby one decision. When a motion to reopenor reconsider is made concurrently withany application for relief under the immi-gration laws for which a fee is chargeable,the fee of $110 will be charged when themotion is filed and, if the motion is grant-ed, the requisite fee for filing the applica-tion for relief will be charged and must bepaid within the time specified in order tocomplete the application.)—$110.

Motion. For filing a motion to reopen or re-consider any decision under the immigra-tion laws in any type of proceeding overwhich the Board of Immigration Appealsdoes not have appellate jurisdiction. No feeshall be charged for a motion to reopen orreconsider a decision on an application forrelief for which no fee is chargeable. (Thefee of $110 shall be charged whenever an ap-peal or motion is filed by or on behalf oftwo or more aliens and all such aliens arecovered by one decision. When a motion toreopen or reconsider is made concurrentlywith any application for relief under theimmigration laws for which a fee is charge-able, the fee of $110 will be charged whenthe motion is filed and, if the motion isgranted, the requisite fee for filing the ap-plication for relief will be charged andmust be paid within the time specified inorder to complete the application.)—$110.

Request. For special statistical tabulationsa charge will be made to cover the cost ofthe work involved—Cost

Request. For set of monthly, semiannual,or annual tables entitled ‘‘Passenger Trav-el Reports via Sea and Air’’ 1—$7.00

Request. For classification of a citizen ofCanada to be engaged in business activitiesat a professional level pursuant to section214(e) of the Act (Chapter 16 of the NorthAmerican Free Trade Agreement)—$50.00

Request. For requesting authorization forparole of an alien into the United States—$65.00.

(2) Fees for production or disclosureof records under 5 U.S.C. 552 shall becharged in accordance with the regula-tions of the Department of Justice, 28CFR 16.10.

(c) Waiver of fees. (1) Except as other-wise provided in this paragraph and in§ 3.3(b) of this chapter, any of the feesprescribed in paragraph (b) of this sec-tion relating to applications, petitions,appeals, motions, or requests may bewaived by the Immigration Judge inany case under his/her jurisdiction inwhich the alien or other party affectedis able to substantiate that he or she isunable to pay the prescribed fee. Theperson seeking a fee waiver must filehis or her affidavit, or unsworn dec-laration made pursuant to 28 U.S.C.1746, asking for permission to prosecute


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without payment of fee of the appli-cant, petition, appeal, motion, or re-quest, and stating his or her belief thathe or she is entitled to or deserving ofthe benefit requested and the reasonsfor his or her inability to pay. The offi-cer of the Service having jurisdictionto render a decision on the application,petition, appeal, motion, or requestmay, in his discretion, grant the waiv-er of fee. Fees for ‘‘Passenger TravelReports via Sea and Air’’ and for spe-cial statistical tabulations may not bewaived. The payment of the additionalsum prescribed by section 245(i) of theAct when applying for adjustment ofstatus under section 245 of the Act maynot be waived except as directed in sec-tion 245(i) of the Act.

(2) Fees under the Freedom of Infor-mation Act, as amended, may bewaived or reduced where the Servicedetermines such action would be in thepublic interest because furnishing theinformation can be considered as pri-marily benefiting the general public.

(3) When the prescribed fee is forservices to be performed by the clerk ofcourt under section 344(a) of the Act,the affidavit for waiver of the fee shallbe filed with the district director or of-ficer in charge of the Service havingadministrative jurisdiction over theplace in which the court is located atleast 7 days prior to the date the fee isrequired to be paid. If the waiver isgranted, there shall be delivered to theclerk of court by a Service representa-tive on or before the date the fee is re-quired to be paid, a notice prepared onService letterhead and signed by theofficer granting the waiver, that thefee has been waived pursuant to thisparagraph.

(4) Fees for applications for Tem-porary Protected Status may be waivedpursuant to 8 CFR 240.20.

(d) Authority to certify records. When-ever authorized under 5 U.S.C. 552 orany other law to furnish informationfrom records to persons entitled there-to, the following officials, or their des-ignees authorized in writing as speci-fied below, have authority to make cer-tification, as follows:

(1) The Associate Commissioner, In-formation Systems, the Assistant Com-missioner, Records Systems Division,the Director, Records Management

Branch, or their designee, authorizedin writing to make certification intheir absence—copies of files, docu-ments, and records in the custody ofthe Central Office.

(2) A regional commissioner, or dis-trict director, or the designee of either,authorized in writing to make certifi-cation in his absence—copies of files,documents, and records in the custodyof his office.

(3) The Immigration and Naturaliza-tion Service Program Coordinator, ElPaso Intelligence Center, or the des-ignee, authorized in writing to makecertification in event of the ProgramCoordinator’s absence—copies of files,documents, and records of the Immi-gration and Naturalization Service inthe custody of that office.

(4) The Assistant Commissioner,Records Systems Division, the Direc-tor, Records Management Branch, orthe Chief, Records Operations Section,Central Office, or their designee, au-thorized in writing to make certifi-cation in their absence—the non-exist-ence of an official Service records.

[38 FR 35296, Dec. 27, 1973]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 103.7, see the List of CFRSections Affected in the Finding Aids sec-tion of this volume.

§ 103.8 Definitions pertaining to avail-ability of information under theFreedom of Information Act.

Sections 103.8, 103.9, and 103.10 of thispart comprise the Service regulationsunder the Freedom of Information Act,5 U.S.C. 552. These regulations supple-ment those of the Department of Jus-tice, 28 CFR part 16, subpart A. As usedin this part the following definitionsshall apply:

(a) The term access means providing acopy of the record requested or afford-ing the opportunity for an in-person re-view of the original record or a copythereof. The determination to permitan in-person review is discretionaryand will only be made when specifi-cally requested. Whenever providingin-person access will unreasonably dis-rupt the normal operations of an office,the requester may be sent a copy of therequested records that are nonexemptin lieu of the in-person review.


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8 CFR Ch. I (1–1–97 Edition)§ 103.9

(b) The term decision means a finalwritten determination in a proceedingunder the Act accompanied by a state-ment of reasons. Orders made by checkmarks, stamps, or brief endorsementswhich are not supported by a reasonedexplanation, or those incorporatingpreprinted language on Service formsare not decisions.

(c) The term records includes recordsof proceedings, documents, reports, andother papers maintained by the Serv-ice.

(d) The term record of proceeding isthe official history of any hearing, ex-amination, or proceeding before theService, and in addition to the applica-tion, petition or other initiating docu-ment, includes the transcript of hear-ing or interview, exhibits, and anyother evidence relied upon in the adju-dication; papers filed in connectionwith the proceedings, including mo-tions and briefs; the Service officer’sdetermination; notice of appeal or cer-tification; the Board or other appellatedetermination; motions to reconsideror reopen; and documents submitted insupport of appeals, certifications, ormotions.

[32 FR 9623, July 4, 1967, as amended at 40 FR7236, Feb. 19, 1975; 52 FR 2942, Jan. 29, 1987; 58FR 31148, June 1, 1993]

§ 103.9 Availability of decisions and in-terpretive material under the Free-dom of Information Act.

(a) Precedent decisions. There may bepurchased from the Superintendent ofDocuments, U.S. Government PrintingOffice, Washington, DC 20402, boundvolumes of designated precedent deci-sions entitled ‘‘Administrative Deci-sions Under Immigration and National-ity Laws of the United States,’’ eachcontaining a cumulative index. Priorto publication in volume from currentprecedent decisions, known as interimdecisions, are obtainable from the Su-perintendent of Documents on a singlecopy or yearly subscription basis.Bound volumes and current precedentdecisions may be read at principalService offices.

(b) Unpublished decisions. Each dis-trict director in the United States willmaintain copies of unpublished Serviceand Board decisions relating to pro-ceedings in which the initial decision

was made in his district. Each regionalcommissioner will maintain copies ofunpublished decisions made by him.The Central Office will maintain copieson a national basis of unpublishedService decisions.

(c) Deletion of identifying details. Tothe extent that information in deci-sions is exempt from disclosure underthe Freedom of Information Act (5U.S.C. 552), the deciding officer shallprovide for deletion of identifying de-tails, as appropriate, from copies of de-cisions made available to the public.

(d) Statements of policy, interpretations,manuals, instructions to staff. State-ments of policy, interpretations, andthose manuals and instructions to staff(or portions thereof), affecting the pub-lic, will be made available at districtoffices in the United States and at theCentral Office with an accompanyingindex of any material which is issuedon or after July 4, 1967.

(e) Public reading rooms. The CentralOffice and each district office in theUnited States will provide a readingroom or reading area where the mate-rial described in this section will bemade available to the public. Addi-tional material will be made availablein the public reading rooms, includingthe immigration and nationality laws,title 8 of the United States Code Anno-tated, title 8 of the Code of FederalRegulations—Chapter I, a complete setof the forms listed in parts 299 and 499of this chapter, and the Department ofState Foreign Affairs Manual, Volume9—Visas. Fees will not be charged forproviding access to any of these mate-rials, but fees in accordance with§ 103.7(b) will be charged for furnishingcopies.

[32 FR 9623, July 4, 1967, as amended at 36 FR20151, Oct. 16, 1971; 40 FR 7237, Feb. 19, 1975;48 FR 49652, Oct. 27, 1983]

§ 103.10 Requests for records underthe Freedom of Information Act.

(a) Place and manner of requestingrecords—(1) Place. Records should be re-quested from the office that maintainsthe records sought, if known, or fromthe Headquarters of the Immigrationand Naturalization Service, 425 IStreet, NW., Washington, DC 20536.


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Records are maintained in the Head-quarters, regional offices, service cen-ters, district offices and the followingsuboffices: Agana, Guam; Albany, NY;Charlotte, NC; Cincinnati, OH; Hart-ford, CT; Indianapolis, IN; Las Vegas,NV; Louisville, KY; Memphis, TN; Mil-waukee, WI; Norfolk, VA; Pittsburgh,PA; Providence, RI; Reno, NV; St.Louis, MO; Salt Lake City, UT; Spo-kane, WA; and St. Albans, VT. In cer-tain cases, a district director may des-ignate another Service office as a filecontrol office. For locations of theService’s regional offices, service cen-ters, district offices, and sub-offices see8 CFR 100.4.

(2) Manner of requesting records. AllFreedom of Information Act requestsmust be in writing. Requests may besubmitted in person or by mail. If a re-quest is made by mail, both the enve-lope and its contents must be clearlymarked: ‘‘FREEDOM OF INFORMA-TION REQUEST’’ or ‘‘INFORMATIONREQUEST.’’ Any request for informa-tion not marked and addressed as spec-ified will be so marked by Service per-sonnel as soon as it is properly identi-fied and shall be forwarded imme-diately to the appropriate office des-ignated to control Freedom of Informa-tion Act requests. A request will not bedeemed to have been received for pur-poses of the time period under 5 U.S.C.552(a)(6) until the request has been re-ceived by the appropriate office, orwould have been received with the ex-ercise of due diligence by Service per-sonnel. Service Form G–639, Freedomof Information/Privacy Act Request,may be used for rapid identification asa Freedom of Information matter andto ensure expeditous handling; how-ever, a request may be submitted inany written form. Each request madeunder this section pertaining to theavailability of a record must describethe record with sufficient specificitywith respect to names, dates, subjectmatter and location to permit it to beidentified and located. A request for allrecords falling within a reasonably spe-cific category shall be regarded as rea-sonably described if the description en-ables the records to be identified byany process not unreasonably burden-some. If it is determined that the re-quest does not reasonably describe the

records sought, the response rejectingthe request on that ground shall speci-fy the reason why the request failed tomeet requirements and shall extend tothe requester an opportunity to conferwith Service personnel to reformulatethe request. Individuals seeking accessto records about themselves by mailshall establish their identity by sub-mitting a notarized signature alongwith their address, date of birth, placeof birth, and alien or employee identi-fication number if applicable.

(b) Authority to grant and deny re-quests—(1) Grant or deny. The AssociateCommissioner for Information Re-sources Management, regional admin-istrators, district directors, servicecenter directors, and heads of sub-offices specified in paragraph (a)(1) ofthis section, or their designees, maygrant or deny requests under exemp-tions in 5 U.S.C. 552 (b) and (c).

(2) [Reserved](3) Authority to state that a record can-

not be located or does not exist. The headof any office specified in paragraph(a)(1) of this section has authority tonotify a requester that a record cannotbe located from the information sup-plied, or is known to have been de-stroyed or otherwise disposed of.

(c) Prompt response—(1) Response with-in 10 days. Within 10 days (excludingSaturdays, Sundays, and legal holi-days) of the receipt of a request by theService (or in the case of an improperlyaddressed request, of its receipt by theappropriate office as specified in para-graph (a) of this section), the author-ized Service official shall either com-ply with or deny the request unless anextension of time is requested as re-quired under 28 CFR 16.1(d). A requestimproperly addressed will not bedeemed to have been received for pur-poses of 5 U.S.C 552 (a)(6) until it hasbeen or would have been received bythe appropriate office with the exerciseof due diligence by Service personnel.

(2) Treatment of delay as a denial. If nosubstantive reply is made at the end ofthe 10 working day period, and anyproperly invoked extension period, re-questers may deem their request to bedenied and exercise their right to ap-peal in accordance with 28 CFR 16.8 andparagraph (d)(3) of this section.


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8 CFR Ch. I (1–1–97 Edition)§ 103.11

(d) Disposition of requests—(1) Form ofgrant. When a requested record is avail-able, the responsible office shall notifythe requester when and where therecord will be available. The notifica-tion shall also advise the requester ofany applicable fees under 28 CFR 16.10.The Service shall have fulfilled itsduty to grant access whenever it pro-vides a copy of the record, or, at itsdiscretion, makes the original recordor a copy available for in-person reviewin response to an express request forsuch review. In-person review is discre-tionary and shall not be granted whendoing so would unreasonably disruptthe normal operations of a Service of-fice.

(2) Form of denial. A reply denying awritten request for a record in whole orin part shall be in writing, signed byone of the officials specified in para-graph (b)(1) of this section. The replyshall include a reference to the specificexemption under the Freedom of Infor-mation Act authorizing withholding ofthe records. The notice of denial shallcontain a brief explanation of how theexemption applies to the record with-held and, if the deciding official consid-ers it appropriate, a statement of whythe exempt record is being withheld.The notice of denial shall include astatement of the right of appeal to theAttorney General under 28 CFR 16.8,and that judicial review will thereafterbe available in the district in which therequester resides or has a principleplace of business, or the district inwhich the agency records are situated,or the District of Columbia.

(3) Right of appeal. When a request forrecords has been denied in whole or inpart, the requester may, within 30 daysof its receipt, appeal the denial to theAssistant Attorney General, Office ofLegal Policy, (Attention: Office of In-formation and Privacy), Department ofJustice, Washington, DC 20530. Boththe envelope and letter must be clearlymarked: ‘‘FREEDOM OF INFORMA-TION APPEAL’’ or ‘‘INFORMATIONAPPEAL.’’

(e) Agreement to pay fees. In accord-ance with 28 CFR 16.3(c) a requesterautomatically agrees to pay fees up to$25.00 by filing a Freedom of Informa-tion Act request unless a waiver or re-duction of fees is sought. Accordingly,

all letters of acknowledgment mustconfirm the requester’s obligation topay.

[40 FR 7237, Feb. 19, 1975, as amended at 41FR 34938, Aug. 18, 1976; 42 FR 15408, March 22,1977; 43 FR 22332, May 25, 1978; 44 FR 23514,Apr. 20, 1979; 48 FR 49652, Oct. 27, 1983; 48 FR51430, Nov. 9, 1983; 52 FR 2942, Jan. 29, 1987; 58FR 31148, 31149, June 1, 1993]

§ 103.11 Business information.

Business information provided to theService by a business submitter shallnot be disclosed pursuant to a Freedomof Information Act request except inaccordance with 28 CFR 16.7.

[58 FR 31149, June 1, 1993]

§ 103.12 Definition of the term ‘‘law-fully present’’ aliens for purposes ofapplying for Title II Social Securitybenefits under Public Law 104–193.

(a) Definition of the term an ‘‘alien whois lawfully present in the United States.’’For the purposes of section 401(b)(2) ofPub. L. 104–193 only, an ‘‘alien who islawfully present in the United States’’means:

(1) A qualified alien as defined in sec-tion 431(b) of Pub. L. 104–193;

(2) An alien who has been inspectedand admitted to the United States andwho has not violated the terms of thestatus under which he or she was ad-mitted or to which he or she haschanged after admission;

(3) An alien who has been paroledinto the United States pursuant to sec-tion 212(d)(5) of the Act for less than 1year, except:

(i) Aliens paroled for deferred inspec-tion or pending exclusion proceedingsunder 236(a) of the Act; and

(ii) Aliens paroled into the UnitedStates for prosecution pursuant to 8CFR 212.5(a)(3);

(4) An alien who belongs to one of thefollowing classes of aliens permitted toremain in the United States becausethe Attorney General has decided forhumanitarian or other public policyreasons not to initiate deportation orexclusion proceedings or enforce depar-ture:

(i) Aliens currently in temporaryresident status pursuant to section 210or 245A of the Act;


87


(ii) Aliens currently under Tem-porary Protected Status (TPS) pursu-ant to section 244A of the Act;

(iii) Cuban-Haitian entrants, as de-fined in section 202(b) Pub. L. 99–603, asamended;

(iv) Family Unity beneficiaries pur-suant to section 301 of Pub. L. 101–649,as amended;

(v) Aliens currently under DeferredEnforced Departure (DED) pursuant toa decision made by the President;

(vi) Aliens currently in deferred ac-tion status pursuant to Service Oper-ations Instructions at OI 242.1(a)(22);

(vii) Aliens who are the spouse orchild of a United States citizen whosevisa petition has been approved andwho have a pending application for ad-justment of status;

(5) Applicants for asylum under sec-tion 208(a) of the Act and applicants forwithholding of deportation under sec-tion 243(h) of the Act who have beengranted employment authorization,and such applicants under the age of 14who have had an application pendingfor at least 180 days.

(b) Non-issuance of an Order to ShowCause and non-enforcement of deporta-tion and exclusion orders. An alien maynot be deemed to be lawfully presentsolely on the basis of the Service’s de-cision not to, or failure to, issue anOrder to Show Cause or solely on thebasis of the Service’s decision not to,or failure to, enforce an outstandingorder of deportation or exclusion.

[61 FR 47041, Sept. 6, 1996]

§ 103.20 Purpose and scope.(a) Sections 103.20 through 103.36

comprise the regulations of the Serviceimplementing the Privacy Act of 1974,Public Law 93–597. The regulationsapply to all records contained in sys-tems of records maintained by theService which are identifiable by indi-vidual name or identifier and which areretrieved by individual name or identi-fier, except those personnel recordsgoverned by regulations of the Office ofPersonnel Management. The regula-tions set forth the procedures by whichindividuals may seek access to recordspertaining to themselves and requestcorrection of those records. The regula-tions also set forth the requirementsapplicable to Service employees main-

taining, collecting, using or dissemi-nating such records.

(b) The Associate Commissioner, In-formation Systems, shall ensure thatthe provisions of §§ 103.20 through 103.36of this title and 28 CFR 16.40 through16.58, and any revisions, are brought tothe attention of and made available to:

(1) Each employee at the time of issu-ance of the regulations and at the timeof any amendments; and

(2) Each new employee at the time ofemployment.

(c) The Associate Commissioner, In-formation Systems, shall be respon-sible for ensuring that employees ofthe Service are trained in the obliga-tions imposed by the Privacy Act of1974 (5 U.S.C 522a) and by these regula-tions.

[40 FR 44481, Sept. 26, 1975, as amended at 48FR 49652, Oct. 27, 1983; 58 FR 31149, June 1,1993]

§ 103.21 Access by individuals torecords maintained about them.

(a) Access to available records. An indi-vidual who seeks access to recordsabout himself or herself in a system ofrecords must submit a written requestin person or by mail to the Freedom ofInformation/Privacy Act Officer at thelocation where the records are main-tained. If the location is unknown, therequest may be submitted to the near-est Service office or to the Head-quarters FOIA/PA Officer, 425 I Street,NW., Washington, DC 20536. The outsideof the envelope should be marked ‘‘Pri-vacy Act Request.’’ A Form G–639,Freedom of Information/Privacy ActRequest may be used for convenienceand to facilitate identification of therecord requested. However, a requestmay be made in any written form andshould clearly identity the recordsought by the name and any other per-sonal identifiers for the individual(such as the alien file number or SocialSecurity Account Number), date andplace of birth, and type of file in whichthe record is believed to be located.

(b) Verification of identity. The follow-ing standards are applicable to any in-dividual who requests records concern-ing himself, unless other provisions foridentity verification are specified inthe published notice pertaining to theparticular system of records.


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8 CFR Ch. I (1–1–97 Edition)§ 103.22

(1) An individual seeking access torecords about himself in person shallestablish his identity by the presen-tation of a single document bearing aphotograph (such as a passport, alienregistration receipt card or identifica-tion badge) or by the presentation oftwo items of identification which donot bear a photograph but do bear botha name and address (such as a driver’slicense, or credit card).

(2) Individuals seeking access torecords about themselves by mail shallestablish their identify by submitting anotarized signature along with theiraddress, date of birth, place of birth,and alien or employee identificationnumber if applicable. Form DOJ 361,Certification of Identity, may be ob-tained from any Service office and usedto obtain the notarized signature need-ed to verify identity.

(c) Verification of guardianship. Theparent or guardian of a child or of aperson judicially determined to be in-competent and seeking to act on behalfof such child or incompetent, shall, inaddition to establishing his own iden-tity, establish the identity of the childor other person he represents as re-quired in paragraph (b) of this section,and establish his own parentage orguardianship of the subject of therecord by furnishing either a copy of abirth certificate showing parentage ora court order establishing the guard-ianship.

(d) Accompanying persons. An individ-ual seeking to review records pertain-ing to himself may be accompanied byanother individual of his own choosing.Both the individual seeking access andthe individual accompanying him shallbe required to sign the required formindicating that the Service is author-ized to discuss the contents of the sub-ject record in the presence of both indi-viduals.

(e) Specification of records sought. Re-quests for access to records, either inperson or by mail, shall describe thenature of the records sought, the ap-proximate dates covered by the record,the system in which it is thought to beincluded as described in the ‘‘Notice ofSystems of Records’’ published in theFEDERAL REGISTER, and the identity ofthe individual or office of the Servicehaving custody of the system of

records. In addition, the published ‘‘No-tice of Systems of Records’’ for individ-ual systems may include further re-quirements of specification, where nec-essary, to retrieve the individualrecord from the system.

(f) Agreement to pay fees. In accord-ance with 28 CFR 16.3(c) a requesterautomatically agrees to pay fees up to$25.00 by filing a Privacy Act requestunless a waiver or reduction of fees issought. Accordingly, all letters of ac-knowledgement must confirm the re-quester’s obligation to pay.

[40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct.6, 1975, as amended at 42 FR 33025, June 29,1977; 48 FR 49653, Oct. 27, 1983; 58 FR 31149,June 1, 1993]

§ 103.22 Records exempt in whole or inpart.

(a) When individuals request recordsabout themselves which are exemptfrom access pursuant to the PrivacyAct exemptions in 5 U.S.C. 552a(d)(5),(j) or (k), their requests shall also beconsidered under the Freedom of Infor-mation Act, 5 U.S.C. 552, and, unlessthe records are exempt under bothActs, the request shall be granted. Ifexemptions under both Acts permit thedenial of the records sought and thereis good reason to invoke the exemp-tions, the individual shall be provided adenial of his/her request in writingwith the governing exemptions cited. Ifthe disclosure of the existence of acriminal law enforcement proceedingrecord could itself interfere with apending law enforcement proceeding ofwhich there is reason to believe thesubject is unaware, the Service may,during only such time as the cir-cumstance continues, treat the recordsas not subject to the requirements of 5U.S.C. 552.

(b) Individual requests for access torecords which have been exemptedfrom access pursuant to 5 U.S.C.552a(k) shall be processed as follows:

(1) A request for information classi-fied by the Service under ExecutiveOrder 12356 on National Security Informa-tion requires the Service to review theinformation to determine whether itcontinues to warrant classificationunder the criteria of the ExecutiveOrder. Information which no longer


89


warrants classification shall be declas-sified and made available to the indi-vidual, if not otherwise exempt. If theinformation continues to warrant clas-sification, the individual shall be ad-vised that the information sought isclassified; that it has been reviewedand continues to warrant classifica-tion; and that it has been exemptedfrom access under 5 U.S.C. 552a(k)(1).Information which has been exemptedunder 5 U.S.C. 552a(j) and which is alsoclassified, shall be reviewed as requiredby this paragraph but the response tothe individual shall be in the form pre-scribed by paragraph (a) of this section.

(2) Requests for information whichhas been exempted from disclosure pur-suant to 5 U.S.C. 552a(k)(2) shall be re-sponded to in the manner provided inparagraph (a) of this section unless areview of the information indicatesthat the information has been used oris being used to deny the individualany right, privilege or benefit forwhich he is eligible or to which hewould otherwise be entitled under Fed-eral law. In that event, the individualshall be advised of the existence of therecord and shall be provided the infor-mation except to the extent it wouldidentify a confidential source. If andonly if information identifying a con-fidential source can be deleted or thepertinent parts of the record summa-rized in a manner which protects theidentity of the confidential source, thedocument with deletions made or thesummary shall be furnished to the re-quester.

(3) Information compiled as part ofan employee background investigationwhich has been exempted pursuant to 5U.S.C. 552a(k)(5) shall be made avail-able to an individual upon request ex-cept to the extent that it identifies aconfidential source. If and only if infor-mation identifying a confidentialsource can be deleted or the pertinentparts of the record summarized in amanner which protects the identity ofthe confidential source, the documentwith deletions made or the summaryshall be furnished to the requester.

(4) Testing or examination materialwhich has been exempted pursuant to 5U.S.C. 552a(k)(6) shall not be madeavailable to an individual if disclosurewould compromise the objectivity or

fairness of the testing or examinationprocess but shall be made available ifno such compromise possibility exists.

(5) The Service records which are ex-empted and the reasons for the exemp-tions are enumerated in 28 CFR 16.99.

[40 FR 44481, Sept. 26, 1975, as amended at 48FR 49653, Oct. 27, 1983; 58 FR 31149, June, 1,1993]

§ 103.23 Special access procedures.(a) Records of other agencies. When in-

formation sought from a system ofrecords of the Service includes infor-mation from other agencies or compo-nents of the Department of Justicethat has been classified under Execu-tive Order 12356, the request and the re-quested documents shall be referred tothe appropriate agency or other compo-nent for classification review and proc-essing. Only with the consent of the re-sponsible agency or component, maythe requester be informed of the refer-ral as specified in section 3.4(f) of E.O.12356.

(b) Medical records. When an individ-ual requests medical records concern-ing himself, which are not otherwiseexempt from disclosure, the respon-sible official as specified in § 103.10(a) ofthis part shall, if deemed necessary, ad-vise the individual that records will beprovided only to a physician designatedin writing by the individual. Upon re-ceipt of the designation, the respon-sible official as specified in § 103.10(a) ofthis part will permit the physician toreview the records or to receive copiesof the records by mail, upon proper ver-ification of identity. The determina-tion of which records should be madeavailable directly to the individual andwhich records should not be disclosedbecause of possible harm to the indi-vidual shall be made by the physician.

[40 FR 44481, Sept. 26, 1975, as amended at 48FR 49653, Oct. 27, 1983; 58 FR 31149, 31150,June, 1, 1993]

§ 103.24 Requests for accounting ofrecord disclosure.

At the time of his request for accessor correction or at any other time, anindividual may request an accountingof disclosures made of his record out-side the Department of Justice. Re-quests for accounting shall be directedto the appropriate responsible official


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8 CFR Ch. I (1–1–97 Edition)§ 103.25

as specified in § 103.10(a) of this partlisted in the ‘‘Notice of Systems ofRecords’’. Any available accounting,whether kept in accordance with therequirements of the Privacy Act orunder procedures established prior toSeptember 27, 1975, shall be made avail-able to the individual except that anaccounting need not be made availableif it relates to: (a) A disclosure with re-spect to which no accounting need bekept (see § 103.30(c) of this part); (b) Adisclosure made to a law enforcementagency pursuant to 5 U.S.C. 552a(b)(7);(c) An accounting which has been ex-empted from disclosure pursuant to 5U.S.C. 552a (j) or (k).

[40 FR 44481, Sept. 26, 1975, as amended at 58FR 31150, June 1, 1993]

§ 103.25 Notice of access decisions;time limits.

(a) Responsibility for notice. The re-sponsible official as specified in§ 103.10(a) of this part has responsibilityfor determining whether access torecords is available under the PrivacyAct and for notifying the individual ofthat determination in accordance withthese regulations. If access is deniedbecause of an exemption, the respon-sible person shall notify the individualthat he may appeal that determinationto the Deputy Attorney General withinthirty working days of the receipt ofthe determination.

(b) Time limits for access determina-tions. The time limits provided by 28CFR 16.1(d) shall be applicable to re-quests for access to information pursu-ant to the Privacy Act of 1974.


§ 103.26 Fees for copies of records.The fees charged by the Service

under the Privacy Act shall be thosespecified in 28 CFR 16.47. Remittancesshall be made in accordance with§ 103.7(a) of this part.


§ 103.27 Appeals from denials of ac-cess.

An individual who has been deniedaccess by the Service to the recordsconcerning him may appeal that deci-

sion in the manner prescribed in 28CFR 16.48.


§ 103.28 Requests for correction ofrecords.

(a) How made. A request for amend-ment or correction is made by the indi-vidual concerned, either in person orby mail, by addressing the written re-quest to the FOIA/PA Officer at the lo-cation where the record is maintained.The requester’s identity must be estab-lished as provided in § 103.21 of thispart. The request must indicate theparticular record involved, the natureof the correction sought, and the jus-tification. A request made by mailshould be addressed to the FOIA/PA Of-ficer at the location where the systemof records is maintained and the re-quest and envelope must be clearlymarked ‘‘Privacy Correction Request.’’Where the requester cannot determinethe precise location of the system ofrecords or believes that the samerecord appears in more than one sys-tem, the request may be addressed tothe Headquarters FOIA/PA Officer, Im-migration and Naturalization Service,425 I Street, NW., Washington, DC20536. That officer will assist the re-quester in identifying the location ofthe records.

(b) Initial determination. Within 10working days of the receipt of the re-quest, the appropriate Service officialshall advise the requester that the re-quest has been received. If a correctionis to be made, the requester shall beadvised of the right to obtain a copy ofthe corrected record upon payment ofthe standard fee, established in 28 CFR16.47. If a correction or amendment isrefused, in whole or in part, the re-quester shall be given the reasons andadvised of the right to appeal to theAssistant Attorney General under 28CFR 16.50.

(c) Appeals. A refusal, in whole or inpart, to amend or correct a record maybe appealed as provided in 28 CFR 16.50.

(d) Appeal determinations. 28 CFR 16.50provides for appeal determinations.

(e) Statements of disagreement. State-ments of disagreement may be fur-nished by the individual in the mannerprescribed in 28 CFR 16.50.


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(f) Notices of correction or disagreement.When a record has been corrected, theresponsible official as specified in§ 103.10(a) of this part shall, within thir-ty working days thereof, advise allprior recipients of the record whoseidentity can be determined pursuant tothe accounting required by the PrivacyAct or any other accounting previouslymade, of the correction. Any dissemi-nation of a record after the filing of astatement of disagreement shall be ac-companied by a copy of that state-ment. Any statement of the Servicegiving reasons for refusing to correctshall be included in the file.

[40 FR 44481, Sept. 26, 1975, as amended at 48FR 49653, Oct. 27, 1983; 48 FR 51431, Nov. 9,1983; 58 FR 31150, June, 1, 1993]

§ 103.29 Records not subject to correc-tion.

The following records are not subjectto correction or amendment by individ-uals:

(a) Transcripts or written statementsmade under oath;

(b) Transcripts of Grand Jury Pro-ceedings, judicial or quasi-judicial pro-ceedings which form the official recordof those proceedings;

(c) Pre-sentence reports comprisingthe property of the courts but main-tained in Service files; and

(d) Records duly exempted from cor-rection by notice published in the FED-ERAL REGISTER.

§ 103.30 Accounting for disclosures.(a) An accounting of each disclosure

of information for which accounting isrequired (see § 103.24 of this part) shallbe attached to the relating record. Acopy of Form G–658, Record of Informa-tion Disclosure (Privacy Act), or otherdisclosure document shall be used forthis accounting. The responsible offi-cial as specified in § 103.10(a) of thispart shall advise the requester,promptly upon request as described in§ 103.24, of the persons or agencies out-side the Department of Justice towhich records concerning the requesterhave been disclosed.

(b) Accounting records, at a mini-mum, shall include the identificationof the particular record disclosed, thename and address of the person oragency to which disclosed, and the date

of the disclosure. Accounting recordsshall be maintained for at least 5 years,or until the record is destroyed ortransferred to the Archives, whicheveris later.

(c) Accounting is not required to bekept for disclosures made within theDepartment of Justice or disclosuresmade pursuant to the Freedom of In-formation Act.

[40 FR 44481, Sept. 26, 1975, as amended at 48FR 49653, Oct. 27, 1983; 58 FR 31150, June, 1,1993]

§ 103.31 Notices of subpoenas andemergency disclosures.

(a) Subpoenas. When records concern-ing an individual are subpoenaed by aGrand Jury, court, or a quasijudicialagency, the official served with thesubpoena shall be responsible for assur-ing that notice of its issuance is pro-vided to the individual. Notice shall beprovided within 10 days of the serviceof the subpoena or, in the case of aGrand Jury subpoena, within 10 days ofits becoming a matter of public record.Notice shall be mailed to the lastknown address of the individual andshall contain the following informa-tion: The date the subpoena is return-able, the court in which it is return-able, the name and number of the caseor proceeding, and the nature of the in-formation sought. Notice of the issu-ance of subpoenas is not required if thesystem of records has been exemptedfrom the notice requirement pursuantto 5 U.S.C. 552a(j), by a Notice of Ex-emption published in the FEDERALREGISTER.

(b) Emergency disclosures. If informa-tion concerning an individual has beendisclosed to any person under compel-ling circumstances affecting health orsafety, the individual shall be notifiedat his last known address within 10working days of the disclosure. Notifi-cation shall include the following in-formation: The nature of the informa-tion disclosed, the person or agency towhom it was disclosed, the date of thedisclosure, and the compelling cir-cumstances justifying the disclosure.Notification shall be given by the offi-cer who made or authorized the disclo-sure.


92

8 CFR Ch. I (1–1–97 Edition)§ 103.32

§ 103.32 Information forms.

(a) Review of forms. The Service shallbe responsible for the review of formsit uses to collect information from andabout individuals.

(b) Scope of review. The Service FormsControl Unit shall review each form toassure that it complies with the re-quirements of 28 CFR 16.52.

§ 103.33 Contracting record systems.

Any contract by the Service for theoperation of a record system shall be incompliance with 28 CFR 16.55.


§ 103.34 Security of records systems.

The security of records systems shallbe in accordance with 28 CFR 16.54.

§ 103.35 Use and collection of SocialSecurity numbers.

The use and collection of Social Se-curity numbers shall be in accordancewith 28 CFR 16.56.


§ 103.36 Employee standards of con-duct with regard to privacy.

Service employee standards of con-duct with regard to privacy shall be incompliance with 28 CFR 16.57.


PART 109—[RESERVED]

PART 204—IMMIGRANT PETITIONS

Sec.204.1 General information about immediate

relative and family-sponsored petitions.204.2 Petitions for relatives, widows and

widowers, and abused spouses and chil-dren.

204.3 Orphans.204.4 Amerasian child of a United States

citizen.204.5 Petitions for employment-based immi-

grants.204.6 Petitions for employment creation

aliens.204.7 Preservation of benefits contained in

savings clause of Immigration and Na-tionality Act Amendments of 1976.

204.8 Petitions for employees of certainUnited States businesses operating inHong Kong.

204.9 Special immigrant status for certainaliens who have served honorably (or areenlisted to serve) in the Armed Forces ofthe United States for at least 12 years.

204.10 Petitions by, or for, certain scientistsof the Commonwealth of IndependentStates or the Baltic states.

204.11 Special immigrant status for certainaliens declared dependent on a juvenilecourt (special immigrant juvenile).

AUTHORITY: 8 U.S.C. 1101, 1103, 1151, 1153,1154, 1182, 1186a, 1255; 8 CFR part 2.

§ 204.1 General information about im-mediate relative and family-spon-sored petitions.

(a) Types of petitions. Petitions maybe filed for an alien’s classification asan immediate relative under section201(b) of the Act or as a preference im-migrant under section 203(a) of the Actbased on a qualifying relationship to acitizen or lawful permanent resident ofthe United States, as follows:

(1) A citizen or lawful permanentresident of the United States petition-ing under section 204(a)(1)(A)(i) or204(a)(1)(B)(i) of the Act for a qualify-ing relative’s classification as an im-mediate relative under section 201(b) ofthe Act or as a preference immigrantunder section 203(a) of the Act mustfile a Form I–130, Petition for AlienRelative. These petitions are describedin § 204.2;

(2) A widow or widower of a UnitedStates citizen self-petitioning undersection 204(a)(1)(A)(ii) of the Act as animmediate relative under section 201(b)of the Act must file a Form I–360, Peti-tion for Amerasian, Widow, or SpecialImmigrant. These petitions are de-scribed in § 204.2;

(3) A spouse or child of an abusivecitizen or lawful permanent resident ofthe United States self-petitioningunder section 204(a)(1)(A)(iii),204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or204(a)(1)(B)(iii) of the Act for classifica-tion as an immediate relative undersection 201(b) of the Act or as a pref-erence immigrant under section 203(a)of the Act must file a Form I–360, Peti-tion for Amerasian, Widow, or SpecialImmigrant. These petitions are de-scribed in § 204.2;
