DUI Illinois, Summary Suspension, Lawyer, Driving on a Suspended or Revoked License, Chicago, Illinois DUI Attorney

The DUI criminal charge in Illinois is separate from the Statutory Summary Suspension, which is an administrative process. In Illinois, Driving under the Influence of Alcohol (DUI) or on a Suspended or Revoked license can have serious consequences.

An officer stops a vehicle at a roadside safety check or for probable cause, reasonable suspicion or unusual operation. The officer observes the driver and requests a driver's license, vehicle registration.

If the officer suspects the driver is under the influence, the driver is requested to submit to field sobriety tests.

If the officer has probable cause based on the field sobriety tests, the driver is placed under arrest for DUI and taken to the police station. The driver is requested to submit to a chemical testing of breath, urine or blood.

If a tested driver's BAC is more than .05 but less than .08 percent and no drugs are found in the system, no Statutory Summary Suspension will apply. However, the associated DUI charge will remain until appropriate action is taken by the court.

If the driver refuses or fails to complete testing, the Statutory Summary Suspension will apply. A repeat offender who refuses testing will not be eligible for a Restricted Driving Permit (RDP) during the three-year suspension. A repeat offender who takes the test and fails is not eligible for an RDP during the 12-month suspension.

If the driver's test results show a BAC of .08 percent or more, or any trace of a drug, illegal substance or intoxicating compound, the driver will be issued a law enforcement sworn report notifying the driver of a Statutory Summary Suspension.

If the driver's license is valid, a receipt is issued that will allow driving for 45 days. The offender is required to post bond and may be detained until bond is posted. The offender's vehicle may be towed, impounded or seized.

Statutory Summary Suspension, Illinois (Effective on January 1, 2009, a new Illinois law mandates car breath test device for first-offense DUIs. Provides that a first offender who receives a statutory summary suspension shall be issued a monitoring device driving permit (rather than a monitoring device driver's license), except under specified circumstances.)

A Statutory Summary Suspension is an administrative procedure providing for the automatic driver's license suspension of a driver arrested for DUI who fails chemical testing (a test showing a BAC of .08 percent or more or any amount of cannabis, controlled substance or intoxicating compound) or who refuses to submit to or fails to complete testing.

Penalty for failing chemical testing:

First offense — mandatory 3-month driver's license suspension
Second offense — mandatory 12-month suspension

Penalty for refusing to submit to chemical testing:

First offense — mandatory 6-month driver's license suspension
Second offense — mandatory 36-month suspension

A Statutory Summary Suspension in Illinois does not apply to an individual who has a BAC of less than .08. If a BAC greater than .05 and additional evidence such as an open container warrants a DUI arrest, the outcome of the court case will determine if penalties apply.

Summary suspensions in Illinois are automatic, effective on the 46th day from the notice date of the suspension. This suspension of driving privileges does not take the place of criminal penalties for a DUI conviction. An offender may request a judicial hearing to challenge the legality of an arrest; however, the request does not stop the suspension from taking effect.

If a commercial driver’s license (CDL) holder receives a Statutory Summary Suspension, his/her CDL privileges will be disqualified for 12 months if a first offender and lifetime disqualification for a second offender. A Judicial Driving Permit (JDP) may be available to qualifying offenders during the suspension period.

Penalties for a DUI Conviction, Driving Under the Influence, Illinois

A first-time or second-time DUI in Illinois is typically charged as a misdemeanor, not a felony. However, a third-time DUI in Illinois or a drunk driving case where someone suffers great bodily harm will be treated as a felony.

A first DUI offender in Illinois can receive court supervision, only once, which will not be viewed as a conviction. The criminal case is dismissed after successful completion of court supervision, but can't be expunged from the public record.

First conviction (under age 21) — Class A misdemeanor with possible 0- 12 months imprisonment; loss of driving privileges for minimum 2 years; 100 hours community service; fines of up to $2,500; eligible for Restricted Driving Permit (RDP) after one year of revocation; may be required to have a BAIID installed in vehicle as part of driving relief.

Underage DUI, Illinois: zero tolerance law penalties apply to drivers in Illinois under age 21 who have any trace of alcohol in their systems or who refuse to submit to chemical testing.
• First offense: 3-month driver's license suspension for a BAC greater than .00; 6-month suspension for refusal to submit to or failure to complete testing.
• Second offense: 1-year driver's license suspension for a BAC greater than .00; 2-year suspension for refusal to submit to or failure to complete testing.
• If a commercial driver’s license (CDL) holder receives a zero tolerance suspension, his/her CDL privileges will be disqualifed for 12 months if a first offender and lifetime disqualification for a second offender.

Offenses Related to Underage Drinking, Illinois

Purchase or Attempted Purchase of Alcohol by a Minor
• Any person under age 21 convicted of violating the Liquor Control Act of 1934 for the illegal purchase, attempting to purchase, accepting, possession or consumption of alcohol will have his/her driving privileges suspended or revoked for 1 year.

Providing Alcohol to a Person Under 21
Class A misdemeanor with possible 0-12 months imprisonment; fines of $500-$2,500.

Parental Responsibility
Applies to parents or guardians knowingly allowing underage consumption of alcoholic beverages at gatherings at a residence. Class A misdemeanor with possible 0-12 months imprisonment; fines of $500-$2,500.

Illegal Transportation
Offenders may have their driving privileges suspended for 1 year for a first offense and revoked for a subsequent offense.

Hotel/Motel Responsibility
Applies to any hotel/motel employee who rents a room to a person under age 21 knowing that alcoholic beverages will be consumed there; or any person age 21 or older paying for a hotel room or facility knowing alcoholic beverages will be consumed there by individuals under age 21.
• Class A misdemeanor with 0-12 months imprisonment; fines of up to $2,500.
• Persons over age 21 paying for the hotel/motel room are held liable for any injuries or damage to persons or property caused by the underage drinker(s).

Accidents Causing Injury or Death
• Any person under age 18 who has been charged with an offense as a result of an accident in which a passenger was seriously injured or killed may be denied a driver's license or license renewal by the Secretary of State's office.

First conviction (over age 21) — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 1 year; 100 hours community service; fines of up to $2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; fines of up to $2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction.

—Within five years of first conviction: Mandatory 5 days in jail or 240 hours community service (terms of imprisonment or community service not subject to suspension/reduction nor is offender eligible for probation); fines of up to $2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; mandatory minimum 10 days in jail or 480 hours community service; fines of up to $25,000; loss of driving privileges for minimum 10 years.

—Within five years of previous conviction: Mandatory minimum 10 days in jail or 480 hours community service (terms of imprisonment or community service not subject to suspension/reduction nor is offender eligible for probation); eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; fines of up to $25,000; lifetime loss of driving privileges; not eligible for any type of driving relief.

Fifth conviction (Aggravated DUI) — Class 1 felony with possible 4-15 years imprisonment; fines of up to $25,000; lifetime revocation of driving privileges; not eligible for any type of driving relief.

Sixth or subsequent conviction (Aggravated DUI) — Class X felony with possible 6-30 years imprisonment; fines of up to $25,000; lifetime revocation of driving privileges; not eligible for any type of driving relief.

Driving Under the Extreme Influence — BAC of .16 or greater, Illinois

First conviction — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 1 year (if under 21, minimum 2 years); 100 hours community service; fines of $500-$2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction.

—Within five years of first conviction: Mandatory 7 days in jail; community service may be awarded in addition to, but not in lieu of jail time; fines between $1,250-$2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction: Mandatory 2 days in jail; fines of $1,250-$2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; mandatory 90 days imprisonment (not eligible for community service); fines of $2,500-$25,000; loss of driving privileges for minimum 10 years; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

—Within 20 years of previous conviction: Loss of driving privileges for minimum 10 years.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7
years imprisonment (not eligible for probation or conditional discharge);
minimum fine of $2,500.

Driving Under the Influence — Child Endangerment
(driver over age 21 transporting a child under age 16)

First conviction — Mandatory 6 months in jail and 25 days of community service in a program benefiting children; loss of driving privileges for minimum 1 year; fines of $1,000-$2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

—If resulting in bodily harm to a child: Class 4 felony with possible 1- 3 years imprisonment; mandatory fine of $2,500-$25,000 and 25 days of community service in a program benefiting children (imprisonment or assignment to community service not subject to suspension); not eligible for probation.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; mandatory 6 months in jail and 140 hours community service, 40 hours of which in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; fines of $1,000-$2,500; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction; eligible
for RDP; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction: Class 4 felony with possible 1-3 years imprisonment; mandatory 1 year in jail and 25 hours community service in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; minimum fine of $2,500; eligible for RDP; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction and resulting in bodily harm to a child: 18 months in jail; 25 days community service in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; mandatory minimum fine of $5,000-$25,000.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; 25 days community service in program benefiting children (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; mandatory fine of $2,500-$25,000; loss of driving privileges for minimum 10 years.

—Within 20 years of previous conviction: Class 2 felony with possible 3-7 years imprisonment; mandatory 3 years in jail and 25 days community service in program benefiting children (imprisonment or assignment of community service not subject to suspension); not eligible for
reduced sentence; mandatory fine of $25,000.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; not eligible for probation/conditional discharge; minimum fine of $25,000.

DUI while Suspended or Revoked for Previous DUI; Leaving the Scene of a Personal Injury or Fatal Crash; Reckless Homicide; or Aggravated DUI with a Death.

First conviction — Class 4 felony with possible 1-3 years imprisonment; loss of driving privileges for double the original suspension period or additional 1-year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; fines of up to $2,500; may result in seizure and forfeiture of vehicle.

Second conviction — Class 4 felony with possible 1-3 years imprisonment; mandatory 30 days in jail or 200 hours community service; loss of driving privileges for double the original suspension period or additional 1- year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; fines of up to $2,500; may result in seizure and forfeiture of vehicle.

Third conviction — Mandatory minimum 10 days in jail or 480 hours community service; loss of driving privileges for double the original suspension period or additional 1-year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; may result in seizure and forfeiture of vehicle.

Fourth conviction — Class 2 felony with possible 3-7 years imprisonment (not eligible for probation or conditional discharge); fines of up to $25,000; may result in seizure and forfeiture of vehicle.

Additional Consequences of DUI, Illinois
• A DUI conviction is a permanent part of an offender's driving record.
• The offender may lose work time.
• The offender will be required to complete an alcohol/drug evaluation and an alcohol/drug remedial education course or substance abuse treatment program before his/her driving privileges are reinstated.
• The offender must meet the requirements of the Secretary of State's Department of Administrative Hearings prior to obtaining a Restricted Driving Permit.
• The offender's vehicle may be impounded or seized.
• A Breath Alcohol Ignition Interlock Device (BAIID) may be installed in the offender's vehicle as a condition of driving relief.
• The offender is required to carry high-risk auto insurance for 36 consecutive months.
• The offender's vehicle registration will be suspended or revoked.

Penalties for Other DUI-Related Offenses, Illinois

Aggravated DUI
A third or subsequent DUI conviction; a DUI while driving a school bus carrying children; a DUI resulting in great bodily harm, permanent disability or disfigurement; a DUI without a license or permit; a DUI with no proof of insurance; or a DUI after a prior conviction of reckless homicide or Aggravated DUI resulting in one or more details.

Aggravated DUI Involving a Death
A DUI resulting in one or more deaths.
• Class 2 felony with possible 3-14 years imprisonment; fines of up to $25,000.
• Possible 6-28 years imprisonment for multiple fatalities.
• Minimum 2-year revocation of driving privileges.

Reckless Homicide (DUI)
A DUI resulting in the loss of life.
• Class 2 felony with possible 3-14 years imprisonment; fines of up to $25,000.
• Possible 6-28 years imprisonment for multiple fatalities.
• Minimum 2-year revocation of driving privileges.

Possession of Drugs in a Vehicle
Illegal possession of a controlled substance or cannabis by a driver; violations must be entered in court records and reported to the Secretary of State.
• 1-year suspension of driving privileges for a first conviction.
• 5-year suspension of driving privileges for a second conviction within 5 years.

Knowingly Permitting a Driver Under the Influence to Operate a Vehicle
Class A misdemeanor with possible 0-12 months imprisonment and fines of up to $2,500.

Driving on a Suspended or Revoked License, Illinois

First conviction — Class A misdemeanor with possible 0-12 months imprisonment; mandatory 10-day imprisonment or 30 days community service; fines of up to $2,500; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Second conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 30 days in jail or 300 hours community service; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Third conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 30 days in jail or 300 hours community service; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Fourth-ninth conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 180 days in jail; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

10th-14th conviction — Class 3 felony with possible 2-5 years imprisonment; not eligible for probation or conditional discharge; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

15th or subsequent conviction — Class 2 felony with possible 3-7 years imprisonment; not eligible for probation or conditional discharge; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Dram Shop
An employee or owner of an establishment may be held liable for a crash resulting from the unlawful selling, giving or delivery of alcohol in that establishment to a minor, intoxicated person or person known to be under legal disability or in need of mental treatment.
• Liability is limited to $50,467 for property damage or personal injury.
• Liability extends to $61,682 for a loss of means of support due to death or injury

Illegal Transportation/Open Container
Transporting, carrying, possessing or having any alcoholic beverages in the passenger compartment of a motor vehicle, except in the original container with the seal unbroken, is illegal. Exceptions to the law are limousines, motor homes, mini motor homes and chartered buses not hired for school purposes.
• Maximum $1,000 fine and point-assigned violation on driver's record.
• 1-year driver's license suspension or revocation for a second conviction within 12 months.
• Mandatory 1-year license suspension for an offender under age 21 for a first offense, and mandatory license revocation for a second offense.

Fraudulent IDs and Driver's Licenses
It is illegal to assist in obtaining or to fraudulently obtain, distribute, use or possess a fictitious or fraudulent state ID card or driver's license.The Secretary of State has the authority to suspend (up to 12 months) or revoke driving privileges prior to a conviction for anyone involved in the following offenses:

Class A misdemeanors (subsequent offenses are Class 4 felonies)
• Possessing, attempting to obtain or assisting another in obtaining a fictitious driver's license or permit.
• Allowing another person to use your license or permit.
• Displaying or representing as one's own any license or permit issued to someone else.
• Allowing any unlawful use of one's license or permit.

Class 4 felonies (subsequent offenses may be Class 3 felonies)
• Possessing, attempting to obtain or assisting another in obtaining a fraudulent license or permit.
• Issuing or assisting in the issuance of a fictitious driver's license.
• Manufacturing, possessing or providing any document for the purpose of obtaining a fictitious license.
• Possessing a driver's license-making or permit-making implement.

Judicial Hearings, Illinois

A driver may request a judicial hearing to challenge a summary suspension within 90 days after the notice date. The hearing must be conducted within 30 days of the request or on the first court date scheduled to consider the criminal charges.

Legally, only four issues may be considered:
• Whether the person was properly arrested;
• Whether there were reasonable grounds to believe at the time of arrest that the person was driving or in physical control of the vehicle while under the influence of alcohol or other drugs;
• Whether the driver, after being informed of the impending summary suspension, refused to submit to chemical testing; and
• Whether, after being advised of the summary suspension, the driver submitted to chemical testing that showed a BAC of .08 or greater or any trace of cannabis, a controlled substance and/or intoxicating compounds.

The summary suspension is rescinded if the court rules in favor of the driver. The result of the hearing is entered on the driver's record.

Driving Permits, Illinois

Drivers who have had their licenses suspended or revoked may be granted limited driving privileges. These temporary driving permits are only issued for employment, education and/or medical purposes when no other form of transportation is available. Some offenders may be required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in their vehicles as a condition for the issuance of a permit.

Judicial Driving Permit (JDP), Illinois
• Drivers under age 18 are not eligible for a JDP.
• First-time DUI offenders may request a JDP from the court to allow limited driving during a Statutory Summary Suspension. (A first-time offender is a driver who has not received a previous summary suspension, been convicted of DUI or assigned court supervision for DUI in this state, or who has not been convicted of DUI in another state within five years.)

Before the court can approve a permit, the offender must prove a hardship exists and provide proof of a current professional alcohol and drug evaluation.
• The JDP does not become effective until the 31st day of suspension.
• A commercial driver’s license (CDL) holder does not qualify for a JDP to operate a commercial motor vehicle. The driver may be eligible for a JDP for base driving privileges if the driver is a first offender.

Restricted Driving Permit (RDP), Illinois

Full driving privileges are lost for a minimum of five years if a driver receives a second conviction for any of the following: DUI; leaving the scene of a personal injury or fatal crash; reckless homicide, or any combination of these offenses in a 20-year period. If a driver receives a third conviction for any of these offenses, regardless of the length of time between convictions, full driving privileges will be lost for a minimum 10 years. If a driver receives a fourth or subsequent conviction, his/her license will be revoked permanently. If a driver is convicted of DUI in another state, Illinois driving privileges will be revoked.

If eligible, those convicted of DUI may apply to the Secretary of State's office for an RDP.
• A multiple offender whose BAC test results are .08 percent or greater or whose chemical test indicates any amount of a controlled substance, is not eligible for an RDP during the summary suspension period.
• A multiple offender who refuses to submit to or fails to complete chemical testing is not eligible for an RDP during the summary suspension.
• A driver under age 16 whose driving privileges are revoked is not eligible for an RDP.
• To obtain an RDP, the offender must prove hardship exists, provide a current professional drug and alcohol evaluation and, when appropriate, provide proof of remedial education or treatment.
• An offender must appear before a hearing officer in the Secretary of State's Department of Administrative Hearings. The driving record is reviewed to ensure that the driver would not threaten public safety if allowed to drive on a limited basis.
• An individual with two or more alcohol related driving incidents on his/her driving record within 10 years is required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in his or her vehicle for the duration of the RDP. As required by statute, the individual is responsible for the fee required for the BAIID during this period.
• An individual requesting a formal hearing for an RDP or reinstatement of his or her driving privileges will be charged a $50 nonrefundable filing fee when requesting the formal hearing.

Driver’s License Reinstatement, Illinois, Chicago

Statutory Summary Suspension, Illinois
Driving privileges may be reinstated at the end of the Statutory Summary Suspension period unless the court instructs the Secretary of State otherwise.

A person convicted of DUI who lost his/her driving privileges because of a summary suspension will have that time credited to the minimum driver's license revocation period.

Before driving privileges can be reinstated:
• Other suspensions or revocations on the driving record must be cleared.
• A $250 reinstatement fee must be paid to the Secretary of State, $30 of which goes to the Department of Human Services, Office of Alcoholism and Substance Abuse, to help defray the cost of professional alcohol and drug evaluations for indigent offenders.
• In the case of repeat offenders, the reinstatement fee is $500, with $60 going to the Illinois Road Fund, $190 going to the Drunk and Drugged Driving Prevention Fund, and $250 going to the General Revenue Fund.
• The reinstatement of a Statutory Summary Suspension becomes valid when it is entered on the driver's record in the Secretary of State's office provided the provisional termination date has passed.
• Payment for the reinstatement fee may be mailed to: Secretary of State, DUI Section, 2701 S. Dirksen Pkwy., Springfield, IL 62723. If paying by credit card, please call 217-782-3619 (debit cards not accepted).

Revocation

To have driving privileges reinstated in Illinois, a driver convicted of DUI must:
• Have a clear driving record other than the revocation sanction.
• Undergo an alcohol and drug evaluation. If an alcohol or drug problem is indicated, proof of treatment must be submitted.
• Complete an alcohol and drug remedial education program. Even if the evaluation does not recommend treatment, the driver is still required to complete a remedial education program.
• Appear before a Secretary of State hearing officer. For a first offense, aninformal hearing may be conducted by visiting a hearing officer at one of the regional Driver Services facilities. Multiple offenders must request in writing, pay a $50 non-refundable filing fee and attend a formal hearing in Chicago, Springfield, Mt. Vernon or Joliet.
• Demonstrate during the hearing that public safety will not be endangered if driving privileges are restored. The hearing officer considers the seriousness of the offense, the offender's overall driving record and the driver's remedial efforts.
• File proof of financial responsibility prior to reinstatement, pay a $500 reinstatement
fee, pass the driver's license examination (written, vision and driving portions) and pay the appropriate application fee.
• Repeat offenders must pay an additional $500 in reinstatement fees.
• Payment for a revocation may be mailed to: Secretary of State, Traffic Violations Section, 2701 S. Dirksen Pkwy., Springfield, IL 62723. If paying by credit card, please call 217-785-8619 (debit cards not accepted).
• An individual requesting a formal hearing for reinstatement of his/her driving privileges must pay a $50 non-refundable filing fee when requesting the formal hearing.

A reinstatement in Illinois becomes valid when it is entered on the driver's record in the Secretary of State's office.

Secretary of State
Administrative Hearings Dept.
291 Howlett Bldg.
Springfield, IL 62756
217-782-7065
or
17 N. State St., #1200
Chicago, IL 60602
312-793-3862

Citizenship, Acquisition and Derivation, Child Citizenship Act

Citizenship: Acquisition and Derivation.

(a) Introduction. (revision dated 07/18/2005) In addition to the naturalization process, the United States recognizes the U.S. citizenship of individuals gained through other means. A Certificate of Citizenship documents citizenship that is obtained other than through birth in the United States or naturalization under section 310 of the Act.

Form N-600 Application for Certificate of Citizenship is used to request the Certificate of Citizenship provided for in section 341 of the Act. Form N-643 was created after Congress provided for the naturalization of adopted children in 1986. The Child Citizenship Act of 2000 (CCA), P.L.106-395 , became effective on February 27, 2001 and led to revisions to the forms to apply for Certificates of Citizenship.

Application and petition forms, and documents issued to support an application or petition, such as Form I-130 Petition for Alien Relative, labor certifications, Form DS 2019, medical examinations, affidavits, formal consultations, letters of current employment and other statements, must be submitted in the original unless previously filed with USCIS. Official documents issued by the USCIS need not be submitted in the original unless required by USCIS. Unless otherwise required by the applicable regulation or form's instructions, a legible photocopy of any other supporting document may be submitted. (This paragraph added 07/18/2005.)

USCIS may, at any time, request submission of an original document for review. The request will state a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying application or benefit. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an origi nal document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document by submitting a properly completed and signed G-884 to the adjudicating USCIS office. (This paragraph added 07/18/2005.)

Please note that it is up to the applicant to establish eligibility for the Certificate of Citizenship. In general, issuance of the certificate provides evidence of U.S. Citizenship vested in the applicant. Denial of an application does not necessarily mean that the applicant is not a citizen. The evidence submitted in support of the application may not have been sufficient. Proper evidence may establish otherwise.

(b) Definition of Child for Naturalization and Citizenship . The definition of “child” for naturalization and citizenship is more restrictive than that used for immigration or adjustment of status. The definition for child as used in naturalization and citizenship (Title III) is found at section 101(c) of the Act. This definition does not include stepchildren. Adopted children are provided for when they are included specifically in any section of the INA that applies to citizenship. Before February 27, 2001, section 321of the Act governed citizenship for children born out of wedlock.

Legitimation is a concern when determining acquisition or derivation of citizenship. You must also be aware of the specific rules requiring the child’s legitimation under section 101(c) of the Act and determine the citizenship status of the father. If the natural father was a citizen at the time of the child’s birth, then section 309 and section 301 of the Act may apply, depending on the child’s date of birth.

Generally, the child must be legitimated while under 16 years of age, unless another section of the Act refers to a specific age. For example, under section 309 of the Act, the child needs to be legitimated by his or her father before age 18.

(c) “Acquisition” of U.S. Citizenship . Prior to the effective date of the CCA (February 27, 2001), “acquisition” referred to citizenship acquired at birth. The relevant statutory provisions dealing with acquisition are section 301 , section 303 , section 309 , and section 324 of the Act. You will find Naturalization Charts 1 and 2 (at Appendix 71-1 and Appendix 71-2 of this field manual) helpful in adjudicating acquisition claims.

Sections 301 and 309 of the Act provide for citizenship at birth.

Section 320 of the Act, as amended by the Child Citizenship Act, provides that the child “acquires” citizenship when certain conditions are met. Section 320 will be discussed under the “derivation” of citizenship, as it more closely resembles derivation statutes.

Section 324 of the Act provides for reacquisition of citizenship under certain conditions and was amended in 1994 to provide for the reacquisition of citizenship by certain section 301 citizens.

(1) Sections 301 and 309 of the Act . Form N-600 is used to apply for a certificate of citizenship when citizenship is acquired at birth under section 301 and section 309 of the Act. When adjudicating applications under these sections, the Act and conditions that exist at the time of birth of the applicant govern. Because these sections have been modified extensively over the past century, officers adjudicating these applications must be familiar with the Naturalization charts, with the issues that are covered in the Interpretations and changes in terminology through public laws. For example, P. L. 104-51 changed the term “illegitimate” to “out of wedlock” in section 101(b)(1)(D) of the Act.

• Children Born in Wedlock. The provisions of section 301 of the Act have governed the acquisition of citizenship at birth by children born in wedlock since 1952. Prior laws and statutes are extensively covered in the Interpretations. Most issues that have arisen pertain to cases where only one parent is a U.S. citizen and the other is an alien. Keep in mind the definition of child and that stepchildren are not eligible for citizenship through this process.
• Children Born Out of Wedlock. Prior to the Act of October 1, 1978, children born out of wedlock acquired citizenship through the mother if the mother had resided in the U.S. for one year. To acquire citizenship through his or her father, a child born out of wedlock needed to be legitimated or to meet other requirements depending upon when the child was born and when the child turned 16, 18 or 21. It should be noted that section 309 of the Act provides that section 301 of the Act applies to a child born out of wedlock when citizenship is claimed through the father. Therefore in adjudicating an application under section 309, it is not enough to establish that the father meets the requirements stated in section 309(a) or section 309(b) of the Act. Once it is established that the father and child qualify under section 309(a) or 309(b), the father must then establish that he had the required physical presence and residence under section 301(g) of the Act at the time of the child’s birth.


The general requirements for “Acquisition” are:


• Citizenship: The parent must be a citizen of the United States at the time of the child’s birth.
•Residence and Physical Presence: The Act has consistently required residence and physical presence in the United States or outlying possessions prior to the birth of the child. Officers should be aware that the definition of outlying possession has not been constant. For example, the Philippines were considered an outlying possession from 1899 to July 4, 1946. See section 101(a)(29) of the Act. Currently, the Act defines outlying possession as American Samoa and Swains Island.

Officers should also review section 301(g) of the Act for the conditions under which time spent outside the U.S. as a member of the military or working for certain U.S. government or international organizations may qualify as residence and physical presence in the U.S.

• Certificate: If approved an “AA” or “AB” certificate is issued. The date of citizenship is the birth date of the applicant.
• Retention Requirements: Until the Act of October 1, 1978 U.S. citizens who had acquired citizenship through birth outside the U.S. to one U.S. citizen parent had to meet residence and physical presence requirements in order to retain U.S. citizenship. Although the Act eliminated retention requirements for those born after 1952, it may be possible that a person born in 1952 and subject to the provisions of the 1940 Act would have failed to retain citizenship. For those born before 1952, consult Interpretation 301.1(b)(6) for a com plete discussion of the retention requirements.

(2) Section 324 of the Act: Resumption of Citizenship . The Act of October 24, 1994, Pub. L. 103-416, amended section 324 of the Act effective April 24, 1995 to provide that an alien who was formerly a citizen under section 301 or a preceding statute, but had failed to meet the retention requirements and had lost citizenship, could regain citizenship by taking the oath of allegiance. Section 324 does not change the period of time during which the person was considered an alien. Children born to such a person during the time they were not a citizen are considered to be born to an alien parent. Upon approval of an application under Section 324(d) the effective dat e will be the date of oath. The N-600 should be noted with the period of time that the applicant was not to be considered a citizen.

In preparing the Certificate of Citizenship (“AA” or “AB”) for such an applicant the following shall be noted on the Certificate:

• The effective date of citizenship is the date of oath. The date of citizenship must be marked with an asterisk.

• The reverse side of the certificate shall be endorsed in clear bold type : “(applicant’s name), a citizen of the United States by birth, from date of birth (DOB), to the present, excluding the periods of noncitizenship from to .”

(d) “Derivation” of U.S. Citizenship . Prior to the enactment of the CCA on February 27, 2001, “derivation” applied to citizenship that is obtained through an action after birth, such as naturalization of a parent. Derivation statutes are section 320 and section 321 of the Act in effect prior to Feb 27, 2001(see Appendix 71-6). You will find Naturalization Chart 3 (at Appendix 71-3) helpful in adjudicating derivation claims.

Because of changes in the Act, officers adjudicating these applications must have available to them prior sections 320, 321, and 322 of the Act. Applications for Certificates of Citizenship may deal with events that occurred prior to the current law, and officers must be aware of the prior standards for acquisition or derivation. The Interpretations will most often provide guidance on such issues as residence and physical presence. It should be noted that the Interpretations section 320 also covered prior s ection 321 and should be referred to when needed in cases involving derivation prior to the CCA.

(1) Child Citizenship Act, Pub. L. 106-395, Revised Section 320 of the Act . The Child Citizenship Act (CCA), effective February 27, 2001, amended section 320 of the Act and removed section 321. Although the CCA uses the term “acquires,” it is sufficiently similar to sections 320 and 321 in effect before February 27, 2001 to be considered a derivation statute. Officers adjudicating applications filed after February 27, 2001 should review the regulations at 8 CFR 320 which were published after the implementation of the CCA. The revised section 320 became the only method for children in the U.S. under the age of 18 to acquire citizenship. See also Appendix 71-7.

The CCA applies to adopted children and certain foreign-born natural children. A child adopted by a U.S. citizen parent is eligible for the CCA if the child satisfies the requirements applicable to adopted children under section 101(b) of the Act, including children described in section 101(b)(1)(E) and section 101(b)(1)(F) of the Act.

The CCA also applies to children who meet the requirements of section 101(c) of the Act. This includes unmarried children born in wedlock and legitimated children. An alien child who was born out of wedlock and has not been legitimated is eligible for derivative citizenship when the mother of such a child becomes a naturalized citizen under section 320 and 322 of the Act. Section 321 , in effect until February 26, 2001, had a specific reference to children born out of wedlock who were not legitimated.

A child of a naturalizing parent is also covered by the CCA provided that the child meets the definition of section 101(c) or section 101(b)(1)(E) or (F) of the Act. The CCA only requires one U.S. citizen parent to confer automatic citizenship. The naturalization of a single alien parent, regardless of his or her marital status or the immigration status of the other parent, is sufficient for a child to be eligible for citizenship under CCA.

The CCA applies to children residing in the U.S. pursuant to a lawful admission for permanent residence. Children who had previously been granted lawful permanent residence but were outside the U.S. temporarily on February 27, 2001 became citizens upon their return to the U.S.

For children who acquired citizenship on the date the CCA went into effect, the Certificate of Citizenship reflects February 27, 2001 as the date of acquisition. Children whose date of citizenship is February 27, 2001 are those who were still under age 18 and who met all the other requirements of section 320 of the Act (i.e., lawful permanent residence, living with and in the legal and physical custody of the U.S. citizen parent) on February 27, 2001.

After February 27, 2001, the date reflected on an individual’s certificate of citizenship will be the date when the last requirement needed to acquire citizenship automatically under section 320 of the Act is met. This date can be either:

• the date on which an alien parent of a qualifying child naturalizes, or
• the date on which a qualifying child is lawfully admitted for permanent residence, or
• if adopted, the date on which a qualifying child, who has been lawfully admitted as a permanent resident, has been finally adopted by a U.S. citizen or had such an adoption recognized by the state where the child resides.

Upon approval of the application the applicant is issued an “A” certificate.

(2) Derivation prior to the enactment of the CCA (before February 26, 2001) . Until the effective date of the CCA (February 27, 2001), derivation was dependent upon the naturalization of a parent. Prior to February 27, 2001, section 320 of the Act applied to a child who was born to a U.S. Citizen parent and an alien parent, while section 321 of the Act applied to a child born in wedlock to two alien parents and a child born out of wedlock to an alien mother (See old sections 320 and 321 in Appendix 71-6 of this field manual). Over the years, the citations concerning adopted childre n changed. Be sure to review the dates of adoption and the law in effect at the time. See Interpretations 320.1(d)(1), Interpretations 320.1(d)(1)(2) and Interpretations 320.1(d)(1)(3).

• Requirements: The basic requirements for both sections were the naturalization of an alien parent or parents, as applicable, the lawful admission for permanent residence of the alien child, and the satisfaction of these and any other statutory requirements before age 18. Since the order in which the requirements were satisfied was not stated in the statute, as long as the applicant meets the requirement of the statute before age 18 the applicant derives U.S. citizenship.

The exception was an adopted child during certain time periods. Therefore, for example, under the prior INA section 321(a)(3), citizenship would be derived when a divorce occurred after naturalization of one parent and the naturalized parent obtained legal custody of the child. The date of derivation would be the date of divorce.

• Legitimation and Legal Custody: Although the common application was based upon the naturalization of two alien parents, two important issues when adjudicating claims for derivation under section 321 of the Act are legitimation and legal custody. Section 321 allowed derivation when the two alien parents had a legal separation and the parent having legal custody naturalized. Interpretations 320.1(a)(6) contains a discussion of legal custody and legal separation which were valid for certain time periods. Officers should become familiar with the law of the states in their office’s jurisdiction with respect to legal custody. Generally, legal custody is custody granted by a competent governmental authority or by a statute. See also the current definition of legal custody in 8 CFR 320.1 and 8 CFR 322.1.

Provided all other statutory requirements are met, a child whose paternity has not been established by legitimation before the age of 16 may derive citizenship through the mother (see section 101(c) and section 321(a)(3) of the Act) . Remember that the age for legitimation has varied over the years from 16, 18 or 21 depending on the period and statute in effect.

Early volumes of the published decisions contain many decisions on legitimation and foreign legitimation. You may also consult the Foreign Affairs Manual or inquire with the Library of Congress if there are questions that still need to be resolved regarding the legitimation requirements of a particular country. Check the Library of Congress opinions on the Intranet before sending a request for an opinion. See Chapter 14.10 of this field manual regarding procedures for requesting Library of Congress research .

• Date of Citizenship: The date of citizenship for most applicants will be the date of the last action to occur before age 18. This will be one of the following:

– naturalization of parent(s).

– legal custody when there has been a legal separation.

–death of an alien parent when the other parent has naturalized

–naturalization of a surviving parent

– lawful admission for permanent residence.

For an adopted child, the date of citizenship will be the date of naturalization for the adopting parent if the other conditions are met.

(3) Other Persons Eligible for Certificates of Citizenship . The CCA amended section 322 of the Act to cover foreign-born children not eligible under section 320 of the Act who are residing outside the United States with a United States citizen parent.

Note: Until the Form N-600K, Application for Citizenship and Issuance of a Certificate under section 322, is available, a parent seeking naturalization for a foreign born child under this section may apply on the Form N-600; parents of an adopted child may also use Form N-643.

In order for a child born and residing outside the United States to acquire citizenship under section 322 of the Act, the United States citizen parent must apply for naturalization on behalf of the child. (See Appendix 71-7 of this field manual and 8 CFR 322.)

As of November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act, P.L. 107-273, amended section 322 of the Act to allow the addition of U.S. citizen grandparents and U.S. citizen legal guardians as eligible to apply for naturalization on behalf of a child born and residing outside the United States. Under this amended provision, application by the U.S. citizen grandparent or U.S. citizen legal guardian can be made within 5 years of the death of a U.S. citizen parent of a child who could otherwise have been the beneficiary of an application pursuant to section 322. The law does not authorize applications pursuant to section 322 by any person other than a U.S. citizen parent except in cases in which a U.S. citizen parent has died. (See Appendix 71-8 of this field manual.)

The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance. The naturalization process for such a child cannot take place overseas. The application is filed with the U.S. office where the child and applicant wish to appear for the interview. The U.S. office reviews the application, and if it appears to be approvable, will send the applicant and the child an appointment notice. The appointment letter should be taken to a U.S. Consulate or the consular section of a U.S. Embassy in order to obtain a nonimmigrant visa for the child, if a visa is required for entry. The child may be admitted under any nonimmigrant classification. “Admission” is defined under section 101(a)(13) of the Act; “parole” is not considered an admission. (See also 9 FAM 41.31 Note 11.6).

You will need to determine if the child is maintaining lawful status. A child is considered to have maintained lawful status if his or her nonimmigrant classification has not expired or been revoked if he or she has not violated the terms of his or her visa.

If the child qualifies under section 101(b)(1)(E) of the Act as having been adopted and has been in the legal custody and resides with the U.S. citizen parent for two years, documentation establishing the legal custody and residence must be submitted with the application. If the application is based upon a child as defined in section 101(b)(1)(F) of the Act, the application must be supported by an approved Form I-600 or evidence that the child has been admitted for lawful permanent residence with the immigr ant classification of IR-3 or IR-4.

Particular care should be taken to ensure that the U.S. citizen parent or U.S. citizen grandparent has the required residence and physical presence in the United States to transmit citizenship. Unlike in other sections of law, the U.S. citizen’s grandparent’s residence could have been before or after the birth of the child and application. Assuming the alien child meets all other requirements of section 322 , an alien child remains eligible after the death of the citizen parent's own citizen parent, so long as the citizen parent's own citizen parent met the physical presence requirement in section 322(a)(2)(B) at the time of death. (See LINK) to Policy Memorandum 94, dated April 17, 2003, "Effect of Grandparent's Death on Naturalization under INA Section 322.")

A child becomes a citizen under section 322 of the Act as of the date of the approval of the application and the takes the oath of allegiance, unless the oath is waived due to young age. The application must be approved and the oath taken before the child reaches his or her 18 th birthday. The child will receive an “A” certificate.

(e) Filing the Application and Initial Processing . Forms N-600 and N-643 are filed with the USCIS office in the United States having jurisdiction over the place of residence of the applicant. Overseas applicants may file the application with any office of the USCIS within the United States.

Upon receipt of the form, the application must be examined to assure that it is complete, presents a prima facie case of eligibility for the issuance of a certificate of citizenship and has the required fee and photographs. Applicants must submit any additional documentary evidence necessary to support their citizenship claim. Any document in a foreign language requires an English translation.

Further clerical operations will be necessary: obtaining or creating the applicant’s “A” file, verifying the naturalization of parent(s), verifying the military service of a parent, securing additional necessary documentation and other related files.

Former Form N–601, Status N-600 Application, was the processing worksheet for all N–600 cases. The N–601 has since been eliminated, but is exhibited in Appendix 71-9 to provide elements for a locally developed processing worksheet. Offices should use either Form N–601 or a locally developed processing sheet to record the status of the application. The processing sheet shall be maintained on the right side of the A-file.

You will need to determine if an interview is required. See 8 CFR 341.2(a)(1) to determine if the interview can be waived. All applications for certificates of citizenship filed under section 322 of the Act require an interview with the applicant and the child. See also Appendix 71-7 of this field manual.

• N-643 waiver of child's appearance: If the child is under 14 years of age on the date of the scheduled interview, and there are no circumstances in the case giving rise to the suspicion that the child is an impostor, or has abandoned residence in the United States, the child shall not be required to appear before an officer if the parent or guardian is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2, and to identify a photograph of the child as that of his/her son or daughter. If the child’s appearance before the officer in connection with the N-643 application is waived, the oath requirement shall be regarded as also waived, and the words "oath and personal appearance waived" shall be noted in the report section provided on Form N-643.

• N-600 waiver of child’s appearance: When the person(s) through whom citizenship was acquired or derived is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2 and to identify a photograph of the child as that of his son or daughter, the child's appearance before the officer in connection with the N-600 application, and the oath requirement in his case, shall be regarded as waived as long as there is no suspicion that the child is an impostor and no other s uch consideration.

(1) Initial Documentation . The documentary evidence in support of the N-600 application is not required if such evidence is available for use in other files. The instructions of the Form N-600 state that if the required documents are available, you should request the file to obtain them before asking the applicant to submit duplicate copies.

An unexpired United States passport issued for 5 or 10 years is now considered prima facie evidence of U.S. citizenship. Because it does not provide the actual basis upon which citizenship was acquired or derived, the submission of additional documentation may be required or the passport file may be requested. If after review there are differences or discrepancies between the USCIS information and the Passport Office records which would indicate that the application should not be approved, no action should be taken until the Passport Office has an opportunity to review and decide whether to revoke the passport.

If the applicant indicates that he or she did apply for some sort of documentation from the State Department, you may send a completed Form N-602 to the Director of the Washington District office. Clearly describe the document requested. Similarly, if documents requested are unusual in nature, they should be described in reasonable detail. Furthermore, if there appears to be a question concerning the legitimacy of the applicant, the validity of his parents’ marriage, or some other matter which may be expect ed to be resolved upon the basis of the documents requested, this fact should be appropriately stated in Form N-602. If there is some reason to believe that the applicant or parent has expatriated, briefly explain the facts on the form. You may attach supplementary sheets if there is not enough room on the Form N-602. Washington Investigations will verify the information or document requested with the Department of State. You should review the Foreign Affairs Manual Volume 9 Appendix C to determine the avai lability of documents from the applicant’s country of birth. The manual can be found on the Internet at:

http://foia.state.gov/FAMDIR/fam/fam.asp

A record of admission on Form I-94 may have been created during the period that retention requirements existed for some U.S. citizen children born abroad. These Forms I-94 are maintained in Headquarters Records for a United States citizen born abroad and entering the United States for the first time. Many are stored on microfiche and microfilm; in 1983, HQ Records started automating the I-94s. To request information about these files, you will need to send a fax to the Office of Records Management Certifica tion Unit at (202) 305-1737. You will need to include the name of the person or applicant, the date of birth, date of entry and the Form I- 94 number or admission number.

(2) Assumed name/Signature . When the applicant has assumed, or is known by a name other than a true name, but has not changed the name in accordance with the law of the jurisdiction where it was assumed, the certificate of citizenship shall be issued in the applicant's true name followed by the words "also known as" and the assumed name. However, in such a case the applicant shall be required to sign only the true name on the certificate and on the photographs submitted with the application. The certificate shall be signed by the ap plicant unless the applicant is a child unable to sign his/her name, in which case the certificate shall be signed by the parent or guardian, and the signature shall read "(insert name of child) by (insert name of parent or guardian, indicating which)."

(3) Assembling the Record of Proceeding . It is required that the officer properly identify and assemble the record material so that the record will be complete, that it may be read without taking the file apart, and that the papers in it are in the same order in every case handled. If an affidavit or sworn statement is taken, or a supplementary report is prepared by the officer to clear up a discrepancy or establishing that a discrepancy defeats the claimed citizenship, this affidavit, statement, or report should be attached to and remain a part of the file.

The order of the various papers shall be, to the extent possible, as follows:

(A) Form N-600 and supplementary sheets.
(B) Officer’s memo(s), if any.
(C) Affidavits or recorded statements taken by officer examining applicant or the person(s) acting in applicant’s behalf
(D) Documents from the applicant
(E) Other evidence, such as verification of naturalization, reports from Department of State

Form N-601 or the processing sheet shall be maintained as the uppermost piece of material on the right-hand side of the A-file.

(f) Adjudicating the Application .

(1) The Interview . Information gathered by the examiner during the review or examination may form a basis for revocation of the basic naturalization, or for criminal prosecution, or a basis of action upon similar applications in later years. You should review every answer in Form N-600, Form N-643, and Form N-600 Supplement A for completeness, accuracy, veracity and understanding by the applicant (or his parent or guardian if he is under 14). Each and every correction or change on the application or supplementary sheets, in cluding changes to improve legibility, shall be consecutively numbered, even though several changes may form a part of a single item within an answer. All changes and the numbers must be made in red ink.

The officer should quickly determine the identity of the person appearing for examination and his competency. The officer must be satisfied before administering the oath (or affirmation) that all persons understand the nature of the oath (or affirmation) and the significance of their testimony and of testifying under oath or affirmation.

The officer and all persons who are to be placed under oath or affirmation shall stand, if physically able, and have his right hand raised during the administration of the oath. The applicant, or his parent or guardian if he is under 14, shall be examined first.

Where it is necessary to develop and explain inconsistencies or discrepancies as a part of the record, every effort shall be made to obtain complete details in the form of a brief summary indicating what the applicant or witness said, rather than the officer’s conclusions, and if the matter is deemed important, a sworn (affirmed) statement shall be obtained. (See Chapter 15.6 of this field manual)

All documents shall be carefully examined and all persons interviewed with regard to all of the matters bearing on not only whether citizenship was derived or acquired as claimed but also whether the applicant is currently a citizen of the United States. In cases in which primary documentary evidence cannot be obtained, secondary evidence may be used.

The examination should cover such matters as identity and relationship; marital history; legitimacy or legitimation, where material; residence of the person(s) through whom claiming, both before and after naturalization; residence and physical presence before the applicant’s birth on the part of the person(s) through whom claiming; retention requirements; and expatriatory acts, including, where women are concerned, loss of citizenship by marriage to an alien.

Allegations as to naturalization may be supported by the Naturalization Certificate. If the certificate is unavailable or suspect, the allegations shall be checked against the relating file, other USCIS records, court records, or other verification of naturalization, and a determination made regarding whether the record of naturalization found relates to the applicant’s case.

Full details shall be set out for each link in the chain of citizenship for both the applicant and the person(s) through whom citizenship is claimed, and all elements essential to such citizenship shall be proved. Where a parent is a non-citizen national of the United States and that status is material to the applicant’s claim, this element shall also be fully developed.

Keep in mind the definitions of the terms “United States” and “outlying possessions” under the applicable section of law and clearly distinguish between “residence” and “physical presence” where necessary. (See section 101(a)(38), section 101(a)(29) and section 101(a)(33) of the Act).

All essential information furnished by the applicant or the person acting in his behalf which cannot be inserted in the application shall be made a part of the record by a separate detailed statement under oath or affirmation from the applicant or that person. If the nature and extent of military service in the Armed Forces of the United States are material to the claim of citizenship, Form N-426, or DD Form 214 issued to personnel at the time of discharge, shall be used to verify the information, unless th e verification relates to a person on active duty with the armed forces. In such event, a certification from the serviceman’s commanding officer, satisfactory in form and content, may be accepted.

(2) A Review of a Number of Important Data Elements on the Forms .

• PRC Number : Check the information on the Permanent Resident Card (PRC), if any, with the information in the appropriate box on the application and against the file number. This may reveal that a new file may have been created upon receipt of the application, even though an A-file previously existed. The examining officer must determine whether files should have been consolidated.
• Name : The applicant’s present full, true and correct name without abbreviation (and maiden name, if any) shall be shown. Any variation in name from that which is supported by the documents available shall be explained as part of the record.
•Birth data : The date and place of birth are especially important when derivation is through a parent, as they bear materially on identity of the applicant, legitimacy, requisite age to derive or retain citizenship, and relationship. They may also be material factors in considering whether particular conduct resulted in expatriation. The date of birth must be accurate and must be checked against all data in the file, such as the birth certificate, visa or other record of entry data, and alien registration record. Tran slations should be checked if possible with regard to dates, against the document translated, since translators may mark down an incorrect date in the translation. Where the date of birth is material, any variation in the record shall be fully explained as a part of the record and the examiner’s conclusion regarding which date is correct shall be supported by a memorandum containing his reasoning.
• Arrival data : Allegations regarding arrival shall be checked against arrival data in the file. If the applicant traveled on a United States passport and was admitted as a United States citizen, the passport number, together with the date and place of issuance, shall be shown.

If a lawful admission to the United State for permanent residence is material to the applicant’s citizenship, the officer must determine whether applicant’s entry constituted such an admission; whether the visa or record verified relates to the applicant; and whether entry on that date brings the applicant within the terms of the relevant statute. If retention requirements are applicable, the officer shall also determine whether they have been satisfied so far as timeliness of entry into the United States a nd residence or physical presence are concerned.

If the applicant claims United States citizenship at birth (“AA” or “AB” certificate), but was admitted to the United States as an alien, the facts shall be fully developed, particularly to ascertain whether expatriation has occurred. The explanation shall be included in a sworn (affirmed) statement made by the applicant, or, if time does not permit the taking of a statement, a memorandum shall be prepared by the examining officer setting forth the applicant’s explanation. Such sworn (affirmed) statement or memorandum shall be made a part of the record. If it appears the State Department has a relating file which should be consulted, a report indicating what the file shows should be obtained and included in the record.

When the applicant arrived before July 1, 1924, and lawful admission for permanent residence is material, the information set forth should be compared with data in official verifying records to determine that the record of arrival found relates. The verifying record should be carefully checked against data supplied by the applicant, since it may reveal discrepancies as to name, age, parentage, absences of parents or a prior application, possibly of another person, on which the same arrival record was used. Material discrepancies shall be explained in a memorandum made a part of the record, and where the discrepancies indicate possible fraud, a sworn (affirmed) statement should be taken and made a part of the record.
• Absences : The information in this item is essential to determining whether the applicant may have expatriated, or whether there was a failure to comply with applicable retention requirements. The date of an absence may be significant in itself if it occurred during a war period when service in the armed forces of the foreign state might reasonably be expected to have been performed with expatriative effect. It should be thoroughly explored with the applicant, parent to elicit all relevant facts bearing upon the iss ue. If you have determined expatriation occurred, develop a written summary of the facts.

After admitted absences have been recorded appropriately, the applicant shall be asked whether there were any other absences and, when the information in that respect is complete, the words “No other” shall be written in this space. The word “None” shall be written in the space for this item if there have been no absences.

• Required evidence of residence, physical presence : Documentary evidence of residence or physical presence required for acquisition or retention of citizenship must be submitted. Prior to 1978 records of admissions at ports of entry were often prepared by inspecting officers for United States children born abroad, upon the occasion of their first arrival in the United States. Such arrivals can be verified by consulting Headquarters records.

Public Law 95-432, effective October 10, 1978, repealed the retention requirements of former section 301(b) of the Act. The amending legislation was prospective only and did not restore citizenship to anyone who, prior to October 10, 1978, had lost citizenship by failure to retain it in accordance with former section 301(b) of the Act. The Act of October 10, 1978 also redesignated section 301(a)(1) to (7) as section 301(a) to (g).

Public Law 103-416, effective April 24, 1995, provided that aliens who had lost citizenship by failure to meet the retention requirements could regain their citizenship by taking the oath of allegiance. (See section 324 of the Act.) That provision, though, states that the effect is prospective only and during the period between loss and reacquisition the citizen was an alien. See discussion in section (c)(2) of this field manual chapter.


•Person through whom citizenship claimed : Only one block should be checked.
• Information about parents : The information called for is that relating to the natural or adoptive parents, as pertinent.
•Photographs and name shown on certificate : A person’s name may have been changed by a common law change, which permits the adoption of a name at will, provided it is not done for a fraudulent purpose. In many states, however, the right of common law change has been abrogated, or permitted only before a certain date. When it is found that a person may validly claim a name other than that given at birth, the space for name on the form shall be corrected to show such name other than the name at birth if not already shown. When it cannot be establishe d there has been a change of name by any legally valid method, the “also known as” procedure for including the assumed name in the citizenship certificate should be employed.
• Relating files : Relating files of other family members may be examined in cases where there is only secondary documentary proof, or where there is reason to suspect fraud, or where the relating file contains a document which should be made available to the applicant which bears upon the eligibility of the applicant.
• Prior application : If a prior application was denied, unless the denial was because of a ruling which has since been changed or abrogated, the evidence supporting the new application shall be carefully checked by the examining officer to determine whether it is sufficient to warrant a change in the previous determination. Any change shall be supported by documentary evidence.
•Signature : Be certain the application is properly signed by the applicant if he or she is 14 years of age or older; otherwise by his parent or guardian.
•Affidavit : The affidavit is found at the end of the application. Insert the proper word to designate the person executing the application. Draw a line through the words “and of attached supplementary pages numbered ( ) to ( ), inclusive” if there are no supplementary pages; otherwise, if any answers have been continued on supplementary sheets, number the pages and insert the numbers in the parenthesis.

Number any corrections and insert the numbers in the parenthesis. If there are no corrections draw a line through the words “and that corrections numbered ( ) to ( ) were made by me or at my request.” Make certain that the person executing the affidavit fully understands the allegations and corrections in the application and supplementary sheets before he signs the affidavit.

•Examination of Person(s) Through Whom Claiming and Other Witnesses . A witness shall be called to testify at the examiner’s option only if that person’s testimony is needed to prove a particular point, and only if alternative proof is unavailable or more difficult to produce than the witness.

When required by the examiner, the best witness is usually a close relative of the applicant, since generally such a relative, particularly an older one, is well qualified to testify to the relationship between the applicant and the person(s) through whom citizenship is claimed.

Unless there are material discrepancies, an issue of fact to be resolved, a question of expatriation, possibility of revocation of naturalization, or criminal prosecution, the written testimony of the person(s) through whom citizenship is claimed, or that of the witness(es) is not required. When material discrepancies or other circumstances require that the testimony be taken and recorded (written), a supplemental report clarifying the discrepancies, explaining the circumstances, or establishing that such d o in fact defeat the claim to citizenship shall accompany the application

(3) Supplementary Actions .


(A) Question-and-Answer Statements and Affidavits . When the evidence of applicant’s eligibility or ineligibility for a certificate of citizenship consists largely of testimony rather than of primary or secondary documentary evidence, it is necessary to record the testimony in a sworn (or affirmed) question-and-answer statement, or an affidavit, preferably the former. Such sworn (affirmed) statements shall be taken also where there is a complex or controversial question of fact, as for example, with regard to applicant’s age or identity. (See Chapter 15.6 of this field manual.)

(B) Blood Tests . The burden is upon the applicant to establish relationship to a United States citizen and ordinarily such proof is easily adduced in the form of primary documentary evidence. In many cases this solid documentary evidence is lacking, and although oral evidence may be received in such cases, it may be appropriate to require reinforcement of such evidence with less fallible proof in the form of blood tests. The officer should follow the policy as set forth in Chapter 21.2(d)(1) of this field manual.

(4) Making a Decision . The burden of proof is upon the applicant to establish his right to the certificate.

(A) Review of Evidence. All of the evidence of record must be reviewed to determine whether the applicant has satisfactorily established all the links in the claim to citizenship. Although this is an administrative proceeding not circumscribed by the rules of evidence applicable to judicial proceedings, it should be kept in mind that the record may subsequently be reviewed in judicial proceedings. The decision on the application, therefore, should be supported by evidence in the record of proceeding.

The evidence submitted by the applicant may be primary or secondary. Essential facts relating to birth, death, marriage, and divorce shall be established by official public records, if available. Only if the officer is satisfied that the applicant has made a reasonable but unsuccessful effort to procure such a record, or has official knowledge that it is unobtainable, may the officer accept as sufficient other secondary evidence that the applicant presents.

A document is most valuable when it is a record created contemporaneously with, or reasonably proximate to, the happening of the event recorded. A delayed or nunc pro tunc record created long after the event does not have the evidentiary value that attaches to a record created contemporaneously with the event. Such a delayed record must be shown to be based upon probative supporting evidence. Where the record contains little or no corroborative evidence, the applicant must produce further, more convincing e vidence. Inquiry should also be made not only into the manner in which the delayed record was created, but also into the reasons for the delay. The likelihood that the facts are as alleged should also be considered in relation to all information developed.

(B) Failure to Appear . The notice to appear for an examination shall be given not less than 2 weeks before the scheduled date of interview. If the applicant fails to appear for the examination, or to otherwise explain his/her absence, or does not request an alternative examination or does not respond to Form N-14 within the allotted time, the application shall be denied in accordance with 8 CFR 103.2(b)(13).

(C) Continuing a Case . Form N-14 may be used to request submission of documentary evidence or additional information from an applicant at any stage of the proceedings. The applicant shall be given a date by which to submit the documentation in accordance with 8 CFR 103.2(b)(8).

(D) Approval . Upon completion of the examination of the applicant (or of the person acting on behalf of an underage applicant) if one is conducted, the officer conducting the examination shall complete the affidavit of the application.

If the appearance of the child has been waived under the words “upon personal appearance” shall be stricken from the opening sentence in the “Report and Recommendation on Application.” No conditional or contingent recommendation is to be made therein. The recommendation shown is to be unqualifiedly either to grant or to deny the application.

The delivery of the certificate shall be withheld until the Form I-151/I-551 (PRC) is surrendered. Be sure to obtain PRC, reentry or other Service or USCIS-issued document. If it is alleged such documents were lost or destroyed, the applicant’s (or his parent’s or guardian’s) claim in this regard should be recorded on a lost PRC affidavit, Record of Sworn Statement (Missing PRC).

You must complete the stipulation regarding the manner in which citizenship has been acquired or derived. For example, if the applicant claims citizenship at birth, the item shall reflect the manner in which the person through whom citizenship is claimed acquired citizenship; whether such person was a United States citizen at the time of the applicant’s birth; whether such person resided or was physically present in the United States prior to the applicant’s birth and, where applicable, the period of such r esidence or physical presence. Appendix 71-5 of this field manual contains sample stipulations representative of cases in various categories. These stipulations do not exhaust the factual situation in which citizenship may be derived or acquired, but they are to be used verbatim when appropriate to the case and will serve as guides in drafting other stipulations to meet different factual situations.

(D) Denial . If the application is denied, notice of the denial and an opportunity to appeal therefrom shall be given to the applicant on Form I-292. If the applicant wishes to appeal the denial, he or she must file the appeal within 30 days of the date of the decision with the office that made the original decision. The notice of appeal must be filed on Form I-290B, Notice of Appeal to the Administrative Appeal Office (AAO). The appeal will be decided by the AAO.

Chicago Immigration Judge Reports — Asylum grants and denials, fiscal year 2000 through the early months of 2005

Chicago Immigration Judge Reports — Asylum Grants and Denials

The data and analyses is from The Transactional Records Access Clearinghouse (TRAC), a data gathering, data research and data distribution organization associated with Syracuse University. Comprehensive, independent and nonpartisan information about U.S. federal immigration enforcement.
___________________________________

"Judge O. John Brahos was appointed as an Immigration Judge in October 1982. He received an undergraduate degree in 1956 from De Paul University, College of Commerce, and a Juris Doctorate from De Paul University, College of Law, in 1959. Prior to joining the Executive Office for Immigration Review, he served as general attorney, trial attorney, supervisory general attorney, and attorney examiner from 1971 to 1982 for the former Immigration and Naturalization Service in Chicago. Judge Brahos also served as an alternate member on the Board of Immigration Appeals in 1991, 1993, and 1994. He is a member of the Illinois Bar.

Judge Brahos decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Brahos is recorded as deciding 649 asylum claims on their merits. Of these, he granted 172, gave 2 conditional grants, and denied 475. Converted to percentage terms, Brahos denied 73.2 percent and granted (including conditional grants) 26.8 percent.

For Judge Brahos , the largest group of asylum seekers appearing before him came from Guatemala . Individuals from this nation made up 9.6 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Brahos were: China (8.8 %), Yugoslavia (7%), El Salvador (5.8%), Bulgaria (4.9%).

In the nation as a whole during this same period, major nationalities of asylum seekers, in descending order of frequency, were China (22.3%), Haiti (9.3%), Colombia (9.1%), Albania (4.0%), India (3.9%), Guatemala (3.4%), Indonesia (3.0%), El Salvador (2.4%), Armenia (2.1%), Mexico (1.9%), and Russia (1.9%)."
___________________________________________________

"Judge Samuel Der-Yeghiayan was appointed Immigration Judge in December 2000. He received his B.A. from Evangel College in 1975 and his J.D. from Franklin Pierce Law Center in 1978. Judge Der-Yeghiayan was selected in 1978 as a trial attorney for the Immigration and Naturalization Service (INS) in Chicago under the Attorney General's Honor Program. In 1981, he was promoted to the position of district counsel for the Chicago District of the INS where he served until his appointment as an Immigration Judge in December 2000. He received the INS "District Counsel of the Year" award in 1998 and the Frank J. McGarr award for "Outstanding Government Attorney of the Year" in 1986 from the Chicago Chapter of the Federal Bar Association. He is a member of the Illinois Bar and the U.S. Supreme Court.

In 2000, Der-Yeghiayan was appointed, under the Clinton administration, an immigration judge in the Department of Justice Executive Office for Immigration Review. On April 6, 2001, Der-Yeghiayan was sworn in as an Immigration Judge. President George W. Bush nominated him on March 5, 2003 for the district court seat vacated by Marvin E. Aspen, and the Senate unanimously confirmed him on July 14, 2003.

Detailed data on Judge Der-Yeghiayan decisions are available for the period covering fiscal year 2000 through the early months of 2003. During this period, Judge Der-Yeghiayan is recorded as deciding 258 asylum claims on their merits. Of these, he granted 80, gave 1 conditional grants, and denied 177. Converted to percentage terms, Der-Yeghiayan denied 68.6 percent and granted (including conditional grants) 31.4 percent." ____________________________________________________________

"Judge Jennie L.Giambastiani was appointed as an Immigration Judge in May 2002. She received a Bachelor of Arts degree in 1983 from Loyola University of Chicago, and a Juris Doctorate from Loyola University School of Law in 1986. Prior to becoming an Immigration Judge, from April 1987 until May 2002, Judge Giambastiani served as district counsel, deputy district counsel, assistant district counsel, and supervisory legalization officer for the former Immigration and Naturalization Service in Chicago. Judge Giambastiani is a member of the Illinois Bar.

Detailed data on Judge Giambastiani decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Giambastiani is recorded as deciding 274 asylum claims on their merits. Of these, she granted 101, gave 12 conditional grants, and denied 161. Converted to percentage terms, Giambastiani denied 58.8 percent and granted (including conditional grants) 41.2 percent.

For Judge Giambastiani , the largest group of asylum seekers appearing before her came from China . Individuals from this nation made up 16 % of her caseload. Other nationalities in descending order of frequency appearing before Judge Giambastiani were: Guatemala (10.2 %), Albania (8.7%), Iraq (4%), Ukraine (4%)."
____________________________________________

"Judge James R. Fujimoto was appointed as an Immigration Judge in June 1990. He received an undergraduate degree in 1976 from the University of Chicago, and a Juris Doctorate from DePaul University in 1979. Judge Fujimoto was a partner in the law firm of Alexander, Fennerty & Fujimoto in Chicago from 1981 to 1990. From 1978 to 1981, he served as a law clerk and then associate attorney for Masuda, Funai, Eifert & Mitchell, also in Chicago. Judge Fujimoto is a member of the Illinois Bar.

Detailed data on Judge Fujimoto decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Fujimoto is recorded as deciding 736 asylum claims on their merits. Of these, he granted 222, gave 9 conditional grants, and denied 505. Converted to percentage terms, Fujimoto denied 68.6 percent and granted (including conditional grants) 31.4 percent."
_______________________________________________________

"Judge Carlos Cuevas was appointed as an Immigration Judge in February 1994. He received a Bachelor of Arts degree from DePaul University in 1979, and a Juris Doctorate from DePaul University, College of Law, in 1982. From 1989 to 1994, Judge Cuevas served as an administrative law judge with the Illinois Human Rights Commission in Chicago. From 1986 to 1989, he was in private practice in Chicago. Judge Cuevas served as an attorney with the Legal Assistance Foundation of Chicago from 1982 to 1986. He is a member of the Illinois Bar. Detailed data on

Judge Cuevas decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Cuevas is recorded as deciding 703 asylum claims on their merits. Of these, he granted 314, gave 20 conditional grants, and denied 369. Converted to percentage terms, Cuevas denied 52.5 percent and granted (including conditional grants) 47.5 percent.

For Judge Cuevas , the largest group of asylum seekers appearing before him came from Guatemala . Individuals from this nation made up 12.2 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Cuevas were: China (7 %), Yugoslavia (5.6%), Albania (5.5%), El Salvador (4.6%)." __________________________________________________________

"Judge Craig M. Zerbe was appointed as an Immigration Judge in August 1985. He received a Bachelor of Arts degree. from La Salle College in 1970, and a Juris Doctorate from Temple University Law School in 1975. From 1980 to 1985, Judge Zerbe served as general attorney in the Litigation Division at the former Immigration and Naturalization Service in Chicago. From 1970 to 1972, he served in the U.S. Army. Judge Zerbe is a member of the Pennsylvania Bar.

Detailed data on Judge Zerbe decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Zerbe is recorded as deciding 773 asylum claims on their merits. Of these, he granted 318, gave 9 conditional grants, and denied 446. Converted to percentage terms, Zerbe denied 57.7 percent and granted (including conditional grants) 42.3 percent.

For Judge Zerbe , the largest group of asylum seekers appearing before him came from China . Individuals from this nation made up 9 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Zerbe were: Guatemala (8.8 %), Albania (7.5%), Bulgaria (4.9%), Pakistan (4.8%)." ___________________________________________________________

"Judge Robert D. Vinikoor was appointed as an Immigration Judge in January 1984. He received a Bachelor of Science degree from the University of Delaware in 1971, and a Juris Doctorate from the University of Baltimore in 1976. From 1982 to 1984, he was a special assistant U.S. attorney at the U.S. Attorney's Office in Chicago. He also served as trial attorney in Chicago, and general attorney in Miami, Florida, with the former Immigration and Naturalization Service from 1976 to 1982. Judge Vinikoor also serves as an adjunct professor at Loyola University School of Law. Judge Vinikoor is a member of the Maryland, New Jersey, Florida, and Illinois Bars.

Detailed data on Judge Vinikoor decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Vinikoor is recorded as deciding 1015 asylum claims on their merits. Of these, he granted 239, gave 19 conditional grants, and denied 757. Converted to percentage terms, Vinikoor denied 74.6 percent and granted (including conditional grants) 25.4 percent.

For Judge Vinikoor, the largest group of asylum seekers appearing before him came from China . Individuals from this nation made up 11 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Vinikoor were: Guatemala (9.7 %), Albania (5%), Somalia (4.1%), El Salvador (3.6%)."

New Illinois law mandates car breath test device for first-offense DUIs. Illinois DUI lawyer

Public Act 095-0400, SB0300, 95th General Assembly
This Act takes effect on January 1, 2009.

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Bill Status of SB0300

A new Illinois law requires first-time drunk driving offenders to install breath test devices in their vehicles and pass the test every time they try to start their engines.

If the driver's breath exceeds the alcohol limit, the apparatus ensures the car won't start.

Gov. Rod Blagojevich signed the legislation on August 24, 2007, making Illinois the fourth state to mandate the gadget.

The other states that require it are New Mexico, Arizona and Louisiana, according to the National Conference of State Legislatures.

When the law goes into effect in 2009, it will effect approximately 30,000 offenders in Illinois who have had their licenses suspended on DUI arrests, according to the secretary of state's office.

The alcohol ignition interlock devices must be rented and cost about $150 to install. There are also monthly fees.

"We will not tolerate drunk drivers on our streets," Blagojevich said in a statement. "This law ... will help make sure impaired drivers can't get back on the road. But if they do, they'll face tough penalties."

If offenders attempt to drive someone else's vehicle to avoid the breath tests, they could face jail time.

About 3,000 people in Illinois currently have the devices in their vehicles. Most are second-time drunk driving offenders.
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Deletes everything after the enacting clause. Reinserts the provisions of the engrossed bill, with various changes. In the State Finance Act, provides for creation of the Indigent BAIID Fund and the Monitoring Device Driving Permit Administration Fee Fund (rather than the Alcohol Monitoring Device Fund). Provides that a first offender who receives a statutory summary suspension shall be issued a monitoring device driving permit (rather than a monitoring device driver's license), except under specified circumstances. Provides that a person issued a monitoring device driving permit may not drive a commercial vehicle. Establishes other restrictions. Provides that a person who received a judicial driving permit before the effective date of the bill may continue to drive on that permit. Provides that a person who fails to comply with the requirements of a monitoring device driving permit commits the offense of driving on a revoked or suspended license. Provides that a person who holds a monitoring device driving permit convicted of the offense for driving a vehicle not equipped with an ignition interlock device, or a person eligible for a monitoring device driving permit convicted of driving with a drug or alcohol-related summary suspension, is guilty of a Class 4 felony and subject to 30 days of imprisonment. Amends the Unified Code of Corrections. Provides that a person who commits one of these offenses is not eligible for court supervision. 625 ILCS 5/1-144.5 new. Changes the effective date from January 1, 2008 to January 1, 2009.

House Amendment No. 2
Provides that, after a drug- or alcohol-related statutory summary suspension has been imposed on a first offender, the circuit court shall, unless the offender has opted in writing not to have a monitoring device driving permit issued (rather than if requested by the offender), order the Secretary of State to issue the offender a monitoring device driving permit.

Adjudicator's Field Manual, USCIS, Redacted Public Version- Updated Through June 18, 2007

Table of Contents

Appendices

Transmittal Memoranda

Immigrants and Other Permanent or Semi-Permanent Classifications.
Chapter 20	Immigrants in General.
20.1	Numerical Limitations and the Visa Bulletin
20.2	Petition Validity
20.3	Petition Revocation
20.4	Petition Withdrawal
20.5	Enforceable Affidavits of Support
Chapter 21	Family-based Petitions and Applications.
21.1	General Information About Relative Visa Petitions
21.2	Factors Common to the Adjudication of All Relative Petitions
21.3	Petition for a Spouse
21.4	Petition for a Child, Son, or Daughter
21.5	Petition for an Orphan
21.6	Petition for a Hague Convention Adoption [Reseved]
21.7	Petition for an Amerasian
21.8	Petition for a Parent
21.9	Petition for a Sibling
21.10	Refugee/Asylee Relative Petition
21.11	Petition for Spouse, Child, or Parent of Certain Deceased U.S. Armed Forces Members
Chapter 22	Employment-Based Petitions, Entrepreneurs and Special Immigrants.
22.1	Prior Law and Historical Background
22.2	Employment-based Petitions (Forms I-140)
22.3	Special Immigrant Cases
22.4	Employment Creation Entrepreneur Cases
Chapter 23	Adjustment of Status to Lawful Permanent Resident.
23.1	Prior Law and Historical Background.
23.2	General Adjustment of Status Issues
23.3	Medical Examinations.
23.4	Presumption of Lawful Admission and Creation of Record under 8 CFR 101

23.5	Adjustment of Status under Section 245 of the Act
23.6	Refugee and Asylee Adjustment under Section 209 of the Act
23.7	Registration of Lawful Permanent Residence under Section 249 of the Act
23.8	Section 289 Cases
23.9	Section 7 of the Central Intelligence Agency Act of 1949 Cases
23.10	Adjustment of Status under Section 13 of the Act of September 11, 1957 (8 U.S.C. 1255b)
23.11	Cuban Adjustment Act Cases
23.12	Adjustment of Status under NACARA (sec. 202 of Pub L 105-100)
23.13	Adjustment of Status under HRIFA (sec. 902 of Pub L 105-277)
23.14	Adjustment of Status for Certain Syrian Nationals Granted Asylum
Chapter 24	Legalization.
24.1	Historical Background
24.2	Legalization under Section 245a of the Act
24.3	Special Agricultural Worker (SAW) and Replacement Agricultural Worker (RAW) Programs
24.4	Family Unity Program
24.5	Legalization Provisions of the LIFE Act.
24.6	LIFE Act Family Unity Provisions
Chapter 25	Petitions for Removal of Conditions on Conditional Residence.
25.1	Immigration Marriage Fraud Amendments of 1986 (Form I-751)
25.2	Entrepreneurs (Form I-829)
Chapter 26	Rescission of Adjustment to Lawful Permanent Resident Status.
26.1	Adjudication Issues.
26.2	Adjudication Procedures.

III. Nonimmigrants and Other Temporary Status Aliens

Chapter 30	Nonimmigrants in General.
30.1	Maintaining Status
30.2	Extension of Stay for Nonimmigrants
30.3	Change of Nonimmigrant Status Under Section 248 INA
30.4	Replacement of Arrival-Departure Records
30.5	Status as a Foreign Government Official or Employee of an International Organization
30.6	Extensions of Stay for Certain A and G Nonimmigrants
30.7	Unauthorized Employment and Other Incidents Involving A or G Nonimmigrants
30.8	Affidavits of Support for Nonimmigrants
30.9	Geographically Restricted Nonimmigrants
30.10	Termination of Approval (Revocation of Approval of Petition)
30.11	Adjustment of Status to Nonimmigrant
30.12	Nonimmigrant Health Care Workers
Chapter 31	Petitions for Temporary Workers (H Classifications).
31.1	Background
31.2	General Requirements for H Petitions
31.3	H1-B Classification and Documentary Requirements
31.4	Agricultural Workers (H-2A)
31.5	Temporary Service or Labor Workers (H-2B)
31.6	Trainees (H-3)
31.7	Nurses (H-1C)
31.8	Strikes and Lockouts Involving H Petition Beneficiaries
31.9	Dependents
Chapter 32	Petitions for Intracompany Transferees (L Classification).
32.1	Background
32.2	Terminology
32.3	Individual L Petition Process
32.4	Blanket Petition Process
32.5	Individual Eligibility under Blanket Petitions
32.6	Technical Issues
Chapter 33	Petitions for Artists, Entertainers, Athletes and Others of Extraordinary Ability or Achievement (O & P Classifications).
33.1	Background
33.2	Terminology
33.3	Consultation Requirements and Procedures
33.4	Aliens with Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics, and Accompanying Aliens (O-1 and O-2)
33.5	Internationally Recognized Athletes and Entertainers (P-1)
33.6	Reciprocal Exchange Artists and Entertainers (P-2)
33.7	Culturally Unique Artists and Entertainers (P-3)
33.8	Expedite Procedures
33.9	Technical Issues
33.10	Special Agreements
Chapter 34	Other Employment Authorized Nonimmigrants (E, I & R Classifications).
34.1	Background
34.2	Treaty Traders
34.3	Treaty Investors
34.4	Information Media Representatives
34.5	Religious Occupation-Based Nonimmigrants
34.6	E-3 Specialty Occupation Workers
Chapter 35	Students and Exchange Visitors (F, J, M & Q); School Approvals.[Reserved. Undergoing major revision]
Chapter 36	[Reserved]
Chapter 37	Nonimmigrants Intending to Adjust Status (K and V Classifications).
37.1	Reserved (undergoing revision as 05-10-2006)
37.2	Reserved (undergoing revision as 05-10-2006)
37.3	Reserved (undergoing revision as 05-10-2006)
37.4	Provisions for the V Nonimmigrant Classification
Chapter 38	Temporary Protected Status and Deferred Enforced Departure.
38.1	Temporary Protected Status
38.2	Deferred Enforced Departure

IV. Waivers and Related Matters

Chapter 41	Waiver of Excludability for Immigrants.
41.3	Waiver of Medical Grounds of Inadmissibility.
41.6	Waivers of Inadmissibility for Refugees and Asylees.
Chapter 42.	Application for Advance Permission to Enter as a Nonimmigrant.
Chapter 43	Consent to Reapply After Deportation or Removal.
43.1	General.
43.2	Adjudication Process.
Chapter 44	[Reserved]
Chapter 45	Waiver of Section 212(e) Foreign Residence Requirement.
45.1	Background
45.2	General Considerations
45.3	Waiver Based on Exceptional Hardship to USC or LPR Spouse or Child.
45.4	Waiver Based on a Claim of Persecution
45.5	Waiver Based on a “No Objection” Letter
45.6	Waiver Based on a Request by a U.S. Government Agency, Not Involving a Foreign Medical Graduate
45.7	Waiver Based on Employment with a Designated Health Facility or Health Care Organization, or Federal Agency Involved in Medical Research or Training under Section 214(l) of the Act.

V. Travel and Identity Documents

Chapter 51	Application to Replace Permanent Resident Card.
51.1	Historical Information.
51.2	Adjudication and Production Processes and Issues.
51.3	Form I-551 Renewal Policy and Procedure.
51.4	Naming Conventions; Use of Full Legal Name on All USCIS Issued Documents.
Chapter 52	Reentry Permits.
52.1	General
52.2	Filing and Receipting Procedures.
52.3	Adjudication
52.4	Production and Delivery.
Chapter 53	Refugee Travel Documents.
53.1	Background
53.2	Filing and Receipting Procedures
53.3	Adjudication
53.4	Production and Delivery
53.5	Special Considerations
Chapter 54	Advance Parole Documents and Boarding Letters.
54.1	Background.
54.2	Filing and Receipting Procedures.
54.3	Adjudication
54.4	Special Considerations
Chapter 55	Employment Authorization Documents.[Reserved. Undergoing major revision]
Chapter 56	Other USCIS and DHS Documents.
56.1	Replacement of Nonimmigrant Arrival/Departure Record.
56.2	USC ID Cards.
56.3	Kickapoo Cards.
56.4	North American Indians Born in Canada.

Nationality and Naturalization

Chapter 71	Citizenship.
71.1	Acquisition and Derivation
Chapter 72	Processes/Procedures for Conducting Naturalization Interviews.
72.1	Overview of the Examination Process
72.2	Examination Preparation
72.3	Decision Process
Chapter 73	The Eligibility Requirements for Naturalization.
73.1	Lawfully Admitted for Permanent Residence
73.2	[Reserved]
73.3	Continuity of Residence
73.4	Jurisdiction
73.5	Physical Presence
73.6	Good Moral Character
73.7	Attachment to the Constitution
73.8	English and Civics
Chapter 74	Examination of Form N-400.
74.1	General Information and Introduction to Form N-400
74.2	Part-by-Part Discussion of Form N-400 Data
74.3	Closing Actions
Chapter 75	The Oath of Naturalization.
75.1	The Oath
75.2	The Oath Ceremony
75.3	Ceremony-Related Issues
Chapter 76	Denaturalization.
76.1	General
76.2 15-2 Non-Adversarial Interview Techniques 15-3 SRMT Search Request Form 16-1 USCIS Forms - FD-258 Requirements 20-1 The New Affidavit Of Support 21-1 List of States Recognizing Common Law Marriages and Their Requirements 21-2 Orphan Case Related Cables to Consulates 21-3 American Associations of Blood Banks 21-4 U.S. Public Law 108-136 (National Defense Authorization Act for Fiscal Year 2004), Sec. 1701. Requirements for Naturalization through Service in the Armed Forces of the United States 21-5 U.S. Department of Defense, U.S. Department of Veterans Affairs, and U.S. Coast Guard Points-of-Contact for Public Law 108-136 (National Defense Authorization Act for Fiscal Year 2004) 21-6 Adam Walsh Child Protection and Safety Act of 2006 22-1 Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants 23-1 Civil Surgeon List 23-2 Nicaraguan Nationality Requirements 23-3 Haitian Nationality Requirements 23-4 Text of Commissioner's Memorandum on Eligibility for Permanent Residence under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a Designated Port of Entry 23-5 Basic Sworn Statement for Section 13 Cases 23-6 Matter of Buschini 25-1 Frequently Asked Questions About Form I-829 25-2 Sample NTA for Terminated Immigrant Investor 25-3 Points of Contact for EB-5 Cases 25-4 Model Notices to Appear (NTAs) 30-1 [Reserved] 31-1 List of Occupational Categories for H, J and L Nonimmigrants 31-2 [Reserved] 31-3 Request for Evidence Checklist for H-1B Petitions 31-4 Special Filing Situations Under the H Classifications 32-1 Interpretation of Specialized Knowledge 33-1 List of Organizations which Provide Consultations for O and P Petitions 35-1 Visa Class Change for Aktion Sühnezeichen Friedensdienste (ASF) or Action Reconciliation Service for Peace 41-1 Guidance Regarding Waivers for HIV+ Refugees 41-2 CDC Form For Applicants with HIV Infection 41-3 Headquarters Program Responsibility For Nonimmigrant Waivers of Inadmissibility 41-4 Instructions from CDC to Civil Surgeons on Widespread Unavailability of Certain Vaccines 43-1 Guide to Requirement of Consent to Reapply for Admission to the U.S. After Deportation or Removal 45-1 Addendum to Section 212(e) Waiver Approvals 51-1 Form I-551, Permanent Resident Card, Renewal Policy and Procedure - Final Phase; Process for I-90s 55-2 Letter from Department of Defense on Employment of NATO Member Dependents 55-3 Issuance of Employment Authorization Cards to Asylees and Refugees As Part of the Border Security Act 71-1 Nationality Chart # 1 - Children Born Outside U.S. in Wedlock 71-2 Nationality Chart # 2 - Children Born Outside U.S. out of Wedlock 71-3 Nationality Chart # 3 - Derivative Citizenship of Children 71-4 Nationality Chart # 4 - Section 322: Natural or Adoptive Child of a U.S. Citizen 71-5 Stipulations 71-6 Prior Laws Affecting Citizenship Claims 71-7 Implementation Instructions for Title I of the Child Citizenship Act of 2000 71-8 Addition of Citizen Grandparents and Citizen Legal Guardians as Eligible Applicants Pursuant to INA 322 71-9 Processing Worksheet for N-600 Cases 72-1 NQP4 Procedures 72-2 N-400 Processing Worksheets Clarifications 72-3 Naturalization File Transfer Procedures 72-4 File Transfer Procedures Federal Record Center POC Listing 72-5 Form FD-258 Fingerprint Card - Instructions for N-400 Form FD-258 Processing 72-6 Sample Sworn Statement Regarding Fingerprint Waivers Due to Age or 2nd Rejection by FBI 72-7 Sample Sworn Statement Regarding Missing Alien Registration Card 72-8 Sample Sworn Statement Regarding Cases Involving T Files 72-12 Complete File Review Implementation 72-13 Disability Naturalization Applications 72-15 Effect of Failure to Register for Selective Service on Eligibility for Naturalization 72-16 Processing N-400s with Updated or Expired FD-258 Control Numbers 72-18 Guidance on the Acceptance and Handling of FD-258 Fingerprint Cards 72-19 Faciliated Military Service Member Naturalization 72-20 Scheduling Military N-400 Cases 72-21 Military G-325B Processing 72-22 Policy Regarding Section 334 of the INA 73-1 Citizenship Education and Naturalization Information 73-2 Text of USCIS Booklet M-289 73-3 U. S. Government Structure 73-4 U. S. Government Structure Level I 74-6 [Reserved] 74-7 Corrections to A Guide to Naturalization and the Effect of Failure to Register for Selective Service on Naturalization Eligibility 74-8 Relating to False Claims to US Citizenship 74-9 Legal Consequences of Voting by an Alien Prior to Naturalization 74-10 Voter Registration and Standardized Date Citizenship Testing 74-11 Institution of Deportation Proceedings: Legalization or SAW Applicants; Naturalization of Persons Who Filed Fraudulent Legalization or SAW Applications 74-13 Continuity of Residence for Naturalization Purposes 74-14 Recent General Counsel Opinions Affecting Eligibility for Naturalization 74-15 Implementation Instructions for the Amended Version of the Hmong Veterans’ Naturalization Act of 2000 74-16 IRS Form 2555 74-17 IRS Publication 54, Chapter 54 74-18 IRS Earned Income Credit Worksheet 74-19 1991 Version of Form N-400 74-20 Update of the Implementation Instructions for Title I of the Child Citizenship Act of 2000, Public Law 106-395 (CCA) 74-21 Guidance on Making the Naturalization Process Accessible to Applicants with Disabilities 74-22 Use of Adjudication Officer's Full Name and Signature on Official Immigration Documents 74-23 NQP Compliance for Cases Requiring Special Handling 74-24 Form N-470: Application to Preserve Residence for Naturalization Purposes (Under Section 316(b) or 317 of the Act) 74-25 Instructions Regarding the Expanded Meaning of Section 319(a) 75-1 Instructions Regarding the Use of Naturalization Quality Procedures (NQP) Attachment #4 75-2 The Attorney General's Model Plan 75-3 Universal Distribution of President’s Letter 75-4 Guidelines for Voter Registration at Naturalization Ceremonies	Adjudicator Actions

Nonimmigrants, Maintaining Status, Extension of Stay for Nonimmigrants, Change of Nonimmigrant Status Under Section 248 INA

Maintaining Status.

(a) General . Section 101(a)(15) of the INA specifies various classes of persons admissible to the U.S. as nonimmigrants. Requirements for admission in each category are discussed 8 CFR 214 and in Chapter 15.4 of the Inspector’s Field Manual . This chapter will discuss general requirements for maintaining status, changing status, and obtaining extensions of stay. Requirements for maintaining and changing status which apply only to specific nonimmigrant classes are discussed in Chapters 31 through 37 and Chapter 15 of the Inspector’s Field Manual . Matters relating to parole of aliens are contained in Chapter 16 of the Inspector’s Field Manual , and matters relating to Temporary Protected Status are contained in Chapter 38 of this manual.

(b) Activities Consistent with Status . A nonimmigrant may engage only in activities consistent with his or her status. In general, the filing of an application for a different status or even the approval of a petition (for example an I-129 petition to accord H, L, O or P status), does not constitute authorization to engage in the activities permitted in the new status. (However, under certain conditions, an alien who is already in H-1B status may commence working for a new employer upon the filing of a new petition by that new employer.) With regards to a change of status applicant, it is only the formal approval of the change of status application by USCIS that constitutes authorization to engage in activities consistent with that new statu s. An alien who, prior to approval of a change of status, engages in activities not consistent with his or her present status is at risk fo being found to be in violation of status in the event the application is denied, although approval is often retroactive to the date of the original application [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976), and Matter of Dacanay , 16 I&N Dec. 238 (BIA 1977)]. However, in accordance with 8 CFR 248.1(c) , an alien may be granted a change of status to that of F-1 or M-1 student even though he or she may have begun attending the school even before the application was submitted.

There is a significant body of information available concerning what activities are or are not appropriate for particular visa classifications. The B-1 and B-2 classifications have historically been the object of many such interpretative discussions. If you have any questions concerning particular activities, you should consult available resources including: 8 CFR 214.2; Chapter 15.2 of the Inspector’s Field Manual ; the Department of State’s Foreign Affairs Manual (FAM), and precedent decisions.

(c) Voluntary Departure vs. Nonimmigrant Status . Voluntary departure is not a nonimmigrant status. It is, however, regarded as an authorized period of time for purposes of section 212(a)(9). Accordingly, time spent in voluntary departure does not add to an alien’s unlawful presence. For example, a B-2 nonimmigrant files for an extension after his stay expires. The extension is denied and the alien is granted 15 days of voluntary departure. In calculating unlawful presence, count as unlawful the days between the expiration of the B-2 status and the issua nce date of the Form I-210 granting voluntary departure, as well as any time after the voluntary departure expired, but do not count the 15 day voluntary departure period itself. Voluntary departure is discussed in 8 CFR 240.25 .

Although voluntary departure time is not counted when calculating unlawful presence, an alien who has been given a period of voluntary departure is not considered to be maintaining status for purposes of receiving an extension or status change [See Matter of Lennon , 15 I&N Dec. 9 (BIA 1974).].

(d) Unlawful Presence under Section 212(a)(9)(B) of the Act .

(1) Counting of Unlawful Presence for Nonimmigrants . An alien who remains in the United States beyond the authorized period of stay is unlawfully present and becomes subject to the 3- or 10-year bar to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants:

(A) Nonimmigrants Admitted until a Specific Date . Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the authorized period of admission expires, as noted on Form I-94, Arrival/Departure Card.

(B) Nonimmigrants Admitted Duration of Status (D/S) . Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date USCIS finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regardin g voluntary departure as a period of stay authorized by the Attorney General.

(2) Authorized Period of Stay . USCIS has also designated the following as authorized periods of stay:

• Voluntary departure;

• Refugee status;

• Asylee status;

• Grants of withholding or deferral of removal under the United Nations Convention Against Torture;

• Legalization and special agricultural worker applications for lawful temporary residence which are pending through an administrative appeal;

• Grants of withholding or suspension of deportation, or cancellation of removal;

• Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of Pub. L. 99-603 through administrative appeal;

• Grants of Temporary Protected Status and Deferred Enforced Departure;

• Applications for adjustment of status under section 245 of the Act (including section 245(i)), and registry applications under section 249 of the Act, if properly filed with INS or USCIS. The period of stay authorized by the Attorney General continues if the application is denied and renewed in proceedings, through review by the Board of Immigration Appeals (BIA). The alien must, however, be eligible to renew the denied application in proceedings and have a legal basis for renewing that application; and

• Certain pending applications for extension of stay or change of status. See sections (d)(3) and (d)(4) of this chapter.

(3) Requirements for Authorized Period of Stay with Respect to Pending Change of Status and Extension Applications .

(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) .

(B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and

(C) The change of status or extension application has been pending with INS or USCIS for more than 120 days after the date the I-94 expired.

(4) Effect of Decision on Unlawful Presence and Tolling .

(A) Approved Applications . If USCIS approves an E/S or C/S application, the alien will be granted a new authorized period of stay, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted (or to which the alien had previously be changed) pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to aliens admitted until a specific date and aliens admitted D/S.

(B) Denied applications .

(i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment . If the C/S or E/S application is denied because it was untimely or frivolous, or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, provided the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision.

(ii) Denial of Late Applications . If the application was filed late and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For aliens admitted D/S, unlawful presence begins accruing on the date of denial.

(5) Voluntary Departure as an Authorized Period of Stay . USCIS has designated voluntary departure as an authorized period of stay. However, any unlawful presence that accrued before the date the voluntary departure was actually granted is not eliminated. And, if the alien does not make a timely departure, the counting of unlawful presence resumes on the day after the required departure date and continues on until the alien finally departs. Moreover, the alien becomes subject to civil penalties and is ineligible for any further voluntary departure or other forms of re lief, such as adjustment of status, registry, and cancellation of removal.

(6) Effect of Departure .

(A) Applicants for Nonimmigrant Visas . Date certain nonimmigrants who file an application for change of status or extension of stay who depart the United States while the application is pending and subsequently apply for another nonimmigrant visa must establish, to the satisfaction of the consular officer, that the application was timely filed and that it was not frivolous. The requirement that the application was timely may be established through the submission of evidence of the date the previously authorized stay expired, together with a co py of a dated filing receipt, a canceled check payable to INS or USCIS for the E/S or C/S application, or other credible evidence of a timely filing. To be considered non-frivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose. In determining whether an E/S or C/S application was non-frivolous, DOS has instructed consular posts that it is not necessary to make a determination that INS or USCIS would have ultimately ruled in favor of the alien. If the consular officer finds that the alien qualifies for a visa in the same category as the visa classification that was sought in the abandoned E/S or C/S application, the consular officer may presume that the E/S or C/S application was not frivolous. The question then turns to whether the alien engaged in unauthorized employment before the E/S or C/S application was filed or while it was pending. Consular officers will determine this through the routin e course of questioning. Consular officers may also review and consider evidence of an alternate means of support during the time in which the alien was not authorized to work. If the consular officer determines that the application was timely filed, non-frivolous, and that the alien did not engage in unauthorized employment, the alien is not subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i) of the Act. See Inspector’s Field Manual Chapter 15.15 for a discussion of the effect of the alien’s departure on section 222(g). D/S nonimmigrants who depart the United States while an application for change of status or extension of stay is pending generally do not trigger the 3- and 10-year bars under section 212(a)(9)(B)(i) of the Act, unless a formal finding of a status violation has been made, and the alien has not been granted any other authorized period of stay, such as voluntary departure.

(B) Applicants for Admission at a Port of Entry (POE) . When a date certain nonimmigrant files an application for change of status or extension of stay and departs the United States while the application is pending, officers at POEs should use the same procedures followed by consular officers to determine whether the application was timely and non-frivolous, and whether the alien engaged in unauthorized employment. If the extension application was timely and non-frivolous and the alien did not engage in unauthorized employment, the alien is not subject to the 3- or 10-year bar to admission. [See Inspector’s Field Manual, Chapter 15.15 for the applicability to section 222(g) ].
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Extension of Stay for Nonimmigrants.

(a) General . Except as stated below, a nonimmigrant admitted for a specified period of time may request an extension of his or her admission period in order to continue to engage in those activities permitted under the visa category in which he or she was admitted. General requirements (such as those relating to passport validity, waivers of inadmissibility, and posting of a bond) for an extension of stay are discussed in 8 CFR 214.1(a) . An application for an extension of stay is filed on Form I-129 , Petition for a Nonimmigrant Worker, or Form I-539 , Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 214.1(c) , depending upon the nonimmigrant classification of the applicant. Form I-539 is used primarily for B-1/B-2, A-3/G-5, and M-1/M-2 extensions, as well as for student reinstatements and extensions of some dependents not included on the I-129 extension for a principal alien. Form I-129 is used to extend nonimmigrants working for a specific employer.

(b) Limitations . Aliens in classes C, D, K, WT, WB, and TWOV are ineligible for an extension of stay.

(c) Use of Form I-539 for Extension of Stay .

(1) Initial receipting . The applicant must file Form I-539 with the service center having jurisdiction over his or her residence, except student (F or M) reinstatement requests, which are filed at local offices. Editions of Form I-539 prior to the most current edition should not be accepted for purposes of extension of stay. A single application may be filed by a family group, provided all family members hold the same status or derivative status.

(2) Preliminary Review . Preliminary review, in addition to general items discussed in Chapter 10.2, includes the following:

(A) The applicaton must be filed wit the office having jurisdiction. All I-539 extension requests must be filed at the appropriate service center except those relating to F/M student reinstatements.

(B) Aliens in B-1 or B-2 status must provide a statement explaining the purpose of the requested extension, departure arrangements and what, if any, effect the proposed extensions would have on his or her permanent residence.

(C) A-3 and G-5 aliens must submit an executed Form I-566, a letter from their employer detailing their job duties and evidence of the employee’s status (usually an I-94 copy). [See also Chapter 30.6 .]

(D) J nonimmigrants must submit a current IAP-66 covering the requested period of extension.

(E) Dependents of various temporary workers must submit evidence of the principal alien’s status (or evidence of a pending petition for such status).

(F) Students seeking reinstatement must submit evidence of eligibility, including financial information and a current I-20.

(G) (Chapter 30.2(c)(2)(G), revised 07-27-2005) .The applicaiton must contain the original or copy of the arrival portion of the applicant’s Form I-94, if any. Original I-94 forms are required in cases which are adjudicated at district offices. Copies may be submitted in cases which are adjudicated at service centers.

Note 1: If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A includes a replacement I-94, which is to be attached to the original. Upon approval, return any original I-94 which was improperly submitted.

Note 2: If an extension applicant claims to have lost his or her I-94 , a separate Form I-102 , Application for Replacement/Initial Arrival/Departure Record should be filed. Although a CLAIMS-generated I-94 is issued in the course of adjudicating the extension application, the instructions indicate that it is to be attached to the original I-94 (or the replacement original). Verify arrival from TECS or, if no record can be found, obtain a copy of the applicant’s passport page containing the admission stamp. Please consult TECS manual for current instructions.

(H) Dependents . When an application for an extension of a dependent is not filed concurrently with the principal alien, evidence of the principal’s status must accompany the application. This information may be verifiable in CLAIMS. There is no dependent status for Q-1 or TN nonimmigrants; however such dependents may separately qualify for nonimmigrant status, usually B-2.

( Note: The Q-3 nonimmigrant category pertains only to dependents of Q-2 nonimmigrants.)

(3) Adjudication . Nonimmigrant extensions are generally simple to adjudicate. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to ensure the request is acted upon while it is still relevant. Timely adjudication is also important because an applicant is not considered to be maintaining status simply because an extension application is pending [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976)]. The following actions, in addition to the general steps described in Chapter 10.3 , are ordinarily required during the I-539 adjudication process:

(A) Determine If the Application Was Timely Filed . Although an application for extension of stay is ordinarily required to be submitted before the expiration of the applicant’s previously authorized period of stay, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the appl icant is otherwise a bona fide nonimmigrant, and whether the applicant has been apprehended and placed in proceedings by the Service.

Note 1: Issues surrounding the alien’s original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office. If it is established that the applicant was not entitled to the status initially, the application should be denied and (if appropriate) the information provided to the visa issuing post or port-of-entry through normal intelligence and liaison procedures. Additionally, the information may form the basis of an additional charge (under section 237(a)(1)) on the Notice to Appear initia ting removal proceedings. In extreme cases, where employee misconduct is suspected, the Office of Professional Responsibility should be advised.

Note 2: Inadmissibility Issues . At times, you may encounter an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and bee n granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien applied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspect ing officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(B) Verify Passport Validity . An applicant need not submit a valid passport with his or her application since Part 4 of the application contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the United States. [See 8 CFR 214.1.] This does not preclude the adjudicating officer from requiring submission of evidence of the validity of the passport, if the officer has reason to believe that the alien has falsely claimed that it is valid.

(C) Decide If a Favorable Exercise of Discretion Is Warranted . Applications for extensions of stay are matters solely within the administrative discretion of the director. Before approving an application for an extension, the adjudicator must be satisfied that the applicant will continue to engage only in activities specifically consistent with his or her nonimmigrant status. [See Matter of Sourbis , 11 I&N Dec. 335 (BIA 1965); Matter of Sparmann , 11 I&N Dec. 285 (Acting District Director, 1965); Matter of Rogalski , 14 I&N Dec. 507 (District Director, 1973); Matter of Healy and Goodchild , 17 I&N Dec. 22 (BIA, 1979)]. In determining whether a favorable exercise of discretion is warranted consider, among other things:

• the applicant’s age and condition (and how that relates to the specific reasons given for the requested extension). For example, a healthy, working or school age B-2 extension applicant staying in the home of a family with small children for a prolonged period could give rise to the suspicion that the applicant is actually providing child care or attending school.

• whether the applicant is likely to attempt to stay indefinitely. USCIS may terminate a nonimmigrant’s authorized period of stay when it becomes aware the alien intends to remain indefinitely in the U.S. [See Matter of Safadi, 11 I&N Dec 446 (BIA 1965) ].

(D) Determine Whether Alien Is a Visas Mantis Case . If so, follow the Visas Mantis reporting procedures discussed in Chapter 30.2(e) .

Note: The usual time allowed for an extension for a B-1 visitor is the length of time requested, or no more than six (6) months at one time, whichever is less. However, B-1 members of a religious denomination doing temporary missionary work may be granted extensions up to one year in length.

(4) Interview . Requiring a personal appearance by an applicant or requesting a formal investigation for an extension should rarely be required. Likewise, requests for additional evidence should be relatively unusual. The application itself, supporting documentation required by the instructions on the form and existing INS or USCIS records will enable you to adjudicate virtually any extension of stay request.

(5) Revocation of Extensions . USCIS has the authority to reopen and deny an extension which was granted without knowledge of the true facts material to the case [See Matter of T - -, 9 I&N Dec. 239 (BIA 1961).] Such actions require a "Motion to Reopen" written in letter format, followed by the actual decision written in formal order. Note: Even in those few cases where on fee is collected on a motion to reopen (I.e., when USCIS is the moving party), it is still counted as an application or petition (as appropriate) received and completed.

(6) Bonds . A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. [See Inspector’s Field Manual , Chapter 45, for procedures on posting bonds.]

(7) File Review . In adjudicating an Form I-539 , a relating "A" file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating "A" file can be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted "ARL" the file should not be requested, but the Arlington, VA. District Office should be con sulted before an extension of stay is granted. In all cases in which an "A" file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(8) (Chapter 30.2(c)(8)(A), revised 07-27-2005) .

(A) Approval . Determine the appropriate amount of time for the extension. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.] Endorse the action block on the application and indicate the actions taken in the "INS (or as updated forms are issued, USCIS) use only" section of the form. Upon approval, update CLAIMS, ordering approval notices. The Form I-530 forwarding the record of approval is automated at the service centers and the data is sent to TECS. Returning the receipt file to Records. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94 , indicating the extension date. If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the approval date, office three-letter code, and officer stamp number. In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding of Form I-530 or the automated equivalent for each alien included on the application and (unless the I-94 is hand-delivered to the alien) completion of an approval notice on Form I-542.

(B) Denial . Endorse the action block on the application and indicate the actions taken. Set a voluntary departure period, if the alien is no longer maintaining status. For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary. In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial; and prepare Forms I-530 for the applicant and each dependent and forward to NIIS. Delivery of the decision may be accomplished by routine ser vice, as described in 8 CFR 103.5a.

(C) Routing of Miscellaneous Documents . In the case of a J-1 application for an extension of stay, always return the pink colored, USCIS annotated, IAP-66 with the I-94 to the applicant or attorney. The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy of Form I-20AB is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorne y, in accordance with Appendix 15-8 of the Inspector’s Field Manual .

(9) Appeal . There is no appeal from an adverse decision on Form I-539 . Decisions may be certified to the Administrative Appeals Unit in accordance with 8 CFR 103.4. An alien may seek review of an improper decision by filing a motion pursuant to 8 CFR 103.5.

(d) Use of Form I-129 for Extension of Stay .

(1) Initial Receipting . General receipting procedures are discussed in Chapter 10 of this manual. The applicant’s employer must file Form I-129 with the service center having jurisdiction over his or her (the alien’s) place of employment. A single application may be filed by the employer on behalf of a family group, provided all family members hold the same status or derivative status. Family members may not be included in a petition for multiple principal beneficiaries. Although technically a readmission, NAFTA extensions for TN and L-1 nonimmigrants may also be adjudicated at ports-of-entry when the applicant seeks reentry. [See Inspector’s Field Manual , Chapter 15.5.] Editions of Form I-129 prior to the most current edition may not be accepted for purposes of extension of stay for nonimmigrants.

(2) Preliminary Review . In addition to the steps discussed in Chapter 10 of this field manual :

(A) Ensure the form is completed as required and the correct supplement is filled out for the applicable nonimmigrant category.

(B) Review supporting documents. If there has been no change in employment, only the appropriate I-129 supplement and a letter from the employer confirming continuing employment is required, except that the employer must also submit :

• a copy of the employer’s labor condition application and Form I-129W for H-1B applicants.

• a valid labor certification for H-2B applicants.

• a valid labor certification for H-2A applicants, unless it is a request for an extension not to exceed two weeks (or less, if the original certification was for less than two weeks) for employment included in a prior certification.

Other special supporting documents required for nonimmigrant extensions where there is a change in the terms and conditions of employment are discussed in the Chapters 31-35, relating to specific categories.

Note 1: Form I-94 . If an original I-94 is attached, rather than a copy, it should be returned when action is completed on the application, since CLAIMS generates a new I-94, to be attached to the original, upon approval of the extension. Questions regarding original admission or previous status can usually be resolved by searching CLAIMS or NIIS data bases. NIIS records should contain arrival information, in the event an I-94 is not submitted.

Note 2: Jurisdiction . Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction. Remember that jurisdiction is determined by the petitioner’s address in cases involving temporary employment:

• for the same employer at more than one location;

• for more than one agricultural employer, where an association is petitioning for H-2A workers; or

• for one, or more than one, non-agricultural employer, where an established agent is serving as the petitioner.

Note 3: Dependents . Dependents may be included on an I-129 extension request if the I-129 includes only one principal alien. In the event a multiple beneficiary I-129 is submitted which includes dependents for one or more principals, request that the dependents submit separate extension applications on Form I-539 . A separate I-539 is required for each family group of dependents.

(3) Adjudication . Nonimmigrant extensions on Form I-129 are ordinarily fairly simple to adjudicate, unless there is a change in previously authorized employment. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant.

Extensions of stay filed on Form I-129 must be divided into two categories. Extensions involving aliens in E, R or TN status are single-step requests, although it is necessary to consider eligibility both in terms of requirements relating to the employer and those relating only to the alien. There is no separate adjudication of a petition extension, technically filed by an employer on the alien’s behalf.

Extensions involving H, L, O, P or Q aliens are, in reality, a two-step adjudication: consideration of the employer’s request to extend the petition to classify the alien as a nonimmigrant worker and consideration of the alien’s request for additional time as a nonimmigrant. This distinction is an important one, since a denial of the employer’s petition extension may be appealed to the Administrative Appeals Office while a denial of the extension of stay may not be appealed. The issues relating to the petit ion extension are the same as those for an initial petition. These requirements are discussed separately in Chapters 31-33 and 35. The issues surrounding an alien worker’s request to extend his or her nonimmigrant stay in the U.S. are generally the same as for any other nonimmigrant category.

Note: The alien beneficiary of a Form I-129 being filed by his or her employer for an extension has previously been found eligible for nonimmigrant status, either by INS, USCIS or CBP at the time of admission or through an initial petition, or by the Department of State during the visa issuance process. Absent apparent gross error, a change in the circumstances surrounding the alien’s stay, or discovery of new information not previously available, the adjudicator should not engage in an in-depth review of issues relating to the initial status. In the event of adverse action on a reopened I-129 petition (or denial of a petition extension request), the petitioner has the same appeal right s available in the original petition proceedings (see chapter 10.17 of this Field Manual for additional discussion of motions to reopen and motions to reconsider).

In addition to the general procedures described in Chapter 10.3, the following actions are ordinarily required during the adjudicative process:

(A) For H, L, O, P or Q-1 aliens, determine if the petitioning employer’s eligibility has changed in any way. It is generally not necessary to request new supporting documents (except any required labor certification or labor condition application), nor should the original file be routinely requested. If eligibility has changed or the original petition was improperly approved, follow the procedures in Chapters 31-35 for denial or for reopening based on a USCIS motion (see chapter 10.7(c) of this Field Manual) . If the petition was properly approved and the employer’s eligibility remains unchanged, consider the alien’s eligibility for an extension, as outlined below.

(B) For E, Q-2, R and TN cases, consider the original eligibility requirements for the status, as discussed in Chapters 34 and 35 . If eligibility has changed or the alien was not originally entitled to the status, deny the extension request, following the procedures below. If employment-related eligibility requirements continue to be met, consider other aspects of the extension request, as outlined below.

(C) Determine if the Form I-129 was timely filed . Although timely filing is ordinarily required, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the alien’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings by the Service.

(D) Verify passport validity . An alien need not submit a valid passport with his or her application, since Part 4 of the application contains a check-block requiring the applicant to indicate he or she has a valid travel document. The alien must hold a valid passport at the time of filing and must agree to maintain its validity during the entire period of his or her stay.

(E) Ensure that co-applicant dependents remain entitled to dependent status.

(F) Review the validity of any required labor certification or labor condition application. No extension may be granted beyond their validity.

(G) Determine whether alien is subject to the Visas Mantis reporting procedures discussed in Chapter 30.2(e) .

(4) Interview . Requiring a personal appearance by an alien for an extension should rarely be required and requests for additional evidence should likewise be relatively unusual. The Form I-129 itself, supporting documentation required by the instructions on the form and existing USCIS records will enable you to adjudicate most extension of stay requests. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. The application itself, supporting documentation required by the instructions on the form and existing USCIS records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a sworn statement (or a memorandum containing the results or notes summarizing the interview) should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.

(5) Temporary vs. Permanent Intent: Effect on Nonimmigrant Status . Although nonimmigrants, by definition, are in temporary status and should be able to demonstrate their intention to return to their home country, H-1 and L nonimmigrants need not maintain a residence in a foreign country and are considered to be maintaining status even after taking overt actions to remain permanently in the United States. Other classes of nonimmigrants may be required to provide evidence of their intent to depart from the United States when their authorization to remain expires.

(6) File Review . In adjudicating an extension on Form I-129 , a relating "A" file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating "A" file can be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the alien's Form I-94 is noted "ARL" the file should not be requested, but the Arlington, VA. District Office should be consulte d before an extension of stay is granted. In all cases in which an "A" file exists, the adjudicated Form I-129 and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(7) Closing Actions . In addition to the general procedures described in Chapter 10, the following closing actions are required:

(A) Approval . Determine the appropriate amount of time for the extension. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.] Endorse the action block on the Form I-129 and indicate the actions taken in the “INS use only” section of the form. Upon approval in CLAIMS, update the system, ordering approval notices and forwarding the record of approval to NIIS. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94, indicating the extension date. If the case is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the approval date, office three-letter code, and officer stamp number. In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the application and completion of an approval notice on Form I-171C.

Note: Approval of a timely-filed I-129 extension is always considered nunc pro tunc , effectively forgiving the status violation for overstaying or continuing employment (with the same employer) which may have occurred between the expiration of the original admission period and the approval date of the extension. [See Matter of Dacanay 16 I&N Dec. 238 (BIA 1977).]

(B) Denial . Endorse the action block on the Form I-129 and indicate the actions taken, including setting a voluntary departure period, if the alien is no longer maintaining status. For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary. In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial, set a period of voluntary departure; and in both CLAIMS and non-CLAIMS denials, prepare Forms I-530 for each alien included on the application and forward to NIIS. Delivery of the decision should be by routine service, as described in 8 CFR 103.5a.

(8) Appeal . There is no appeal from an adverse decision on Form I-129 filed for purposes of seeking an extension of stay, except in H, L, O, P and Q cases where the denial is based on petition-related issues. If the adjudicator reopens an original petition and denies a case on petition-related grounds, the matter may be appealed to the Administrative Appeals Unit.
___________________________________________________

Change of Nonimmigrant Status Under Section 248.

(a) General . Section 248 of the Act provides a nonimmigrant, lawfully admitted to the U.S., who is continuing to maintain the status in which he or she was admitted or previously changed, the opportunity to change from one classification under section 101(a)(15) of the Act to another, with certain restrictions. Its purpose is to allow such nonimmigrant, in meritorious situations, to avoid the delay and expense of departing from the U.S. and returning, in order to engage in activities other than those permitted in his or her original or current nonimmigrant visa category. The applicant must meet all eligibility criteria for the new category. An application for a change of status is filed on Form I-129 , Petition for a Nonimmigrant Worker or Form I-539 , Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 248.3, depending upon the nonimmigrant classification being sought. The I-539 is used for changes to A, B, F, G, I, J, M, N, S and NATO and for dependents of other classes when the principal has already been accorded another status. The I-129 is used for nonimmigrants seeking E, H, L, O, P, Q, R and TN status concurrently with approval of a petition to accord such status. Special requirements for each status are discussed in Chapters 31-35. No request or application is required to change status from B-1 to B-2. Other within-class changes, such as F-2 to F-1 or H-4 to H-1, require a formal application and fee even though they are not, strictly speaking, changes of status under section 248 of the Act.

(b) Limitations .

(1) Changes from a Specified Class (Chapter 30.3(b)(1), Revised 07-13-2005) . An alien in classes C, D, K, S, WT, WB, or TWOV is ineligible for a change of nonimmigrant status. An alien admitted as an exchange visitor (J) who is subject to the two-year foreign residence requirement of section 212(e) of the Act and who has not received a waiver of that requirement, can change only to A or G status. See Matter of Kim , 13 I&N Dec. 316 (R.C. 1968). Any J nonimmigrant who was admitted (or acquired such status) to pursue graduate medical education or training is ineligible to change status, even if he or she obtains a waiver of section 212(e) . An alien who has been admitted as an Irish Peace Process Cultural and Training Program visitor (Q-2 alien) is subject to the two-year foreign residence requirement of section 212(t) of the Act. Such an alien cannot apply for another nonimmigrant status, an immigrant visa, or permanent residence until the residency requirement has been met or a waiver has been granted. However, 212(t) only applies to those Q-2 aliens who initially entered the United States on or after December 10, 2004.

(2) Changes to a Specified Class . Although an application and fee are required, changing from J-1 to J-2 is not regarded as a change of status, therefore, it is not prohibited. An M-1 nonimmigrant cannot change to F-1 status or to H status if the M-1 training helped him or her qualify for H status. No nonimmigrant can be granted M-1 status in order to gain training necessary to qualify for H status. [See also 8 CFR 248.2 and §248 of the INA.]

(c) Form I-539 .

(1) Initial Receipting . The applicant must file Form I-539 with the service center having jurisdiction over his or her place of residence. A single application may be filed by a family group. The basic procedures for receiving such applications are discussed in Chapter 10.

Note: On April 12, 2002, the INS amended 8 CFR 248.1(c) to add a provision prohibiting most B-1 or B-2 nonimmigrants from changing status to that of F or M full-time student if that B-1 or B-2 nonimmigrant has already begun taking classes at the school. USCIS must deny the requested change if there is evidence that the alien has begun course work prior to the adjudication (approval) of the I-539 application. The rule applies to any B-1 or B-2 nonimmigrant who: • Last entered the United States as a B-1 or B-2 nonimmigrant on or after April 12, 2002; or • Although admitted to the United States as a B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application for an extension of his or her nonimmigrant status on or after April 12, 2002; or • Although admitted in any nonimmigrant category either before, on, or after April 12, 2002, filed an application for a change of nonimmigrant status to that of B-1 or B-2 on or after April 12, 2002; or • Although granted a change of status to that of B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application for an extension of his or her B-1 or B-2 nonimmigrant status on or after April 12, 2002. An applicant who does not meet ANY of these four provisions is “grandfathered in” under the old (pre-April 12, 2002) regulations and is NOT subject to the bar.

(2) Preliminary Screening . In addition to the steps described in Chapter 10 , preliminary review includes the following:

(A) Determine Jurisdiction . Jurisdiction is generally based on the alien’s location in the United States. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.

Note: Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction.

However, the Washington District Office and the New York District Office have jurisdiction over certain adjudications concerning A, G, NATO nonimmigrants.

· Changes into or within an A, G, or NATO Classification . Requests for change of status into or within an A, G, or NATO nonimmigrant classification are adjudicated exclusively by USCIS personnel from the Washington District Office, who meet weekly with personnel in the Department of State (DOS) Visa Office in Washington, DC, or by New York District Office personnel who work closely with the U.S. Mission to the United Nations (USUN) in New York. This was a long-standing arrangement between DOS and the former Immigration and Naturalization Service, which continues with USCIS. These two USCIS offices have assigned adjudicators to this function. Change of status requests into or within any of these classifications should not be adjudicated at any other district office or at a service center.

When an alien in the United States requests a change of nonimmigrant status into or within an A, G, or NATO classification, that request must first be considered by the DOS Office of Protocol, USUN for aliens assigned to the United Nations or to a foreign mission to the United Nations, or by the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation (NATO/HQ SACT) for aliens assigned to a NATO command. A change within a classification would include instances in which aliens receive promotions or otherwise change their responsibilities and may require a change within the existing classification, for example, from A-2 to A-1.

How to Handle Requests for Change of Status into or within an A, G, or NATO Classification Filed at Other District Offices or Service Centers . Should another district office or service center receive a request for a change of status into or within an A, G, or NATO classification, the request should be returned to the alien, using the following recommended language:

“Your application was filed incorrectly. Please resubmit your application along with any required supporting documents to your embassy, international organization or permanent mission thereto, or NATO command. Your employing organization must first review this application and then forward it on to one of these certifying organizations: Department of State, U.S. Mission to the United Nations, or North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation. Following certification by one of these organizations, your application will then be submitted to the USCIS by one of them. You do not submit this type of application directly to USCIS.”

· Extension of Stay for A-3, G-5, or NATO-7 Classifications . Requests for an extension of stay for an A-3, G-5, or NATO-7 nonimmigrant are adjudicated exclusively by the Washington District Office or New York District Office, following a thorough review of the circumstances of such requests by DOS, USUN, or NATO officials. These officials are able to verify that the sponsoring employer continues to hold the qualifying position and to review updated employment contracts to ensure that the terms of employment are consistent with current requirements. Such requests f or an extension should not be adjudicated at other district offices or service centers.

How to Handle Extension of Stay Requests for A-3, G-5, or NATO-7 Nonimmigrants Filed at Other District Offices or Service Centers . Should another district office or service center receive any such request, the request should be returned to the alien, using the following recommended language:

“Your application was filed incorrectly. Please contact your employer’s embassy, international organization, or NATO command for proper filing procedures.”

· Change from an A, G, or NATO Classification . When A, G, or NATO aliens wish to change to another nonimmigrant classification, such requests are adjudicated at service centers, provided there is an endorsement by a DOS Visa Office or a USUN official at Part 7 on Form I-566 (Interagency Record of Request), accompanying Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker). Please note that the DOS Visa Office, not NATO/HQ SACT, endorses this form on behalf of NATO nonimmigrants.

Should questions arise during the adjudication, USCIS personnel may wish to consult with one of the following:

Diplomatic Liaison Division of the DOS Visa Office at telephone (202) 663-1743 or fax (202) 663-1608 -- for aliens in A classification and for aliens in G classification except those who are assigned to the United Nations, for example a G nonimmigrant working at the World Bank in Washington, DC;

Advisor for Host Country Affairs at USUN at (212) 415-4167 or fax (212) 415-4162 -- for aliens in G classification and assigned to the United Nations Secretariat or an individual mission to the United Nations;

Legal Affairs Office at NATO/HQ SACT at (757) 747-3640 or fax (757) 747-3310 -- for aliens in NATO classification.

· After the adjudication of a change of status from these classifications : USCIS officers must complete Part 8 of the revised Form I-566 by documenting action taken and returning a copy of that form to the appropriate office:

For the Department of State, Office of Protocol, use the following address:

Office of Foreign Missions

3507 International Place, NW

Washington, DC 20522-3302

For the U. S. Mission to the United Nations, use the following address:

U.S. Mission to the United Nations

799 United Nations Plaza

New York, NY 10017

For the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation, use the following address:

NATO/HQ SACT

Legal Affairs Office

7857 Blandy Road, Suite 100

Norfolk, VA 23551

DOS, USUN, and NATO/HQ SACT update their records based upon information USCIS personnel provide on this form. Thus, it is important that a complete copy of the Form I-566 be forwarded promptly to the appropriate agency or organization, noting what action was taken and the date it was taken, as well as the name and telephone number of the adjudicating office for use in the event that should DOS, USUN, or NATO/HQ SACT have questions regarding the adjudication.

(B) Ensure Form I-94, either original or a copy, is submitted. If there are multiple applicants on a single application, insure a copy of each I-94 is attached.

Note 1: Form instructions on Form I-539 indicate that aliens seeking B, F, J or M status are required to submit their original Form I-94. Others should submit only a copy of their I-94. If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A , includes a replacement I-94, which is to be attached to the original I-94. Return to the applicant any original I-94 which was improperly submitted.

Note 2: If a change of status applicant claims to have lost his or her I-94, a separate Form I-102, Application for Replacement/Initial Arrival/Departure Record should be filed since the I-94 issued in the course of adjudicating the application indicates that it is to be attached to the original I-94. Verify arrival from NIIS or, if no record can be found, obtain a copy of the applicant’s passport page containing the admission stamp.

Note 3: Inadmissibility Issues . At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(C) Ensure the applicant has attached supporting documentation for the classification sought:

• Aliens seeking F-1 or M-1 status must submit the appropriate Form I-20 and evidence of financial ability to maintain the new status. Aliens seeking J-1 status must submit Form IAP-66.

• Aliens seeking A-3 or G-5 status must submit an executed Form I-566, a letter from their employer detailing their job duties and evidence of the employer’s status (usually an I-94).

• Dependents of various temporary workers must submit evidence of the principal alien’s status (or evidence of a pending request for such status).

Note: Information relating to a principal alien’s status, if missing or questionable, may be verified in CLAIMS or NIIS. There is no dependent status for Q-1 or TN nonimmigrants; however, such dependents may separately qualify for nonimmigrant status, usually B-2.

Detailed discussions of supporting documents for each status are contained in Chapters 34 through 37.

(3) Adjudication . Applications for a change of status on Form I-539 are relatively simple to adjudicate. Because the benefit sought is generally short-lived or time-sensitive, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant. The following actions, in addition to the steps described in Chapter 10.3, are ordinarily required during the adjudicative process:

(A) Determine if the application was timely filed . Although ordinarily required, the adjudicator has discretion to grant a change of status based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings. If the alien is guilty of more than excusable tardiness (e.g., if he/she has worked without authorization or has committed a crime), the adjudicator has no discretion to excuse the tardiness.

(B) Verify passport validity. An applicant need not submit a valid passport with his or her application, but must complete Part 4 of the application which contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the U.S.

(C) Determine if any and all required supporting forms, such as Form I-20, DS-2019, or I-566 are attached, properly completed, and endorsed. [See also Chapters 34-37 discussions of supporting documentation.]

(D) Determine if a Favorable Exercise of Discretion Is Warranted . Change of status applications are discretionary in nature. In deciding whether a favorable exercise of discretion is warranted, consider such things as the alien’s financial ability to maintain the status sought, whether there was possible deception when the original visa or admission was sought, what the applicant’s ultimate intentions may be, veracity of documentation submitted, and the overall effects of a positive or negative decision. It is important to keep in mind that discretionary does not mean a rbitrary. Given similar fact patterns, discretionary decisions should yield similar results regardless of where such cases are adjudicated or by whom. There is a significant body of precedent decisions which discuss the appropriate exercise of discretion under a variety of situations. Familiarity and conformity with these precedents are critical to achieving consistent and fair results in such cases.

Note 1: Ability to Maintain Status . Maintenance of status is discussed generally in Chapter 30.1. In order to change status, an applicant must be a bona fide nonimmigrant, maintaining his or her current status [ Matter of Haddad , 10 I&N Dec 785 (R.C. 1964)]. Matter of Lee , 11 I&N Dec. 601 (R.C. 1966) found that an H-1 nonimmigrant’s failure to continue the temporary employment for which he was admitted constituted a failure to maintain status.

With the exception of H-1 or L nonimmigrants who are covered by section 212(h) of the Act, because an alien who is seeking a change of status and/or an extension of stay bears the burden of establishing eligibility for the benefit sought, if he or she has filed an application for adjustment of status or an application for asylum (or even if he or she is the beneficiary of a permanent or temporary visa petition, unless the applicant can establish that he or she is the unwilling or unknowing beneficiary) he o r she cannot meet this burden and the application for change of status or extension of stay should be denied. Contrast this issue with the discussion in Chapter 23 on whether an alien automatically violates his or her nonimmigrant status by merely applying for adjustment of status or asylum. However, under certain very limited circumstances, extension or change of status may be granted to an alien who (1) had previously been denied adjustment or asylum or whose previously approved visa petition has been wit hdrawn or revoked, (2) who met the criteria discussed in Chapter 23 for being considered as having maintained his or her status throughout the pendency of the asylum/adjustment application, and (3) is able to satisfy the officer adjudicating the application for change or extension that he or she has completely abandoned his or her intend to remain in the United States beyond the period which can be authorized under the change or extension being sought.

In addition, the applicant must demonstrate he or she is able to maintain him or herself in the status sought, particularly financially. This issue needs particular examination when the applicant seeks a prolonged stay in any status where employment is not a routine part of the status, for example student status. The discussion of status and the effects of section 212(a)(9) of the Act are discussed in paragraph 30.1 of this chapter.

Note 2: Preconceived Intent . The adjudicator will encounter applications where it appears, either from the statements made on the application or from the sequence of events (from initial visa application and issuance, admission, obtaining supporting documents for a new status, until the date of filing) that the applicant concealed his or her true purpose for entering the U.S., either on the visa application or to the inspector at the time of admission. Most frequently, this situation occurs in requests to change status from B-2 to F- 1. The issuance dates of Forms I-20, affidavits of support , etc. are often helpful in determining whether preconceived intent or actual fraud exists.

USCIS policy discourages such deliberate actions. In cases where the new status is one which requires substantial financial assets by the applicant or an overseas sponsor, the consular officer in the applicant’s home country is in a better position to assess the situation than a USCIS adjudicator. Similarly, where an applicant’s overseas employment or ties to his or her home country are at issue, again the consular officer on the scene can most easily assess eligibility.

Although the facts in such situations could be indicative of actual visa fraud, more often the appropriate course of action may be to deny the application as a matter of discretion. A denial would not be warranted simply because an applicant entered as a visitor, for example, and was later offered an opportunity to attend school, receive specialized training or accept employment. It is necessary to look closely at the facts of the particular case, examining such facts as dates on supporting documents. If ne cessary, seek additional information from the applicant concerning all facts leading to his or her request.

A series of precedent decisions and court cases upholds the Service’s decision to deny a change of status in such a situation. Matter of Hsu , 14 I&N Dec. 344 (R.C. 1973), denied a change of status to an applicant who obtained a visa under the pretext of a visit for business whereas the actual purpose was to seek acceptance at a school. In Matter of Le Floch , 13 I&N Dec. 251 (BIA 1969), the Board ruled that even the applicant’s claim that she was misinformed by a consular officer regarding the need for a student visa was insufficient to justify entry as a visitor. In Seihoon v. Levy , 408 F. Supp. 1208 (La. 1976), the court upheld the decision to deny an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process.

Note 3: Applicant Is an Intending Immigrant . Matter of Gutierrez , 15 I&N Dec. 727 (R.C. 1976), denied a change of status to an alien who was determined to be an intending immigrant. However, it should be noted that not all nonimmigrants are required to maintain a foreign residence and that in some categories even overt evidence of intent to remain permanently in the United States is not a ground for denial of a change of status request. However, in the most commonly filed requests, those seeking F, J or M classification, before approving a case the adjudicator should be satisfied that the alien is not an intending immigrant.

Note 4: Visas Mantis Cases . In adjudicating an application for change of status on behalf of an alien who was admitted under the Visas Mantis program, follow the same procedures as are set out for extension of stay applicants in Chapter 30.2(e) .

Note 5: Inadmissibility Issues . At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(4) Personal Interview . Requiring a personal appearance by an applicant for a change of status should rarely be required and requests for additional evidence should likewise be relatively unusual. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. (If the case is being referred for an interview, prepare a memorandum explaining the reasons for the referral.) The application itself, supporting documentation required by the in structions on the form, and existing records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a memorandum containing the results or notes summarizing the interview should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.

(5) Indirect Attainment of a Prohibited Change of Status . Chapter 30.3(b) describes limitations on certain nonimmigrant status changes. An applicant may not evade these restrictions by virtue of having attained an intermediate status. Matter of Kim , 13 I&N Dec. 316 (R.C. 1968), denied a change of status from A-2 to F-1 because the applicant was originally admitted as a J-1. Such a change would be an indirect change from exchange visitor to student, a prohibited action.

(6) Changes of Nonimmigrant Classification Formerly Permitted Without Application or Fee . Prior to January 11, 1994, 8 CFR 248.3(c) specifically allowed certain changes without fee or application. Those changes included:

(A) A change to classification under section 101(a)(15)(A) or (G) of the Act;

(B) A change to classification under sections 101(a)(15)(A) or (G) of the Act for an immediate family member, as defined in 22 CFR 41.1, of a principal alien whose status has been changed to such a classification;

(C) A change to the appropriate classification for the nonimmigrant spouse or child of an alien whose status has been changed to a classification under sections 101(a)(15)(E), (F), (H), (I), (J), (L), or (M) of the Act;

(D) A change of classification from that of a visitor for pleasure under section 101(a)(15)(B) of the Act to that of a visitor for business under the same section;

(E) A change of classification from that of a student under section 101(a)(15)(F)(I) of the Act to that of an accompanying spouse or minor child under section 101(a)(15)(F)(ii) of the Act or vice versa;

(F) A change from any classification within section 101(a)(15)(H) of the Act to any other classification within section 101(a)(15)(H) of the Act provided that the requisite visa petition has been filed and approved;

(G) A change of classification from that of a participant under section 101(a)(15)(J) of the Act to classification as an accompanying spouse or minor child under that section or vice versa;

(H) A change of classification as an intra-company transferee under section 101(a)(15)(L) of the Act to classification as an accompanying spouse or minor child under that section or vice versa; and

(I) A change of classification from that of a student under section 101(a)(15)(M)(I) of the Act to that of an accompanying spouse or minor child under section 101(a)(15)(M)(ii) of the Act or vice versa.

The reason for discontinuing these provisions related to the need to eliminate circumstances whereby persons could change status without paying a fee (in effect transferring the USCIS' cost of doing business onto someone else), not with proscribing any of these actions. The types of changes for status listed above remain equally available to persons in such classifications today, provided that the person(s) involved file the application, pay the requisite fee, and are otherwise eligible. After Jan. 11, 1994, only those aliens described in (A) remain exempt fee.

Note: It has been determined that 8 CFR 248.3(b) applies to the B-2 spouse or children of B-1 nonimmigrants. Therefore, if a B-1 nonimmigrant applies for and is granted an extension of temporary stay, the status of the spouse and children will be changed without fee or application. Upon this change of status, Forms I-94 must be endorsed "B-1 spouse" or "B-1 child".

(7) Change of Status within the J Classification . 8 CFR 248.2 prohibits a change from the J nonimmigrant classification for any individual who became a J in order to receive graduate medical training or who is subject to the 2-year residency requirement. However, this prohibition does not prevent someone (who is otherwise eligible) from seeking a change within the J category from J-1 to J-2, or vice versa. However, three important items should be noted regarding this type of change:

(A) Any alien(s) subject to the 2-year residency requirement retains that obligation despite the change from J-1 to J-2 or vice versa;

(B) The alien(s) involved may acquire a 2-year residency requirement which they did not have previously [e.g., a J-1 not subject to the requirement who becomes a J-2 accompanying spouse of someone who is subject acquires the same obligation as the (new) J-1 principal]; and

(C) Before approving any such change, the adjudicator should be satisfied that it is being requested for legitimate exchange visitor purposes and not merely to extend the stay in the United States by “flip-flopping” the roles of the principal alien and the accompanying spouse.

(8) Bonds . A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. See Inspector’s Field Manual , Chapter 45, for procedures on posting bonds.

(9) Affidavits of Support . See Chapter 30.8 of this manual.

(10) File Review . When adjudicating an application for change of status, obtain and review any relating "A" file prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating "A" file may be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted "WAS" the file should not be requested, but the Washington, D.C. District Office should be consulted before an extension of stay is granted. In all cases in which an "A" file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(11) Case Closing Actions .

(A) Approval . Complete the following steps when approving an application for change of status:

• Determine the appropriate amount of time for the extension of stay in the new visa classification. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.]

• Endorse the action block on the application and indicate the actions taken in the section of the form designated "for Government Use Only".

• For CLAIMS-processed cases, upon approval, update CLAIMS and order approval notices. The system will forward the record of approval to NIIS. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94 indicating the new status and extension date.

• If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the action taken (e.g. “c/s to F-1"), approval date, office three-letter code, and officer stamp number. Also, endorse the I-94 manually or using a rubber stamp, with the notation: “You must obtain a new visa to reenter this country in your present status.” In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the app lication and completion of an approval notice on Form I-542.

(B) Denial . If denying the application for change of nonimmigrant status, complete the following steps:

• Endorse the action block on the application and indicate the actions taken in the section of the form designated "for Government Use Only".

• Using Form I-210, set a period of voluntary departure if the applicant is no longer maintaining status and he or she has agreed to accept voluntary departure.

• For denials processed in CLAIMS, select the proper standard denial paragraphs from CLAIMS, adding special text if necessary.

• In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial.

• In both CLAIMS and non-CLAIMS cases, prepare Form(s) I-530 and forward to NIIS -- Service Centers do not prepare I-530s on denials of I-129s ir I-539s.

(C) Routing of Miscellaneous Documents . Returning the pink colored, USCIS annotated, IAP-66 with the I-94 is no longer the process. IAP-66 has been replaced by SEVIS generated DS-2019s. This is no longer a multiple copy form. Annotated original DS-2019 is returned to the applicant or attorney after approval of the COS. A photo copy of the annotated DS-2019 should go into the file. In the cas of the F-1 form I-20, the original endorsed I-20 is returned to the student or attorney, a photocopy of the annotated I-20 goes into the case file and nothing is sent to London, KY. SEVIS has eliminated STSC which is where the data from the copies of the I-20s were entered previous to SEVIS.

The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy (Form I-20AB) is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorney, in accordance with Appendix 15-8 of the Inspector’s Field Manual .

(12) Appeal . There is no appeal from an adverse decision on Form I-539 filed for purposes of seeking a change of status.

I-751 Petition for Removal of Conditions on Conditional Residence, Immigration Marriage Fraud Amendments of 1986

Immigration Marriage Fraud Amendments of 1986: I-751 Petition to Remove the Conditions of Residence on Permanent Resident Status.

References: Section 216 of the Act

8 CFR 216

(a) General . The Marriage Fraud Amendments of 1986 (“IMFA”) were enacted in response to a growing concern about aliens seeking permanent residence in the U.S. on the basis of marriage to a citizen or resident when either the alien acting alone, or the alien and his or her reputed spouse acting in concert, married for the sole purpose of obtaining permanent residence. Congress was particularly moved by the testimony of numerous citizens whose alien spouses had left them shortly after obtaining residence, as well as the testimony of Service representatives concerned with “marriage for hire” schemes. Congress also acknowledged the inherent difficulties faced by the Service in determining whether the marriage is fraudulent and whether the alien intended to leave the marital union once lawful permanent residence was granted.

In response to these concerns, Congress passed IMFA, which added section 216 to the Immigration and Nationality Act. Section 216 created a conditional residence requirement for aliens who acquire permanent residence based on recent marriages. The condition being that persons subject to the provisions of IMFA were required to petition the Service two years after obtaining residence for removal of the conditional basis of the residence. Failure to do so, or denial of the removal petition, would result in the alien losing residence status and being removed from the U.S. as a deportabl e alien. Section 216 also includes a waiver provision because it recognizes that under certain circumstances (e.g., if the marriage had dissolved through no fault of the alien), the alien’s loss of residence and deportation from the U.S. would be inappropriate.

The conditional residence provisions of section 216 apply to:

• Any alien who, based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S., obtains permanent residence within two years of such marriage (i.e., as a spousal Immediate Relative or second preference classification); and

• Any child of such alien who also obtains permanent residence through his or her parent’s marriage within 2 years of the marriage.

Note: Confusion can arise regarding to whom a reference is being made (especially in spousal second preference conditional residence situations due to both parties, husband and wife, being aliens). In order to clarify which party is being referred to, the alien who is subject to the IMFA conditions is known as a “conditional permanent resident,” while the citizen or LPR who had filed the I-130 petition on behalf of such alien is known as the “petitioning spouse.”

The section 216 provisions do not apply to:

• An alien who obtains permanent residence through a marriage which is more than two years old at the time of admission or adjustment;

• An alien who obtains permanent residence on a basis other than marriage (e.g., a woman who adjusts through an employment-based petition, even if she is married to a citizen at the time);

• An alien who (regardless of the age of the marriage at the time) obtains permanent residence as an accompanying or following to join dependent of an alien who obtains residence under:

– a special immigrant classification;

– a refugee or asylee classification;

– a preference classification other than second preference;

– any other provision of the Immigration and Nationality Act, or any other law, which allows dependents to accompany or follow to join a principal alien.

Note: It is extremely important that inspectors and adjudicators be very conscious of the date of the marriage at the time the alien is admitted or adjusted. It is not unusual for an alien to be issued a conditional resident immigrant visa by a consular officer shortly before the second anniversary, but to apply for admission after that second anniversary. Likewise, an applicant for adjustment might file a Form I-485 (or even be interviewed regarding such application) prior to the second anniversary, but not be granted adjustment until after that second anniversary. In such cases, the alien should be admitted, or adjusted, without conditions (see 8 CFR 235.11(b) regarding the authority of inspectors to amend the visa classification on an immigrant visa in such situations).

(b) Notification Requirements . The Marriage Fraud Amendments of 1986 require that a conditional permanent resident be notified of his or her obligations under the law at specified points:

• At the time an alien acquires conditional permanent residence through admission to the U.S. with an immigrant visa or adjustment of status under section 245 of the Act, the Service shall notify the alien of the conditional basis of the alien's status. The Service will notify the alien of the requirements for removal of the conditions within the ninety days immediately preceding the second anniversary of the date the alien was granted status, and will inform the alien that failure to apply for removal of the conditions will result in automatic termination of the alien's lawful status in the U.S. This notification is done (either verbally or in writing) by the inspector or adjudicator who admits or adjusts the alien to conditional resident status .

• Approximately 90 days before the second anniversary of the date on which the alien obtained conditional permanent residence, the Service must (attempt to) notify the alien a second time of the requirement that the alien and petitioning spouse must file a petition to remove the conditional basis of the alien's lawful permanent residence. The notification will be mailed to the alien's last known address. However, failure on the part of the Service to provide notification (which can occur, for example, if the alien fails to notify the Service of a change of address) does not relieve the alien and the petitioning spouse of the requirement to file a joint petition within 90 days preceding the second anniversary date of the alien's conditional status. This notification is done on an automated basis by the Immigration Marriage Fraud Amendments System . (This system is known in some offices as IMFAS (“im-FASS”) and in others as MFAS (“MAY-fiss”).)

(c) Filing for Removal of Conditions . There are two vehicles through which the conditional basis of residence may be removed:

(1) Joint Petition . Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence (Form I-751) with the Service Center having jurisdiction over the alien's place of residence. Normally, a conditional resident child is included in the joint petition filed by his or her parent and step-parent. The joint petition must be filed within this 90-day window regardless of the amount of physical presence which the alien has accumulated in the U.S. The one exception to this rule is that if either the alien or the petitioning spouse (or both) is outside the U.S. on U.S. government orders, the filing window does not commence until the person(s) on orders returns to the U.S.

(2) Waiver . The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note : The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

(d) Ineligibility for Adjustment of Status . Under section 245(d) of the Act, an alien who is a permanent resident on a conditional basis under section 216 of the Act is not eligible for adjustment of status under section 245(a) of the Act. The implementing regulation is 8 CFR 245.1(c)(5) . In Matter of Stockwell , 20 I & N Dec. 309 (BIA 1991), the Board of Immigration Appeals adopted a narrow interpretation of 8 CFR 245.1(c)(5) . Under this narrow interpretation, the prohibition against adjustment of status no longer applies if USCIS has terminated the alien's conditional LPR status. In 1996, the Attorney General proposed an amendment to the regulation, so that a conditional permanent resident would remain ineligible for adjustment of status even after termination of conditional LPR status. 61 Fed . Reg . 43,028 (1996). Until the Department of Homeland Security publishes a final rule, and the final rule enters into force, however, USCIS officers are bound to follow Matter of Stockwell . If an officer has a case in which an alien whose conditional LPR status has been terminated is seeking adjustment of status under section 245, the officer should consult with district or service center counsel concerning whether the 1996 proposed rule has been made a final rule.

(e) Documentation .

(1) Joint Petition . A Form I-751 being filed as a joint petition shall be accompanied by evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S. Such evidence may include:

• Documentation showing joint ownership of property;

• Lease showing joint tenancy of a common residence;

• Documentation showing commingling of financial resources;

• Birth certificates of children born to the marriage;

• Affidavits of third parties having knowledge of the bona fides of the marital relationship (Note: the affiant must be available to appear at the joint petitioners’ interview if required); or

• Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the U.S.

(2) Waiver . A Form I-751 being filed as a waiver application shall be accompanied by:

• Evidence to establish the facts of the case on which the alien is seeking the waiver; and

• Evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S., as described in paragraph (1), if the marriage was not entered into for such purposes. However, be aware that the extreme hardship waiver provision does not require that the applicant establish that the marriage was entered into in good faith.

(f) Termination of Status for Failure to File . Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the U.S. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of the director, in writing, that there was go od cause for the failure to file within the required time period.

(g) Adjudication of the Joint Petition .

(1) Determination of Credibility of Evidence . [Section (g)(1) updated 06-20-2006] The director of the regional service center shall review the Form I-751 filed to determine whether to waive the interview required by the Act.

(a) Waive Interview and Accept . If satisfied that the marriage was not for the purpose of evading the immigration laws, the director may waive the interview and approve the petition.

(b) Waive Interview and Deny . If after examining the evidence submitted with an I-751 petition, the Service Center Director finds that the case presents substantial and undisputed evidence that the marriage was to circumvent the immigration laws, the Service Center Director shall deny the case.

(c) Interview Necessary . In cases where an interview is deemed useful for the adjudication of I-751 petitions, the Service Center Director shall forward the petition, along with the assigned fraud level, to the district director having jurisdiction over the place of the alien's residence.

(2) Assigning Fraud Levels . [Section (g)(2) updated 06-20-2006] If an interview is deemed necessary, the case is sent to the Service Center's Adjudications Unit and given to an adjudicator to assign a fraud level. The fraud levels of A, B, and C are assigned to the I-751 based on the documentation submitted with the application. If the adjudicator is fully satisfied that the case is approvable, then a fraud level of C is assigned. If the adjudicator is less than fully satisfied, but still feels that (based on the information available at the time) the case can be approved, then a fraud level of B is assigned. If the adjudicator has serious concerns about the approvability of the case and/or wants the applicant and the spouse to be interviewed, then the case would be assign ed a fraud level of A.

· Reasons for Assigning Fraud Level C. If you assign a fraud level C, it means that there are no technical problems (signatures, missing information, lack of evidence, etc.) and you think the case is approvable (no interview necessary). All required supporting documents are attached and there is no indication of fraud that can be identified in the documents or through the biographic data of the parties involved.

· Reasons for Assigning Fraud Level B. Fraud level B cases are those cases which have no technical problems that need correction and have the minimum number of proper supporting documents, but there is something, or an absence of something (which you may or may not be able to articulate) that creates suspicion about the bona fides of the marriage, the veracity of the evidence, etc. The reasons for suspicion are so varied that a concise list cannot be made. An example would be where the I-751 is supported by t he minimum required number of documents, however the documents are all of recent origin. Remember, though, that a level B case will be approved if the computer randomly does not assign the case to an interview slot, so do not assign a fraud level B if the application and /or supporting documents are insufficient to approve the case.

· Reasons for Assigning Fraud Level A. Fraud level A should be assigned when the adjudicator strongly suspects fraud. Reasons fraud level A might be assigned include:

- the petitioner fails to sign the form;
- there is insufficient evidence;
- a large age difference exists between the spouses;
- the married couple is not living together;
- a prior I-751 was denied;
- the petition was filed untimely without a good reason for being late; or
- any other reasons as the service center director may determine.

Note: The service center adjudicator must indicate when fraud is suspected, rather than a technical omission, to alert the Fraud Detection and National Security (FDNS) Immigration Officer at the District Office.

(3) Entering Cases in the Computer . Once the fraud level is determined, the adjudicator enters the case in the MFAS data base. The district office assigns a percentage to each fraud level. All fraud level A cases are interviewed. The responsible officer (usually the ADDE) in the district offices may choose to interview between 30% to 100% of all fraud level B cases; and between 10% and 50% of all fraud level C cases. After the case is entered in MFAS, the adjudicator enters the fraud level and the computer determines if the case will be sent for interview depending on the percentage of cases the district office wants to interview.

Note: As of May 25, 2001, users of the Marriage Fraud Amendment System (MFAS) can set up their interview schedules up to six months in advance. Additionally, MFAS will now allow users to delete dates from the Interview Calendar, even if there are cases scheduled for that date. Those cases will automatically return to the "Ready for Interview Scheduling" status.

(4) Types of Cases . The following is a breakdown of the Marriage Fraud cases after adjudication by the service center adjudicator, as indicated in the MFAS support system:

(A) Case Granted . These are cases for which MFAS has determined that an interview is not needed after the adjudicator entered the fraud level. The case is stamped with the adjudicator's approval stamp and routed to an application clerk who sends out the approval notice.

(B) Scheduled for Interview . If the computer determines that an interview is required, the MFAS automatically slots the petitioner into an available time slot for the district where the petitioner lives. If all available interview slots are filled for the district office, then a "no schedule" phrase is issued. As soon as an interview time is available, they will be slotted into it. Special care should be taken to verify the address and zip code because the interview site is chosen based on the zip code entered from the I-751 .

(C) Overseas Holds . These are cases where the petitioner and/or spouse live outside the U.S. The case is held pending until the return of the petitioner and/or spouse for a U.S. address to be entered into the computer. Once a U.S. address is known the case can be entered into the computer to see if an interview is required.

Form I-751s filed by Conditional Permanent Residents ( CPRs) who are currently overseas pursuant to military or government orders and who have valid APO/FPO addresses are not automatically placed on an “ overseas hold .” Instead, the director will review the Form I-751 and supporting documentation filed by the CPR and his or her spouse to determine whether or not to waive the interview requirement.

(D) Terminations . These cases are denied for failure to file. They are put in a 60 day call-up category to give the petitioner and spouse a last chance to file the Form I-751 . If they have not filed after the 60 day call-up time frame has expired, the case is routed to the district office for a Notice to Appear to be issued.

(E) Improperly Classified . These are cases where the petitioner (conditional permanent resident) was incorrectly classified when he/she entered the U.S. (generally because the inspecting or adjudicating officer failed to notice that the alien had been married for at least two years at the time the alien was admitted to the U.S. as a permanent resident or adjusted his/her status to that of a permanent resident). When the adjudicator of the Form I-751 determines that the alien was improperly classified as a conditional resident, the adjudicator should issue the individual a letter telling the alien that he/she was incorrectly classified and advising him/her to go to a district office to file an I-90 for issuance of an I-551 at no cost. The Form I-751 is also processed for a fee refund on Form G-266, and the Form I-751 is counted as a “statistical denial.”

(F) Battered Spouse . The battered spouse's address is verified and then the case is sent to an adjudicator. The address is verified so that notices are not sent to the wrong person. After updating in the computer the case is sent to a District office for interview.

(G) OASIS Flag . [(b)(2) or (b)(7)(E)]

(5) Inability of Child to Be Included in Joint Petition . As a matter of administrative convenience, the regulations allow a conditional resident child who is unable to be included in his/her parents’ joint petition to file an separate Form I-751. (This could also be thought of as a hardship issue since otherwise the child would be separated from his or her parent, but the child filing such petition need not document extreme hardship.) Circumstances under which this situation might arise include:

• A child whose conditional resident parent has died;

• A child who entered the U.S. more than 90 days after his conditional resident parent and therefore does not have sufficient residence in the U.S. to qualify for removal of conditions on the joint petition (but verify that the parent and step-parent’s joint petition has been granted before approving the child’s petition); and

• Any other circumstances whereby in the determination of the director, the child is prevented from being included in the joint petition of his or her parent and step-parent through no fault of the child or his or her parents.

In adjudicating the separate petition of a child, you must be satisfied that the conditional residence status was not obtained through fraud and that the petition’s approval would not further a fraud scheme. For example, you would not approve a separate petition filed by a child which would enable an otherwise ineligible parent (who obtained conditional status through a questionable marriage) to make a stronger case for an extreme hardship waiver.

h) Waiver of Joint Filing .

These are cases where the petitioner and the spouse do not file a joint petition. They are usually filed because the petitioner and spouse are divorced, or the petitioner (child of the conditional spouse) could not enter or follow to join the conditional spouse. The documentation to be submitted, and the factors to be determined in the adjudication process, depend on the type of waiver being sought. Section 216(c)(4) of the Act allows an alien to file a waiver application under one (or more) of three circumstances: extreme hardship (section 216(c)(4)(A) ), good faith and not at fault (section 216(c)(4)(B) ) , and battering or extreme cruelty (section 216(c)(4)(C) ). Note: Although section 216(c)(4) is entitled “Hardship Waiver”, only waivers under paragraph (A) require that the applicant establish a level of hardship; waivers under the other two paragraphs depend on other issues.

(1) Extreme Hardship . The waiver applicant must establish that extreme hardship would result if he or she is removed from the U.S . Some important things to remember when adjudicating a waiver filed on this basis are:

• There is no requirement that the applicant establish that the marriage had been entered into in good faith. However, indications that the marriage had been in bad faith may be considered when weighing the discretionary factors.

• Whether the alien has already suffered hardship during or prior to his or her status as a conditional resident is irrelevant. Only extreme hardship which would result from deportation (presumably to the alien’s home country) is pertinent. The statute is prospective, not retrospective, in this regard. However, in some situations hardship already experienced can have a bearing on hardship which an alien might expect to experience if he or she is removed. For example, in some countries, a woman who has been di vorced may suffer extreme isolation (“shunning”) in her home country or culture which rises to the level of persecution. While such conditions may be rare, they are definitely not non-existent.

• Because the adjudication of a waiver application is a matter of discretion, factors which are not directly related to the marriage fraud provisions may be taken into account. However, only the most significant negative factors would justify denial of an application where the applicant has sufficiently established that he or she would be subjected to extreme hardship if deported. As with any adjudication proceeding, the applicant bears the burden of proof to establish eligibility for the benefit sought.

(2) Good Faith, Not at Fault . Despite the best intentions, marriages do not always work out, and sometimes even bona fide marriages fall apart in less than 2 years. IMFA was not meant to be a tool to be used against unlucky or unlikely marriages; it was meant to be a tool against fraud. Accordingly, IMFA provides for a waiver if the alien can establish that he or she entered the marriage in good faith and he or she was not at fault in failing to meet the IMFA requirements. Things to consider when adjudicating this type of waiver inclu de:

• Weight is not given to who filed the divorce. (Initially, the statute required that the alien had to be the moving party in the proceedings to terminate the marriage (i.e., that the alien had terminated the marriage for “good cause”). This occasionally resulted in what became known as “the race to the courthouse.” Since the issue was meant to center on whether the alien had good faith when immigrating, not on whose attorney could file for divorce faster, this requirement was dropped.)

• It does not matter if the conditional resident’s spouse entered the marriage in good faith, only the intent of the conditional resident him or herself is relevant. Interviewing the conditional resident’s former spouse (either in response to a call-in letter, a field examination or a referral to Investigations) may provide relevant and valuable information on the alien’s intent, or it may only result in a spiteful diatribe. Adjudicators should always be aware of the source and motivation of information provi ded. Also, when interviewing a former spouse, always be extremely careful not to divulge any information (such as the alien’s current location) which could result in the alien being subjected to abuse or battering.

• In determining good faith, it is usually helpful to look at the actions of the parties following immigration to the U.S. The same clues which can be useful in an ongoing marriage (e.g., did they establish joint bank account, were health insurance issues coordinated, etc.) are valuable indications of a fraudulent marriage. Perhaps assets which were commingled at the beginning of the marriage would have just been divided at the end. Reviewing the property settlement, which usually accompanies the divorce decr ee, may provide valuable information.

• The statute requires that the alien establish that he or she “was not at fault in failing to meet the requirements” for filing a joint petition for removal of conditions. This should not be read as requiring that the alien’s divorce decree finds his or her spouse to have been at fault, nor does it require that the divorce was obtained on a no-fault basis. You still might determine that the alien was wholly or partly responsible for not meeting the joint petitioning requirements. Likewise, a divorce decree s tating that the alien was “at fault” (with regards to the breakup of the marriage) does not preclude you from independently determining that he or she was not at fault, at least with regard to the requirements of the immigration law.

As the adjudicator, you must make your own determination on this issue. While the language of the divorce decree may provide useful information on the reasons why the marriage was terminated (and therefore why a joint petition was not possible), and may even significantly increase the alien’s burden of proof, the decision on whether to grant the waiver belongs to the Service, not to the divorce court judge. Remember that in the worst marriage fraud cases, the parties to the fraud would agree in advance that the alien would file for divorce and that the petitioning spouse would accept fault for the breakdown of the marriage.

• The statute uses the phrase “has been terminated” when talking about the marriage. As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or sh e may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genc o Opinion 96-12) .

(3) Battering or Extreme Cruelty . The original IMFA (as enacted in 1986) did not contain a separate waiver provision for victims of battering or extreme cruelty. Although in most cases, such victims could easily qualify for either of the two waiver provisions, Congress found that there was a need to spell out that victims of such treatment are entitled to special consideration under the law. As a result, section 216 of the Act was amended by section 701 of the Immigration Act of 1990 to add this waiver. It is important that in adjudicatin g such waiver applications INS officers are aware of and in accord with the views of Congress in passing this legislation. Other issues to bear in mind when adjudicating a battering or extreme cruelty waiver include:

• Persons who have been subjected to such treatment may have difficulty in discussing their experiences. While it is almost always necessary to discuss the abusive events with the applicant, such discussions should be carried on in a professional manner which does not further abuse the applicant by forcing him or her to unnecessarily re-live abusive episodes.

• Police reports and hospital records can be key documents in establishing that battering or extreme cruelty existed, but not all cases of abuse contain these items. Officers must be prepared to accept and evaluate other, less traditional, forms of documentation. Conversely, in the worst marriage fraud cases it is not unheard of for evidence of abuse or battering to be fabricated (someone who is willing to commit marriage fraud would not be unwilling to file a false police report).

(i) Interview at the Local Office . Unless waived, an interview shall be conducted by an immigration adjudicator or other officer at the district office, files control office or suboffice having jurisdiction over the joint petitioners’ residence.

(1) Joint Petition . An interview based on a joint petition is used to determine the bona fides of the marriage. As such, it is quite similar to an interview conducted in relation to a pending I-130 petition or a (marriage-based) adjustment application. (See Chapter 21.3 and Chapter 23 of this field manual, resp. General interview techniques and procedures are also discussed in Chapter 15 of this field manual.)

It is important to remember that the only issues being resolved through the I-751 interview process are those relating to the bona fides of the marriage and the removal of conditions. Should any other issues arise, they must be dealt with outside the I-751 interview and adjudication process. (Since there is no discretionary authority to be exercised when adjudicating a joint petition, the other factors have no bearing on the case at hand.) For example, if during an I-751 interview you determine that you hav e no doubts about the bona fides of the marriage but also determine that the conditional resident had been arrested and convicted for a crime involving moral turpitude, you could not deny the Form I-751 joint petition on that basis. Instead, you would have to either initiate rescission proceedings under section 246 of the Act (see Chapter 26 of this field manual) or refer the case to Investigations for initiation of removal proceedings (depending on when the arrest and conviction occurred).

(2) Waiver of Joint Petitioning Requirement . Only under the rarest of circumstances should the interview requirement be waived in the case of an alien seeking a waiver of the filing requirement under section 216(c)(4) of the Act. When interviewing an applicant for a joint waiver, remember that he or she may have suffered an extreme hardship, may be uncomfortable about the dissolution of his or her marriage, may even have been the victim of spousal (or parental) abuse (otherwise he or she should not have filed the waiver application). While you are required to conduct a thorough interview to uncover the facts of the case, you should do so in a professional manner which avoids unnecessary discomfort or embarrassment to th e alien.

In determining whether extreme hardship exists or existed, be aware that the statute only allows factors and circumstances which occurred or arose during the time when the alien was a conditional permanent resident. Factors arising, or events occurring, outside of that time period should not be considered (unless they can be tied to related events which happened during such time period).

Normally, an alien will only seek a waiver on one of the grounds set forth in section 216(c)(4) of the Act. However, on occasion an alien may claim to be eligible for a waiver on more than one ground. If so, the applicant must indicate all applicable waivers on the Form I-751, with the exception of the spousal/parental abuse waiver (which may be sought either on the same application or on a separate application). Your interview must cover all of the grounds for which waiver eligibility is claimed. If you find that the alien is not eligible under each of the grounds claimed, the waiver application mus t be denied.

Note : While the applicant is required to state all grounds on the one application (with the exception of the spousal/parental abuse waiver), the failure to do so at the time of filing may be cured by amending the form at the time of interview, if the interviewing officer determines that a different waiver ground is more applicable. Likewise, if after the application has been denied it is determined that the alien would have had a better claim based on a ground other than the one(s) claimed, the applicant may fi le a motion to reopen the proceedings and amend the application. The Service would then have to decide whether there is sufficient justification for reopening the proceeding and (if so) render a new decision on the merits of the reopened case.

Unlike joint petition proceedings, the statute on IMFA waiver proceedings grants the Attorney General discretionary authority. Accordingly, if significant negative factors are discovered during the waiver interview (such as the alien having a criminal record) which outweigh the positive factors, they can be used to deny the waiver application.

(j) Post-adjudication Actions .

(1) Approval . If the Form I-751 is approved, the alien is notified of the approval (which may be by the CLAIMS system if the approval is done at a service center, in person if the approval is done during the interview at a local office, or by letter if it is done by a local office at a later date). The alien is also either processed for a new Form I-551 or (if the approval is not done at the interview) instructed on how to be processed for a new I-551. Do not forget that an approval of a Form I-751 joint petition or wa iver application also applies to any conditional resident children who are included on the form and are eligible for removal of conditions. (But not to a child who has not acquired at least 21 months of residence; that child would have to file a separate I-751 at a later date under the regulatory waiver provision.)

(2) Denial . There is no appeal from the denial of a Form I-751 filed as either a joint petition or a waiver application. Instead, the alien is placed in removal proceedings where he or she may renew the petition or application before the immigration judge. Do not forget that an approval of a Form I-751 joint petition or waiver application also applies to any conditional resident children who are included on the form and are eligible for removal of conditions.

(k) Naturalization Issues Relating to Conditional Residence .

.(1) Form I-751 Filed by a Naturalized Citizen . If, prior to the second anniversary of his or her date of admission or adjustment as a conditional permanent resident, an alien naturalizes (such as an alien who qualifies under sections 319(b) , 319(c) or 319(d) of the Act), the requirement to apply for removal of conditions no longer exists. Should a naturalized citizen file a Form I-751, either jointly with his or her spouse or individually as a waiver under section 216(c)(4) of the Act, the naturalized citizen should be advised in writing that, as a citizen of the U.S., the removal of conditions provisions do not apply to him or her. If there was Service error involved in the Form I-751 being filed (for example, if the citizen received a computer-generated notice from the Service that he or she had to file such petition), the filing fee should be refunded. The Form I-751 should be counted as a statistical denial.

Note: If the naturalized citizen is the parent of a child who was admitted as a conditional resident based on the parent’s marriage, and that child did not also become a citizen, the child is required to file Form I-751 for removal of conditions under 8 CFR 216.4(a)(2) .

(2) Removal of Conditional Resident Status Prior to, or Concurrently with, Adjudication of Form N-400 . Ideally, any Form I-751 that is submitted by a conditional resident will be adjudicated prior to the conditional resident’s filing of an application for naturalization; however, the disparity in adjudication times of Forms I- 751 and Forms N-400 is such that this may not always be the case. In general, if a USCIS officer is scheduled to examine an applicant for naturalization who was admitted as a conditional resident, the USCIS officer must ensure that the Form I-751 filed by the conditional resident h as been adjudicated and approved and that the conditions on the conditional resident’s status have been removed.

(A) Form N-400 Filed Under INA 319(a) or 319(b) . In almost all cases, a Form N-400 that is filed while a Form I-751 is pending will have been filed under either section 319 (a) or 319(b) of the Immigration and Nationality Act (Act). Each of these sections of law requires a higher level of evidence of marital union and joint residence than is required for the approval of Form I-751 filed jointly. If a Form I- 751 is pending at the time of the conditional resident’s examination on the Form N-400, the USCIS officer adjudicating the Form N-400 shall conduct the N-400 examination. If the applicant demonstrates 319(a) or 319(b) eligibility and the Form I-751 is in the file, the U SCIS officer shall approve the Form I-751 and update MFAS.

If the Form I-751 is not present, the USCIS officer shall proceed with the naturalization examination and request that the Form I-751 be forwarded to him or her. The USCIS officer shall continue the adjudication of the Form N-400 until such time that the Form I-751 is received. Once the Form I-751 is received, the USCIS officer will simultaneously adjudicate the Form I-751 and the Form N-400. The final decision on the Form I-751 should be updated in MFAS.

(B) Form N-400 Filed under Any Other Eligibility . If the Form N-400 is filed under some section of law that does not require marital union, the USCIS officer shall request the Form I-751 and continue the adjudication of the Form N-400 until such time that the Form I-751 is received. Once the Form I-751 is received, the officer must complete simultaneous adjudication of the Form I-751 and the Form N-400.

Under no circumstances should a Form N-400 be continued until a pending Form I-751 is adjudicated at the Service Center having jurisdiction over the said form. Adjudication of a conditional resident’s application for naturalization must not be delayed due to USCIS processing delays of Forms I-751. Also, under no circumstances should a Form N-400 be approved prior to the adjudication of a pending Form I-751. The USCIS officer adjudicating the Form N-400 must request the pending Form I-751 and complete a si multaneous adjudication of the Form N-400 and Form I-751.

(l) Precedent Decisions . The following precedent decisions pertain to the adjudication of joint petitions to remove conditions and applications for waivers of the requirement to file such joint petitions:

• Matter of Lemhammad , 20 I&N Dec. 316 (BIA 1991) - Original jurisdiction to rule on the merits of an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions rests only with the Service, and not the immigration judge.

• Matter of Mendes , 20 I&N Dec. 833 (BIA 1994) - Where the parties to a marriage have jointly filed a Petition to Remove the Conditions on Residence, but one of the parties withdraws support from the petition before its adjudication, the joint petition shall be considered withdrawn and shall be adjudicated under section 216(c)(2)(A) of the Act (i.e., the CPR status terminated). When a respondent in deportation proceedings has not filed an application for a waiver under section 216(c)(4) of the Act and is prima facie eligible for such relief, the proceedings should be continued in order to grant the respondent a reasonable opportunity to file the application before the Service and for the Service to decide the application.

• Matter of Anderson , 20 I&N Dec. 888 (BIA 1994) - A conditional permanent resident alien who seeks to remove the conditional basis of that status by means of a waiver under section 216(c)(4) of the Act should apply for any applicable waiver provided under that section. An alien whose application for a specific waiver under section 216(c)(4) of the Act has been denied by the Service may not seek consideration of an alternative waiver under that section in deportation proceedings before the immigration judge. Where an alien beco mes eligible for an additional waiver under section 216(c)(4) of the Act due to changed circumstances, the proceedings may be continued in order to give the alien a reasonable opportunity to submit an application to the Service. Inasmuch as the Board of Immigration Appeals only has authority to review a waiver application after the Service and the immigration judge have considered it, an alien may not apply for a waiver under section 216(c)(4) of the Act on appeal.

• Matter of Nwokoma , 20 I&N Dec. 899 (BIA 1994) - The Service retains authority to deny a Joint Petition to Remove the Conditional Basis of Alien's Permanent Resident Status pursuant to section 216(c)(3)(A) of the Act, notwithstanding the Service's failure to adjudicate the joint petition within 90 days of the interview of the alien and his or her spouse.

• Matter of Gawaran , 20 I&N Dec. 938 (BIA 1995) - The provisions of former section 241(f)(1) of the Act, do not waive an alien's deportability under former section 241(a)(9)(B) of the Act, because termination of the alien's conditional permanent resident status constitutes a basis for deportability which is separate and distinct from the charge that the alien is "excludable at the time of entry" within the meaning of former section 241(f)(1). In order to preserve an application for relief under section 216(c)(4) of the Act, a n alien must request before the immigration judge a review of the Service's denial of such application.

• Matter of Tee , 20 I&N Dec. 949 (BIA 1995) - An alien becomes statutorily ineligible for approval of a joint petition under section 216(c)(1) of the Act where the marriage has been terminated prior to adjudication of the petition.

Adjustment of Status to Lawful Permanent Resident. Precedent Decisions Pertaining to Adjustment of Status

(1) Some Precedent Decisions Dealing with General Eligibility for Adjustment of Status to That of Permanent Resident :

• Matter of Egbunine , 19 I. & N. Dec. 478 (BIA, 1987) . An alien may not adjust his status if he seeks to receive an immigrant visa on the basis of a marriage which was entered into while the alien was in immigration proceedings.

• Matter of Arthur , 20 I. & N. Dec. 475 (BIA, 1992) . Alien may adjust status based on a marriage entered into after the commencement of proceedings if the alien establishes "by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and ...was not entered into for the purpose of procuring the alien's entry as an immigrant."

• Matter of Ching , 15 I. & N. Dec. 772 (BIA, 1976) . Where a visa petition has not been approved, applicant is statutorily ineligible for section 245 relief.

• Matter of Stockwell , 20 I. & N. Dec. 309 (BIA, 1991) . Section 245(d) of the Act does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

• Matter of Tabcum , 14 I. & N. Dec. 113 (R.C., 1972) . An alien who is the "accompanying spouse" of an exchange visitor's alien is subject to the foreign residence requirement of section 212(e) and is therefore ineligible for adjustment of status.

• Matter of Davis , 10 I. & N. Dec. 441 (BIA, 1964) . An alien who entered the U.S. as a transit without visa is ineligible for adjustment of status.

• Matter of Loo Bing Sun , 15 I. & N. Dec. 307 (BIA, 1975) . An alien admitted with a nonquota immigrant visa procured by fraud is ineligible for adjustment of status if inadmissible under section 212(a)(19) and ineligible for 212(i) waivers.

• Matter of Monteran , 11 I. & N. Dec. 717 (BIA, 1966) . An alien who (1) was born in the U.S., (2) expatriated abroad, and (3) was paroled into the U.S., is eligible for adjustment of status.

• Matter of Krastman , 11 I. & N. Dec. 720 (BIA, 1966) . An alien who, following lawful admission to the U.S. for permanent residence, became deportable because of conviction for crimes involving moral turpitude, is not precluded from establishing statutory eligibility for adjustment of status.

• Matter of Sanchez-Linn , 20 I. & N. Dec. 362 (BIA, 1991) . An applicant for registry under section 249 of the Act must prove he or she is at present a person of good moral character, and has been such for a reasonable period of time preceding the application.

• Matter of Naulu , 19 I. & N. Dec. 351 (BIA, 1986) . A derivative beneficiary "accompanying or following to join" the principal alien cannot precede the principle. However, once the principal acquires permanent resident status, the spouse and/or child is not barred from adjustment by reason of having preceded him as a nonimmigrant.

(2) Some Precedent Decisions Dealing with Whether an Alien Has Been Inspected and Admitted or Paroled .

• Matter of Areguillin , 17 I. & N. 308 (BIA, 1980) ; Matter of V-Q- , 9 I. & N. Dec. 78 (BIA, 1960) ; Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) . Physically presenting oneself for questioning and making no knowing false claim to U.S. citizenship constitutes being inspected and admitted for section 245 purposes.

• Matter of Areguillin , 17 I. & N. Dec. 308 (BIA, 1980) . The alien bears the burden of proving presentation of inspection to establish eligibility for adjustment of status.

• Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) ; Matter of Woo , 11 I. & N. Dec. 706 (BIA, 1966) . An alien who gains admission to the U.S. by a knowing false claim to citizenship has not been "inspected and admitted".

• Matter of Robles , 15 I. & N. Dec. 734 (BIA, 1976) . Entry after intentionally evading the inspection required by the immigration laws and regulations is an entry without inspection, and the alien cannot be deemed inspected and admitted.

• Matter of Lim , 10 I. & N. Dec. 653 (BIA, 1963) . An alien who entered as a member of the U.S. Coast Guard is ineligible for adjustment of status, because he was not inspected and admitted, or paroled into the U.S.

(3) Some Precedent Decisions Dealing with Crewman Arriving by or Destined to a Vessel :

• Matter of Rebelo , 13 I. & N. Dec. 84 (BIA, 1968) distinguished; Matter of Campton , 13 I. & N. Dec. 535 (BIA, 1970) . An alien who is a crewman by occupation and whose last entry was sought and gained solely as a crewman is ineligible for adjustment of status notwithstanding an earlier admission as a temporary visitor for pleasure. (What matters is the most recent entry. For example, if an alien who is a crewman by profession last sought entry as a visitor for pleasure and was admitted as such (or paroled), he or she is eligible to apply for adjustment of status.

• Matter of Goncalves , 10 I. & N. Dec. 277 (BIA, 1963) . An alien's entry in transit as a seaman to join a ship and depart constitutes entry as a crewman, and he or she is therefore ineligible to apply for adjustment of status.

• Matter of Quintero-Correa , 11 I. & N. Dec. 343 (BIA, 1964) . Arrival as a "workaway" does not preclude adjustment of status in the case of an alien who has no background as an occupation seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a temporary visitor for pleasure.

(4) Some Precedent Decisions Dealing with Unauthorized Employment :

• Matter of Raol , 16 I. & N. Dec. 466 (BIA, 1978) . An alien's employment is unauthorized unless the Service has specifically approved the employment. A labor certification issued by the Secretary of Labor does not, in itself, authorize an alien's employment in the U.S.

• Matter of Tien , 17 I. & N. Dec. 436 (BIA, 1980) . When the basis for an alien's application for adjustment has ceased to exist (e.g., if the alien no longer intends to work for the employer who obtained his or her labor certification), the application is deemed abandoned, and the alien is no longer exempted from section 245(c) of the Immigration and Nationality Act.

• Matter of Hall , 18 I. & N. Dec. 203 (BIA, 1982) ; A alien who engages in fund-raising activities as part of his missionary work and receives full support is considered to have engaged in unauthorized employment and is therefore barred from adjusting status.

(5) Some Precedent Decisions Dealing with an Alien Who Is Likely to Become a Public Charge :

• Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977) . Where the record reflects applicants were receiving public assistance with no prospects for their earning a livelihood or providing self support the application for adjustment of status would be denied.

• Matter of Perez , 15 I. & N. Dec. 136 (BIA, 1974) . The fact that an alien has been on welfare does not, by itself, establish likelihood of becoming a public charge.

• Matter of Harutunian , 14 I. & N. Dec. 583 (R.C., 1974) ; Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977). A determination as to the likelihood of becoming a public charge should take into consideration factors such as an alien's age, incapability of earning a livelihood, a lack of sufficient funds for self-support, and lack of a person willing and able to assure that the alien will not need public support.

(6) Some Precedent Decisions Dealing with Discretionary Denials :

• Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . An applicant for adjustment who meets the objective prerequisites is merely eligible for adjustment of status and is in no way entitled to adjustment.

• Matter of Arthur , 20 I. & N. Dec 475 (BIA, 1992) . Motions to reopen for consideration of applications for adjustment of status based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) (married while in proceedings) will not be granted.

• Matter of Lee , 13 I. & N. Dec. 236 (BIA, 1969) ; Matter of Tayeb , 12 I. & N. Dec. 739 (BIA, 1968) . Consideration must be given to an advisory report from the Department of State which indicates the alien's adjustment would have an adverse effect on relations with the applicant's government.

• Matter of Barrios , 10 I. & N. Dec. 172 (BIA, 1963) . The favorable exercise of discretion is warranted when an alien entered the U.S. as a nonimmigrant fully intending to comply with the terms of admission and did not formulate a specific intention to become a permanent resident until after arrival.

• Matter of Francois , 10 I. & N. Dec. 168 (BIA, 1963) ; Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . Good moral character is a factor which must be considered in determining whether discretion should be exercised in a particular case.

• Matter of Khan , 17 I. & N. Dec. 508 (BIA, 1980) . Unauthorized employment alone should not ordinarily result in the discretionary denial of adjustment to those individuals who are statutorily eligible for that relief, no other negative considerations being present.

• Matter of Aguirre , 13 I. & N. Dec. 661 (BIA, 1971) . An officer must make an independent exercise of discretion on all the facts present.

• Matter of Blas , 15 I. & N. Dec. 626 (A.G., 1976) . Although family ties will ordinarily result in favorable exercise of discretion, they neither must nor should be used where it appears that the alien has engaged in a course of deception designed to produce those very ties.

• Matter of Kai Hing Hui , 15 I. & N. Dec. 288 (BIA, 1975) . An alien who gained entry by using a nonresident alien Mexican border crossing card obtained by misrepresentation is excludable under section 212(a)(6)(C)(i), and the case does not merit the favorable exercise of discretion.

• Matter of Tanahan , 18 I. & N. Dec. 339 (R.C., 1981) . Adjustment of status under section 245 was not designed to supersede the regular consular visa-issuing processes or to be granted in non-meritorious cases.

• Matter of Arai , 13 I. & N. Dec. 494 (BIA, 1970) ; Matter of Leung , 16 I. & N. Dec. 12 (DD, 1976) . Where adverse factors are present in a given application for adjustment of status, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. In the absence of adverse factors, adjustment will ordinarily be granted as a matter of discretion.

• Matter of Garcia-Castillo , 10 I. & N. Dec. 516 (BIA, 1964) . Entry as a nonimmigrant with a preconceived intention to remain is a serious adverse factor to be considered.

• Matter of Cavazos , 17 I. & N. Dec. 215 (BIA, 1980) . In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain.

• Matter of Ibrahim , 18 I. & N. Dec. 55 (BIA, 1981). The benefits of Matter of Cavazos , supra , are limited to immediate relatives, and an application for adjustment by a fifth preference immigrant with a preconceived intention to remain is properly denied in the exercise of discretion.

• Matter of Baltazar , 16 I. & N. Dec. 108 (BIA, 1977) . Evidence indicating that the alien obtained a sham divorce primarily to obtain immigration benefits is a significant adverse factor bearing on discretion.

• Matter of Ozcan , 15 I. & N. Dec. 301 (BIA, 1975) . An alien who has misstated or at least materially overstated qualifications on an application for a labor certification does not warrant the favorable exercise of discretion.

USCIS Civil Surgeons Locator, Adjustment of status, Permanent Resident, Green Card, Civil Surgeons Illinois, Medical Exam Form I-693

All applicants for adjustment of status are required to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the U.S. Citizenship and Immigration Service (USCIS). The designated civil surgeon is responsible for the entire medical examination, and will record the results on Form I-693. The required medical exam consists of a physical examination, a tuberculin (TB) skin test and a serologic (blood) test. The designated civil surgeon must perform these tests in accordance with the Technical Instruction for the Medical Examination of Aliens in the United States, published by the Centers for Disease Control and Prevention (CDC). The Form I-693 will be given to you in a sealed envelope to present to the USCIS. You should not open the sealed envelope. The requirements of the medical examination are as follows:

PHYSICAL EXAMINATION: Required of ALL applicants.

TUBERCULIN (TB) SKIN TEST: Required of ALL APPLICANTS TWO YEARS OF AGE AND OLDER. Applicants under the age of two may be required to have a tuberculin skin test if tuberculosis is suspected, if the applicant has a history of contact with a known TB case, and/or if there is any other reason to suspect TB. A chest x-ray is required only if the reaction to the TB skin test is 5mm or greater.

SEROLOGIC (BLOOD) TEST: Required of ALL APPLICANTS 15 YEARS OF AGE AND OLDER. The serologic test will include tests for the virus that causes the acquired immune deficiency syndrome (AIDS). Applicants under the age of 15 must be tested if there is reason to suspect HIV infection.

USCIS Civil Surgeons Locator
https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator. office_type=CIV
______________________________

From: Michael Aytes /s/ Associate Director, Domestic Operations
Date: January 3, 2007

Re: Extension of Validity of Medical Certifications on Form I-693

This memorandum temporarily extends the validity of civil surgeon endorsements on Form I-693 for certain adjustment of status applicants.

For adjustment of status applicants, the endorsement of a civil surgeon on Form I-693, Medical Examination of Aliens Seeking Adjustment of Status, is generally valid for one year. Some adjustment of status applications are concurrently filed with an immigrant visa petition as provided for at 8 CFR 245.2(a) (2).

These applications are filed with a Form I-693 as required by 8 CFR 245.5. Some of these applications remain pending for more than the one-year validity period.

In a policy memorandum dated January 11, 2006, U.S. Citizenship and Immigration Services (CIS) extended the validity of the civil surgeon endorsement on Form I-693 until the adjustment of status application could be adjudicated. This policy was issued in consultation with the Centers for Disease Control and Prevention (CDC) and is limited to those applications where no Class A or Class B medical condition was certified. The policy is in effect until January 1, 2007.

Due to the continuing backlog of some concurrently filed adjustment of status applications, the validity of the civil surgeon’s endorsement on Form I-693, when submitted in support of a concurrently filed adjustment of status application as provided for at 8 CFR 245.2(a) (2), is extended until the time of adjudication if no Class A or Class B medical condition is certified by the civil surgeon. This policy will be in effect until January 1, 2008.

Download Memo: http://www.uscis.gov/files/pressrelease/I693MedExt010307.pdf

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Medical Examinations.

(a) Medical Grounds of Inadmissibility Defined . Section 212(a)(1)(A) of the Act designates four categories that render an applicant for a visa, admission, or adjustment of status inadmissible on medical grounds. The medical grounds are determined according to the regulations published by the Department of Health and Human Services (HHS) at 42 CFR part 34. The required medical exam, discussed in Chapter 23.3(b), below, must be performed according to the specific guidelines published by the Centers for Disease Control and Prevention (CDC). These are the Technical Instructions for the Medical Examination of Aliens in the United States , used by civil surgeons in the United States, and the Technical Instructions for the Medical Examination of Aliens , used by panel physicians abroad. ( Technical Instructions) . The Technical Instructions have the force of a regulation. See 42 CFR 34.3(f). They can be accessed online at: www.cdc.gov/ncidod/dq/technica.htm . If the medical condition found by the panel physician or civil surgeon falls under any of the four categories described below, the civil surgeon or panel physician must certify it as Class A in order for the applicant to be inadmissible on medical grounds. Class B medical conditions are defined at 42 CFR § 34.2(e) as physical or mental abnormalities, diseases, or disabilities serious in degree or permanent in nature amounting to a substantial departure from normal well-being; however, they do not render the applicant inadmissible on medical grounds. Waivers are discussed in Chapter 41.3.

(1) Section 212(a)(1)(A)(i) of the Act . This ground of inadmissibility covers individuals who are found to have a communicable disease of public health significance, including, “. . . infection with the etiologic agent for acquired immune deficiency syndrome.” The HHS regulations that define a communicable disease of public health significance are found at 42 CFR § 34.2(b). The following eight conditions are listed: chancroid; gonorrhea; granuloma inguinale; acquired immune deficiency syndrome (HIV/AIDS); Hansen’s disease (infectious leprosy); lymphogranuloma venereum; infectious state syphilis; and infectious tuberculosis (TB). Note that, for TB, only Class A TB renders the applicant inadmissible under section 212(a)(1)(A)(i) of the Act. Under current CDC guidelines, Class A TB means tuberculosis that is clinically active and infectious (communicable).

(2) Section 212(a)(1)(A)(ii) of the Act . This ground covers only immigrant visa and adjustment of applicants who have not received all of the required vaccinations. See Chapter 23.3(g) further below.

(3) Section 212(a)(1)(A)(iii) of the Act . This ground covers individuals who have a physical or mental disorder or harmful behavior associated with that disorder. It is further divided into two subcategories:

(I) Current physical or mental disorders, with harmful behavior associated with that disorder; and

(II) Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

Note 1: Harmful behavior is defined under section 212(a)(1)(A)(iii) of the Act as behavior that “. . . may pose, or has posed, a threat to the property, safety, or welfare of the alien or others . . . .”

Note 2: Mental retardation no longer renders an applicant inadmissible on medical grounds, unless the civil surgeon or panel physician determines that the applicant is also exhibiting or has exhibited in the past, associated harmful behavior, as described in Note 1.

(4) Section 212(a)(1)(A)(iv) of the Act . This ground of inadmissibility covers individuals who are found to be drug abusers or drug addicts. The Technical Instructions published by the CDC refer to the nonmedical use of a psychoactive substance, and make an exception for experimentation. The CDC has instructed civil surgeons and panel physicians to use their clinical judgement and/or seek a consultation when facing a situation where the applicant’s medical history indicates past nonmedical use of a psychoactive substance or when there is a clinical question as to whether the use was experimental or part of a pattern of abuse. If you have valid reasons to question the com pleteness or accuracy of the medical exam report, you may direct the applicant to return to the civil surgeon or panel physician for a reexamination or ask the CDC to review the medical report.

(b) Aliens Required to Have a Medical Examination . Because section 212(a)(1)(A) of the Act states that all medical-related grounds of inadmissibility are determined “. . . in accordance with regulations prescribed by the Secretary of Health and Human Services,” the applicant’s own admission is not sufficient to uphold a finding of inadmissibility on medical grounds. A medical examination performed by panel physician designated by the Department of State or a civil surgeon designated by the district director is required. Hill v. INS, 714 F 2d. 1470 (9 th Cir. 1983). The following requirements apply with respect to medical examinations.

(1) Immigrant Visa Applicants . Per section 221(d) of the Act, all individuals applying for an immigrant visa must submit to a medical examination before the visa is issued.

(2) Refugees Applying for Admission under Section 207 of the Act . Per section 207(c)(1) of the Act, all individuals applying for admission as refugees must, among other requirements, establish that they are admissible to the United States, or establish eligibility for a waiver as provided under section 207(c)(3) of the Act. Because the medical grounds of inadmissibility under section 212(a)(1)(A) of the Act apply, a medical exam is required. For a discussion of the vaccination requirements specifically as they apply to refugees, refer to Chapter 23.3(g)(4)(C).

(3) Adjustment of Status Applicants . Per section 245(a)(2) of the Act, an individual applying for adjustment of status to that of a permanent resident must be “eligible to receive an immigrant visa and [be] admissible to the United States for permanent residence. . . .” Thus, to comply with the visa issuance requirements of sections 221(d) and 245(a)(2) of the Act, and the medical grounds of inadmissibility under section 212(a)(1)(A) of the Act, all individuals applying for adjustment of status under section 245 of the Act are required to ha ve as part of their applications for adjustment of status:

• A valid medical examination (Form I-693, Medical Examination of Aliens Seeking Adjustment of Status ), properly endorsed by a physician authorized to conduct medical examinations for this purpose; and

• A certificate establishing compliance with the vaccination requirements described in section 212(a)(1)(A)(ii) of the Act, unless otherwise exempt. For ease of reading, the vaccination supplement to Form I-693 is referred to in this guidance as the “vaccination sign-off.”

(4) Presumption of Lawful Admission Cases, Section 249 Registry Cases, and Section 289 Indian Cases . A medical examination is not required.

(5) Nonimmigrants .

(A) General . Per section 221(d) of the Act, a consular officer may, prior to the issuance of a nonimmigrant visa, require the applicant to submit to a physical or mental examination or both, if considered necessary to determine whether the applicant is eligible to receive the visa. Similarly, CBP officers at ports-of-entry may require a nonimmigrant (arriving with or without a visa) to submit to a medical examination if necessary to determine whether a medical ground of inadmissibility under section 212(a)(1)(A) of th e Act applies.

(B) Nonimmigrants under Section 101(a)(15)(K) or (V) of the Act . Individuals outside the United States applying for nonimmigrant visas under any provision of section 101(a)(15)(K) or (V) of the Act must undergo a medical exam by a panel physician as part of the visa application process. Individuals in the United States applying for change of status to that of a “V” nonimmigrant pursuant to section 214(o) of the Act must submit with their application a medical exam report (Form I-693) completed by a designated civil surgeon. The vaccination requirements of section 212(a )(1)(A)(ii) of the Act do not apply at this stage of the process. See also Chapter 23.3(g)(4)(J).

(c) Authorized Civil Surgeons . If Form I-693 and the accompanying vaccination supplement have been endorsed by anyone other than a designated civil surgeon, they must be returned to the applicant for corrective action. To verify whether the physician that performed the medical exam is a civil surgeon, go to the USCIS website. The list of designated civil surgeons is found at the end of each individual office profile. Select the office and check the civil surgeon list maintained in the local office profile for the USCIS district where the medical exam was performed. If you cannot access this information from the USCIS intranet, refer to Appendix 23-1 of this field manual from the latest version of I-LINK. The civil surgeon listing found in Appendix 23-1 is divided into three parts (23-1A, 23-1B, and 23-1C) representing the Eastern, Central, and Western regions, respectively. Note, however, that the civil surgeon list maintained on the website is updated daily. Therefore, try to clarify any discrepancies through your district/sub-office and/or your regional point of contact (POC), before you return the case for evidence (RFE the case). If you have reaso n to doubt the authenticity of the endorsement by a civil surgeon within your district, refer to the file maintained in your district office. If you have doubts about the authenticity of an endorsement by a civil surgeon located in another district, consult informally (i.e., by telephone and fax machine) with the Adjudications section of that district office. If informal consultation does not clear up all doubts, refer the matter formally through a request for an auxiliary investigation (see AFM Chapter 10.14 ). See AFM Chapter 83 for the procedures to be followed for certifying, reviewing, and decertifying civil surgeons.

(d) Submission of the Medical Examination Report . According to Form I-485, Application to Register Permanent Residence or Adjust Status , which was last revised on February 27, 2000, the following instructions apply:

• Applications Filed at a Service Center : Individuals applying through a USCIS Service Center (including asylees adjusting under section 209 of the Act), must submit the medical examination report with the adjustment of status application. Note that refugees need only submit the vaccination supplement to Form I-693 (not the entire Form I-693) if there were no medical grounds of inadmissibility that arose during the initial medical exam performed overseas. See 8 CFR § 209.1(c).

• Applications Filed at a District Office : Individuals applying for adjustment of status through a district or sub-office do not submit Form I-693 with the initial filing. Rather, they should be provided instructions about the medical examination in conjunction with the notice of their in-person interview. See Chapter 23.3(g) for information about the specific situations applicable to K and V nonimmigrants.

(e) Validity of Medical Certifications.

(1) General . [Revised as of January 3, 2008; AD 07-22.] Form I-693 is normally valid for a period of 1 year from the date it was endorsed by the civil surgeon. In accordance with the agreements reached between USCIS and the CDC, if the adjustment of status application has been pending for over 1 year and Form I-693 was included with the initial filing, the adjudicating officer may accept a medical exam report that is more than 1 year old because of the pending adjustment of status application, IF there was no Class A or B medical condition noted. This agreement is in effect until January 1, 2008. See January 3, 2007, Extension of Validity of Medical Certifications on Form I-693. http://www.uscis.gov/files/pressrelease/I693MedExt010307.pdf

(2) K and V nonimmigrants . A new medical exam is not required in order to apply for adjustment of status to that of a lawful permanent resident, if one of the following scenarios exists:

• The applicant is a K or V nonimmigrant and the medical exam did not reveal any Class A or B medical condition, and the application for adjustment of status was filed within 1 year of the date of the original medical exam. If these requirements are met, the medical exam remains valid until the date USCIS adjudicates the adjustment of status application; or

• The applicant is a K or V nonimmigrant who received a conditional waiver under section 212(g) of the Act in conjunction with the K or V nonimmigrant visa or the change of status to V. The section 245 adjustment of status application must be filed with USCIS within 1 year of the date of the original medical exam, and the applicant must submit evidence of compliance with the specific terms and conditions imposed on the waiver. The medical exam remains valid until the date USCIS adjudicates the adjustment of status application. If these requirements have not been met, a new medical examination is required. And, if that new medical examination reveals a Class A medical condition, a new waiver application will also be required. In such cases, determine whether the applicant complied with the terms and conditions of the first waiver. That determination should be given considerable weight in the adjudication of a subsequent waiver application.

Note: Although there may be cases where a new medical exam is not required, compliance with the vaccination requirements is still required, as the vaccination sign-off was not included as part of the original medical exam report. See Chapter 23.3(g)(4)(J).

(f) Review of Form I-693 . For those applicants required to undergo a complete medical exam, review Form I-693 to ensure compliance with the following requirements:

(1) Form I-693 Must Be Signed by a Designated Civil Surgeon . To verify whether the physician who performed the medical exam is a designated civil surgeon, refer to the instructions in Chapter 23.3(b).

(2) Form I-693 Must Be Completed Legibly in English and Must Be in a Sealed Envelope . The results must be typed or printed legibly and placed in an envelope sealed by the civil surgeon. If Form I-693 has not been dated and signed by the civil surgeon, has not been completed legibly in English, or if the envelope was not sealed by the civil surgeon or there is evidence of tampering with the sealed envelope, return a copy of the I-693 to the applicant for corrective action.

(3) Form I-693 Must Clearly Indicate That All Required Tests Were Performed and the Results . The medical examination must include all evaluations/assessments/tests necessary to determine whether the applicant is inadmissible on medical grounds under section 212(a)(1)(A) of the Act. Findings of physical and mental disorders and drug abuse must be indicated in the "Remarks" section of Form I-693. If an applicant has been referred for further evaluation for a communicable disease of public health significance, physical or mental disorders with associated harmful behavior, psychoactive substance abus e or other physical or mental abnormalities, diseases or disabilities, the medical report must be accompanied by a definitive diagnosis (or a short list of likely diagnoses) and a statement as to whether the presence or absence of a Class A or Class B medical condition has been established. If the findings have not been clearly stated, return a copy of Form I-693 to the applicant for corrective action.

(4) Form I-693 Must Be Accompanied by a Properly Completed Vaccination Supplement, Unless the Applicant Is Applying for “Adjustment” of Status to V . For a complete discussion of the vaccination requirements and review of the vaccination supplement, refer to Chapter 23.3(g). For a discussion of waiver issues related to the vaccination requirements, see Chapter 41.3(b).

(5) Required Testing . All applicants must undergo a general physical examination and a mental status evaluation. In addition, other tests may be required depending on the applicant’s age and/or possible exposure to a particular disease. If all required tests/evaluations have not been performed, return a copy Form I-693 to the applicant for corrective action.

• Tuberculin (TB) Skin Test : All applicants 2 years of age and older must have a tuberculin skin test (TST). Civil surgeons may require an applicant who is less than 2 years of age to have a TST if he or she has a history of contact with a known TB case, or if there is any other reason to suspect TB disease. If the applicant’s reaction to the TST is 4 millimeters or less, no further testing is required. A chest X-ray is required only when the reaction to the TST is 5 millimeters or more. If the civil surgeon has performed a chest x-r ay for TB, but not a TST, the USCIS office that granted the civil surgeon designation should advise the civil surgeon in writing of the deficiency and of the need to comply with CDC’s Technical Instructions . Forward a copy of the letter and Form I-693 to CDC at the following address:

Chief, Migration Health Assessment Section

Division of Global Migration and Quarantine (E03)

Centers for Disease Control and Prevention (CDC)

Atlanta, Georgia 30333.

If the same civil surgeon receives two such letters of corrective action, the District Director may take appropriate steps to revoke the civil surgeon designation. See Chapter 83.4(c).

• Serologic (blood) tests . All applicants 15 years of age and older must undergo serologic (blood) testing for syphilis and human immunodeficiency virus (HIV) infection. Applicants under the age of 15 must undergo serologic testing if there is reason for the civil surgeon or for DHS to suspect infection.
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Vaccinations.

Section 212(a)(1)(A)(ii) of the Act requires all immigrant visa and adjustment of status applicants to establish that they have been vaccinated against certain vaccine-preventable diseases. Section 212(g)(2) of the Act authorizes waivers in certain instances. To implement the vaccination requirements and the corresponding waiver provisions, USCIS developed streamlined procedures whereby certain individuals may be granted a waiver without the need to file a form or pay a fee. Furthermore, those applicants who are not covered under the streamlined procedures may apply for a waiver on an individual basis. Refer to Chapter 41.3(b) for additional information about these procedures.

(1) Vaccination Requirements Defined . Section 341 of the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) created an additional medical ground of inadmissibility under section 212(a)(1)(A)(ii) of the Act relating to vaccinations. Individuals who are subject to the vaccination requirements who have not complied (or who are unable to submit acceptable proof of compliance) are inadmissible under section 212(a)(1)(A)(ii) of the Act, unless they are fully vaccinated or receive a waiver.

(2) Effective Date . The vaccination requirements became effective on the IIRIRA enactment date, September 30, 1996, and apply with respect to all immigrant visa and adjustment of status applications filed on or after that date.

(3) Required Vaccinations . Section 212(a)(1)(A)(ii) of the Act specifies the following vaccinations: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type b, and hepatitis B. Section 212(a)(1)(A)(ii) of the Act states that the applicant is also required to have any other vaccinations recommended by the Advisory Committee on Immunization Practices (ACIP). The ACIP provides guidelines on appropriate doses of vaccines at specific intervals for specific age groups. The varicella, influenza, and pneumococcal vaccines are also required, because they are currently recommended by the ACIP.

(4) Applicability . Section 212(a)(1)(A)(ii) of the Act states that the vaccination requirements apply with respect to anyone who “. . . seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence . . . .” Thus, the applicability of the vaccination requirements depends on the specific immigration benefit the applicant is seeking. The following list clarifies these distinctions for purposes of section 212(a)(1)(A)(ii) of the Act:

(A) Adjustment of Status and Immigrant Visa Applicants . All adjustment of status and immigrant visa applications filed on or after September 30, 1996, must be sufficient to establish compliance with the vaccination requirements under section 212(a)(1)(A)(ii) of the Act or eligibility for a waiver. The waiver provisions and application procedures are addressed in Chapter 41.3 of this field manual.

(B) Refugees Making an Initial Application for Admission under Section 207 of the Act . USCIS has determined that the vaccination requirements do not apply to individuals seeking admission to the United States as refugees under section 207 of the Act, because there is no application for an immigrant visa or for adjustment of status at this stage of the process. Therefore, the results of a medical examination performed abroad for a refugee seeking admission to the United States under section 207 of the Act need not include the results of a vaccination assessment. DHS officers at ports-of-entry shoul d not refuse admission to refugees solely because they have not yet complied with the vaccination requirements.

(C) Refugees Applying for Adjustment of Status under Section 209 of the Act . Refugees must satisfy the vaccination requirements under section 212(a)(1)(A)(ii) of the Act when they apply for adjustment of status under section 209 of the Act, 1 year following their admission under section 207 of the Act.

The regulations at 8 CFR § 209.1(c) state that "[u]nless there were medical grounds for exclusion at the time of arrival, a United States Public Health Service medical examination is not required." The term “medical ground for exclusion” means only Class A medical conditions. Therefore, a refugee who received a medical exam in conjunction with the initial application for admission under section 207 of the Act generally does not need to repeat the entire medical exam. He or she does, however, need the vaccin ation sign-off from the civil surgeon when adjusting under section 209 of the Act 1 year later. Consequently, USCIS officers should not require refugees to repeat the entire medical exam if it did not reveal a Class A medical condition. A refugee who was found to have any Class B medical condition that would result in any medical ineligibility under section 212(a)(1)(A) of the Act, without proper medical care or follow up, must submit evidence establishing compliance with any follow up examinations or treatment, as may have been required as a condition of the original admission.

Although a new medical examination may not be required, the refugee must nevertheless establish compliance with the vaccination requirements of section 212(a)(1)(A)(ii) of the Act at the time of adjustment under section 209 of the Act, by submitting a vaccination supplement completed by a designated civil surgeon or in certain cases, by a state or local health department official. For information about the designation of state and local health departments as civil surgeons for refugees adjusting under secti on 209 of the Act who need only the vaccination sign-off, refer to Chapter 83.4(b) of this field manual.

(D) Asylees Making an Initial Application for Asylum under Section 208 of the Act . Individuals applying for asylum under section 208 of the Act are not subject to the vaccination requirements under section 212(a)(1)(A)(ii) of the Act. They are not required to undergo a medical exam.

(E) Asylees Applying for Adjustment under Section 209 of the Act . If the asylum application is approved and the individual applies for adjustment of status under section 209 of the Act and 8 CFR § 209.2 at least 1 year later, a complete medical exam is required, including a vaccination assessment, as required under section 212(a)(1)(A)(ii) of the Act. See 8 CFR § 209.2(d).

Note : Regarding Kurdish asylees paroled under Operation Pacific Haven, the INS determined, in consultation with the Centers for Disease Control and Prevention (CDC), that medical examinations performed under Operation Pacific Haven for Kurdish asylees either before arrival or while on Guam are acceptable for purposes of adjustment of status under section 209 of the Act and 8 CFR § 209.2. Kurdish asylees were given copies of these medical reports and should include them with the adjustment application. If the Ku rdish asylee no longer has a copy of the medical report, a new medical exam must be performed by a designated civil surgeon, including the vaccination assessment. In all cases, the adjustment application under 8 CFR § 209.2 submitted by a Kurdish asylee must also include the vaccination sign-off.

(F) Registry Applicants under Section 249 of the Act . Aliens applying for the creation of a record of admission for permanent residence are not required to undergo a medical examination or comply with the vaccination requirements. This is because section 212(a)(1) of the Act is not among the grounds of inadmissibility or ineligibility specified in section 249 of the Act.

(G) North American Indians . American Indians born in Canada who meet the requirements described in the regulations at 8 CFR §§ 289.1 and 289.2 may be regarded as having been lawfully admitted for lawful permanent residence. Because such lawful admission is recorded on Form I-181, and neither an immigrant visa nor an adjustment of status application is required, the applicant is not required to establish compliance with the vaccination requirements. Therefore, officers at ports-of-entry should not consider the vaccination requirement s in determining the eligibility of North American Indians seeking benefits under section 289 of the Act and 8 CFR part 289.

(H) Children of Returning Residents (XA and NA Babies) . This group covers children born abroad either subsequent to the issuance of an immigrant visa to a parent applying for admission while the visa remains valid, or during the temporary visit abroad of a mother who is a national or permanent resident of the United States. Until further notice, continue admitting these two groups of children under the procedures in effect prior to the implementation of IIRIRA (i.e., with no medical or vaccination requirement).

(I) Nonimmigrants . Except as provided in paragraphs (J) and (K), individuals applying for a nonimmigrant visa under any provision of section 101(a)(15) of the Act or for admission to the United States as a nonimmigrant, are not required to comply with section 212(a)(1)(A)(ii) of the Act relating to vaccinations.

(J) Special Considerations for K and V Nonimmigrants . The plain language in section 212(a)(1)(A)(ii) of the Act regarding the vaccination requirements refers to applicants for immigrant visas and for adjustment of status. Applicants for visas under section 101(a)(15)(K) or (V) of the Act are not applicants for immigrant visas at this stage of the process. DOS and USCIS have agreed that the required medical examination for K and V nonimmigrants outside of the United States will include the vaccination assessment described in section 212(a)(1)(A)(ii) of the Ac t. The vaccination assessment will be performed in anticipation of the adjustment of status application, to give the applicants the opportunity to retrieve the records for those vaccinations they have already received, while they are still abroad. Individuals in the United States applying for change of status to V will not be required to undergo a vaccination assessment in conjunction with their medical exam, but civil surgeons are not precluded from advising them about the vaccination requirements in antic ipation of their adjustment of status application.

While some panel physicians may elect to indicate the vaccinations already received on the vaccination supplement, consular officers will not refuse the K or V visa and CBP officers will not refuse admission to a K or V nonimmigrant, solely because all of the vaccination requirements have not been met. When the panel physician's report indicates that the applicant lacks certain required vaccines, consular officers will attach a single-page addendum to Form DS-2053 (Formerly Form OF-157), Medical Examination for Immigrant or Refugee Applicant , and the accompanying worksheets, advising the applicant of the need to comply with the vaccination requirements upon the application for adjustment of status in the United States.

(K) Vaccination Requirements for K and V Nonimmigrants Adjusting Status to That of Lawful Permanent Resident under Section 245 of the Act . In certain instances, K and V nonimmigrants are not required to repeat the original medical examination that was performed to obtain that nonimmigrant classification. See Chapter 23.3(d)(2). When this is the case, only the vaccination sign-off is required. The vaccination sign-off must have been done by a designated civil surgeon. If the applicant obtained a K or V nonimmigrant visa overseas, the medical exam report completed by the panel physician overseas, Form DS-2053 and accompanying worksheets, should already be in the alien’s A-File, if it was surrendered at the port-of-entry with the visa packet. Note that, in completing the vaccination sign-off, the designated civil surgeon may accept the vaccination supplement to Form DS-2053 completed by the panel physician overseas and proof of additional vaccines received following the applicant's admission to the United States. If the applicant was granted a change of status to V in the United States under section 214(o) of the Act, the medical exam report completed by the civil surgeon should be in the A-file created at the time that the change of status was initially granted. The applicant will need to return to the civil surge on for the vaccination sign-off. If, however, the requirements of Chapter 23.3(d)(2) have not been met, a new medical examination is required, including the vaccination assessment specified under section 212(a)(1)(A)(ii) of the Act.

(L) Exceptions for Orphans . On November 12, 1997, the President signed into law Pub. L. 105-73. This bill amended section 212(a)(1)(A)(ii) of the Act by creating section 212(a)(1)(A)(ii)(C) to provide exceptions to the vaccination requirements for internationally adopted children 10 years of age or younger. This exception covers children 10 years of age or younger classified as orphans under section 101(b)(1)(F) who are applying for immigrant visas as immediate relatives under section 201(b) of the Act (IR-3 and-4 visas). In order f or the child to benefit from the exception, the adopting parent(s) must sign an affidavit prior to visa issuance. The adopting parent(s) must affirm that the child will receive the required vaccination within 30 days of admission to the United States or at the earliest time that it is medically appropriate. However, noncompliance with the vaccination requirements following the child's admission to the United States is not a ground for removal under section 237 of the Act.

DOS has developed a standard affidavit form to ensure that adopting parents are aware of the possibility of an exception from the vaccination requirements provided under section 212(a)(1)(A)(ii)(C) of the Act, and of their obligation to ensure that the child is vaccinated following admission. The affidavit must be made under oath or affirmation in the presence of either the consular officer or a notary public, and the completed form must be included with Form OF 157.

When the adoptive or prospective adoptive parent cannot sign the affidavit in good faith because of religious or moral objections to vaccinations, the child will require a waiver under section 212(g)(2)(C) of the Act. The requirements for this waiver are described in Chapter 41.3(b) of this field manual.

U.S. Supreme Court- Aliens, Immigration and Nationality Law

U.S. SUPREME COURT CASES (click on link)

DUI IS NOT A CRIME OF VIOLENCE:
Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

A drunk driving accident is not a "crime of violence" allowing the government to deport a permanent resident, the Supreme Court ruled in Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

The court ruled unanimously in favor of Josue Leocal, a Florida man challenging his deportation to Haiti in 2002 after pleading guilty to a felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a "crime of violence" under the immigration statute because he had caused injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute suggests that the felony offense must require intent in causing harm - not mere negligence as in Leocal's case - before immigrants are subject to the drastic consequence of deportation.

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REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Petitioner, a lawful permanent resident of the United States, pleaded guilty to two counts of driving under the influence of alcohol (DUI) and causing serious bodily injury in an accident, in violation of Florida law. While he was serving his prison sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings pursuant to § 237(a) of the Immigration and Nationality Act (INA), which permits deportation of an alien convicted of "an aggravated felony." INA § 101(a)(43)(F) defines "aggravated felony" to include, inter alia, "a crime of violence [as defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year." Title 18 U.S.C. § 16(a), in turn, defines "crime of violence" as "an offense that has as an element the use . . . of physical force against the person or property of another," and § 16(b) defines it as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." An Immigration Judge and the Board of Immigration Appeals (BIA) ordered petitioner's deportation, and the Eleventh Circuit dismissed his petition for review, relying on its precedent that a conviction under Florida's DUI statute is a crime of violence under 18 U.S.C. § 16.

Held: State DUI offenses such as Florida's, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, are not crimes of violence under 18 U.S.C. § 16. Pp. 4-11.

(a) Section 16 requires this Court to look to the elements and nature of the offense of conviction in determining whether petitioner's conviction falls within its ambit. Florida's DUI statute, like similar statutes in many States, requires proof of causation but not of any mental state; and some other States appear to require only proof that a person acted negligently in operating the vehicle. This Court's analysis begins with § 16's language. See Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501. Particularly when interpreting a statute featuring as elastic a word as "use," the Court construes language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U.S. 223, 229, 124 L. Ed. 2d 138, 113 S. Ct. 2050. Section 16(a)'s critical aspect is that a crime of violence involves the "use . . . of physical force against" another's person or property. That requires active employment. See Bailey, supra, 516 U.S. 137, at 145, 1333 L. Ed. 472, 116 S. Ct. 501. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another by accident. When interpreting a statute, words must be given their "ordinary or natural" meaning, Smith, supra, 508 U.S. 223 at 228, 124 L. Ed. 2d 138, 113 S. Ct. 2050, and § 16(a)'s key phrase most naturally suggests a higher degree of intent than negligent or merely accidental conduct. Petitioner's DUI offense therefore is not a crime of violence under § 16(a). Pp. 4-8.

(b) Nor is it a crime of violence under § 16(b), which sweeps more broadly than § 16(a), but does not thereby encompass all negligent conduct, such as negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The classic example is burglary, which, by nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Thus, § 16(b) contains the same formulation found to be determinative in § 16(a): the use of physical force against another's person or property. Accordingly, § 16(b)'s language must be given an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. Pp. 8-9.

(c) The ordinary meaning of the term "crime of violence," which is what this Court is ultimately determining, combined with § 16's emphasis on the use of physical force against another (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. This construction is reinforced by INA § 101(h), which includes as alternative definitions of "serious criminal offense" a "crime of violence, as defined in [§ 16]," § 101(h)(2), and a DUI-causing-injury offense, § 101(h)(3). Interpreting § 16 to include DUI offenses would leave § 101(h)(3) practically void of significance, in contravention of the rule that effect should be given to every word of a statute whenever possible, see Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251, 121 S. Ct. 2120. Pp. 9-11.

(d) This case does not present the question whether an offense requiring proof of the reckless use of force against another's person or property qualifies as a crime of violence under § 16. P. 11.

Reversed and remanded
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Demore v. Kim: Mandatory Detention Allowed | Custody & No Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)

The US Supreme Court declared that lawful permanent residents with certain criminal convictions can be detained pursuant to INA §236(c) without an individual bond hearing. The Court, however, also held that § 236(e) does not preclude habeas review of challenges to detention under § 236(c) .

The Supreme Court decision in Demore v. Kim applied only to individuals who conceded deportability and explicitly did not address the adequacy of the Matter of Joseph hearing, which allows a person to be released if she or he can demonstrate that the government is "substantially unlikely to prevail" on the charges of removal. To the extent possible, non-citizens should not concede deportability and request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999) http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf

The Immigration Judge may make a determination on whether a lawful permanent resident “is not properly included” in a mandatory detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before or after the conclusion of the underlying removal case. If this threshold bond decision is made after the Immigration Judge’s resolution of the removal case, the Immigration Judge may rely on that underlying merits determination.

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INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers under former Section 212(c)

Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

HTML: http://supct.law.cornell.edu/supct/html/00-767.ZS.html

PDF: http://callyourlawyers.com/pdfcaselaw/St.Cyr_supct.pdf

Continuing Validity of Form I-140 Petition when the alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his or her

08/04/03 Memo from William R. Yates /s/ Janis Sposato HQBCIS

MEMORANDUM FOR SERVICE CENTER DIRECTORS, BCIS REGIONAL DIRECTORS, CIS Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)

The purpose of this memorandum is to provide field offices with guidance on processing Form I-485, Application to Register Permanent Residence or Adjust Status, when the beneficiary of an approved Form I-140, Petition for Immigrant Worker, is eligible to change employers under §106(c) of AC21.

On January 29, 2001, the legacy Immigration and Naturalization Service’s (Service) Office of Field Operations issued a memorandum entitled “Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313.” On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).” On February 28, 2003, Immigration Services Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.” These memoranda remain in effect. On July 31, 2002, the Service published an interim rule allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485. Institution of the concurrent filing process, and other issues relating to revocation of approval of Form I-140 petitions, have resulted in questions on how to process adjustment applications when the alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his or her employment.

A. Approved Form I-140 Visa Petitions and Form I-485 Applications

The AC21 §106(c) states:

A petition under subsection (a)(1)(D) [since re-designated section 204(a)(1)(F) of the Act] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed. Accordingly, guidance in the June 19, 2001, memorandum provides that the labor certification or approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:

(a) A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and

(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made. This policy is still in effect and has not changed as a result of implementation of the concurrent filing process.

If the Form I-140 (“immigrant petition”) has been approved and the Form I-485 (“adjustment application”) has been filed and remained unadjudicated for 180 days or more (as measured from the Form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation.1 If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment. B. Provisions in Cases of Revocation of the Approved Form I-140 1AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied.

As discussed above, if an alien is the beneficiary of an approved Form I-140 and is also the beneficiary of a Form I-485 that has been pending 180 days or longer, then the approved Form I-140 remains valid with respect to a new offer of employment under the flexibility provisions of §106(c) of AC21.

Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer of employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. If at any time the BCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act. Questions regarding this memorandum may be directed via e-mail through appropriate channels to Joe Holliday at Service Center Operations or to Mari Johnson in Program and Regulation Development. Accordingly, the Adjudicator’s Field Manual (AFM) is revised as follows:

1. Chapter 20.2 of the AFM is revised by adding a new paragraph (c) to read as follows:

20.2 Petition Validity.

(c) Validity after Revocation or Withdrawal. Pursuant to the provisions of section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:

A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and

The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

If the Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more (as measured from the form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation.

If the Form I-485 has been pending for less than 180 days, then the approved Form I- 140 shall not remain valid with respect to a new offer of employment.

Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer of employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. If at any time the BCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.

2. The AFM Transmittal Memoranda button is revised by adding the following entry: Chapter 20.2(c) Provides guidance on the validity of immigrant petitions under section 106(c) of AC21 (Public Law 106-313) 08/04/03

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Conviction under Immigration law includes Illinois sentence for "1410 probation" (Gill v. Ashcroft, (7th Cir.) )

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior Illinois state court conviction for possession of cocaine that was ultimately dismissed87 upon alien's successful completion of probation period; under 8 USC §1101(a)(48)(A), alien's state court proceeding qualified as "conviction" that precluded alien from applying for discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f) provides that, if a first offender completes this probation without incident, “the court shall discharge the person and dismiss the proceedings against him.” The statute continues: A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that “410 probation” was a “conviction” under the text of §1101(a)(48)(A). The 7th Circuit declined to follow the holding of Lujan- Armendariz, "which elevated an abandoned administrative practice over a statutory text." 222 F.3d 728 (9th Cir. 2000).

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such as “410 probation” that impose some restraint on liberty but withhold formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for restoring the person’s civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board held that the criteria of §1101(a)(48)(A) apply to all offenders, no matter how they would have been treated if they had been charged in federal court. The 7th Circuit adopted the Board’s "straightforward" application of §1101(a)(48)(A), which abolished, for purposes of immigration law, any distinction between the treatment of deferred dispositions in first and successive drug-possession offenses. The Board has declined to acquiesce in Lujan-Armendariz and will not apply it outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of conviction under federal immigration law, not the Illinois First Offender standard, controls. The 7th Circuit determined that an administrative appellate tribunal, namely, the Board of Immigration Appeals, had the authority to conclude that its uniform interpretation of what constitutes a "conviction" under federal law was dispositive, regardless of what states may say to the contrary (Matter of Roldan , 22 I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v. Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In the latter decision, the Circuit Court of Appeals found that state equivalents to the Federal First Offender Act (like 410 probation) in regard to first time simple drug possession charges if expunged, may not be used as convictions under the Immigration and Nationality Act to establish inadmissibility or deportability. The Ninth Circuit also extended this rule to foreign equivalents to the First Offender Act (Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th Cir. 2001). Unfortunately, the Ninth Circuit's decision does not apply in Illinois, Indiana or Wisconsin. And, there is more. Under certain circumstances, a misdemeanor conviction under state law may amount to what is known as an "aggravated felony" (8 U.S.C. 1227(a)(2)(A)(iii) under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001) 242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this means is that certain misdemeanor convictions, like the First Offender conviction, can result in the removal from the United States of a lawful permanent resident or undocumented alien. (For example, Criminal Sexual Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an aggravated felony under federal immigration law. Since aliens who have committed aggravated felonies are unable as a matter of law to obtain cancellation of their removal hearings upon a conviction for such a crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003:
Download: http://callyourlawyers.com/pdfcaselaw/gil.pdf

Was the Marriage Entered into for Immigration Purposes? Is the marraige "Bona fide" for immigration purposes?

In order to be granted permanent residency, your spouse's relationship with you must be established and your spouse must be admissible to the United States under the immigration law. Also, the marriage must be bona fide, not merely a sham to get the non US citizen spouse a green card. The USCIS takes fraudulent marriage seriously and you will be asked to provide supporting documents to show that the marriage is valid.

Over the past two decades, Congress and the CIS have grown increasingly suspicious of marriages. Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against federal immigration law to consider immigration in deciding to get married. Considering immigration benefits will only be a problem if those were the ONLY reason to marry. So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status. Despite this, and despite the fact that it can be impossible to determine why people marry, the CIS makes this determination every day. Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying. Also, if the couple does not live together, the CIS will be very suspicious, even more so if they have never lived together. Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The CIS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the CIS. In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide. The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation. Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

The CIS has discretion to suspect and then accordingly to investigate a marriage which may bring immigration benefits to the aliens. If the CIS has reasons to suspect that the marriage is a "sham marriage", the CIS officers have the authority to investigate. Usually, the CIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. Also, the CIS officers may arrange interviews with the couple at their residence or at local CIS offices. _________________________________

Whether an alien qualifies as a spouse depends upon three factors:

(1) the validity of the marriage under the law of the jurisdiction where it was performed;

(2) whether the marriage was entered into in order to confer an immigration benefit on the alien (a sham marriage); and

(3) the current status of the marriage.

The only legally-sanctioned marriage defined by the INA to be invalid for immigration purposes is one in which the two parties were not physically in the presence of each other at the time of the marriage ceremony, unless the marriage was subsequently consummated. Other marriages may be invalid at their inception because one of the parties lacked legal capacity or because the marriage is against the law of the jurisdiction.

The most common impediment to a valid marriage, however, is the objection that one of the parties lacked capacity to marry because of the invalidity of a prior divorce. Any prior divorce must meet the legal standards of the jurisdiction where the divorce decree is entered, and must be recognized in the jurisdiction where the subsequent marriage occurs. While all U.S. divorces are considered valid determining the validity of divorces in foreign jurisdictions is often a complicated task. This difficulty can be compounded when the foreign jurisdiction recognizes "custom-ary" divorces and marriages; in such instances, it is necessary to study the actual facts of the divorce or marriage proce-dure or ceremony to determine whether the proper ritual was followed.

Even if a marriage is valid at its inception, it may be considered sham for immigration purposes if it was entered into to confer an immigration benefit on the alien. The general authority to investigate the bona fides of a marriage rela-tionship for purposes of conferring an immigration benefit appears in section 204(b) of the INA. The basic test in all cases will be whether the parties entered into the marriage sharing the intention to establish a life together. Thus, the fact that the couple is presently divorced or separated does not necessarily negate the validity of the marriage for immi-gration purposes, although such circumstances may raise questions as to the bona fides of the marriage. In addition to this general investigatory authority, section 204(c) of the INA bars the approval of a visa petition for a person who pre-viously obtained, or attempted or conspired to obtain, immigration benefits by reason of a marriage determined to have been entered into for purpose of evading the immigration laws.

Several other provisions added by the Immigration Marriage Fraud Amendments of 1986 (IMFA) are also designed to combat sham marriages.

First, the INS cannot approve the spousal second preference petition of permanent residents who have been accorded their status based on a prior marriage unless:

(1) a period of five years has elapsed after the alien acquired the permanent resident status;

(2) the alien establishes through clear and convincing evidence that the prior marriage was not entered into for purposes of evading the immigration laws; or

(3) the prior marriage was terminated through the death of the petitioner's spouse.

Second, an immigrant visa petition cannot be approved for an alien who has married after commencement of deportation, exclusion, or removal proceedings until the alien has resided outside of the United States for two years after the marriage. The alien can obtain a "bona fide marriage" waiver of the foreign residence requirement if the alien establishes by clear and convincing evidence that:

(1) the marriage was entered in good faith and in accordance with the laws of the place where the marriage took place;

(2) the marriage was not entered into for the purpose of procuring the alien's entry as an immigrant; and

(3) no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparing petitions) for the filing of a petition on behalf of the alien.

Finally, under IMFA, aliens who obtain an immigration benefit on the basis of a marriage entered into within two years of the time the benefit is conferred will be granted conditional resident status for a period of two years. Before this period ends, the couple must file a joint petition to remove the conditional basis of the alien's residence; failure to do so results in automatic termination of the alien's resident status. When the conditional resident is unable or unwilling to obtain the cooperation of the citizen or resident spouse or parent, he or she will be required to file an application for waiver of the joint petition requirement. There generally is no requirement that a marriage currently be viable in order for it to be the basis for conferring immigration benefits. In most cases, as long as the couple entered into a bona fide marriage and have neither divorced nor legally separated pursuant to a formal written instrument, they will be considered spouses for immigration purposes.

(1) In the absence of adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Interim Decision 2750 (BIA 1980), clarified and reaffirmed. Matter of Cavazos, 1980 BIA LEXIS 2; 17 I. & N. Dec. 215

(2) A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the immigration laws does not enable an alien spouse to obtain immigration benefits.

(3) Where the parties enter into a valid marriage, and there is nothing to show that they have since obtained a legal separation or dissolution of that marriage, a visa petition filed on behalf of the alien spouse should not be denied solely because the parties are not residing together.

(4) Although the separation of spouses in and of itself is not a valid basis for denial of a visa petition based upon a determination that the marriage is not viable, a separation is a relevant factor in determining the parties' intent at the time of their marriage, i.e., whether the marriage is a sham. (Matter of McKee, 1980 BIA LEXIS 17; 17 I. & N. Dec. 332)

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The following is a list of some of the typical questions asked during an adjustment of status interview. During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

MARRIAGE INTERVIEW-SAMPLE QUESTIONS

During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

Name and address.

Name and Date of Birth of Spouse.

When and where did you meet your spouse?

Describe this 1st meeting.

Did you make arrangements to meet again?

Did you exchange phone numbers?

When did you meet next?

Where were you living at the time? Where was your spouse living?

When did you decide to get married? Where were you at the time?

Did you live together before marriage?

When and where did you get married? How did you and your spouse get to the church, courthouse, etc.?

Who were the witnesses to the ceremony?

Did you exchange wedding rings?

Where had you purchased these rings? Did you and your spouse purchase them together?

Did you have a reception after the ceremony?

Where was it held?

Do you have any photos of the ceremony and /or reception?

Describe the reception.

Did any of your, and your spouse's, family members attend? If so, who?

Did you go on a honeymoon? If so, when and where?

If you did not have a reception, what did you do after the wedding ceremony?

Where did you live after the wedding?

Describe the place where you lived right after the marriage. Number of bedrooms and bathrooms; furnishings; color of walls, floor coverings, appliances, etc; type of air conditioning, heating, etc; # of telephones, televisions, etc. Do you have cable television?

Where did you get the furniture? Was it already there, did you buy it, was it a gift, or did it come from your, or your spouse's, previous residence?

If brought to the house or apartment, describe how it was transported.

Describe your bedroom. Where do you keep your clothes? Where does your spouse keep his or her clothes? Where are the bathroom towels kept? Where do you keep the dirty clothes?

Where is the garbage kept in the kitchen?

On what day of the week is the garbage picked up?

Where do you shop for groceries? Do you go together with your spouse? How do you get there?

Where do you work? What days of the week do you work?

What hours do you work? What is your salary?

What is your telephone # at work?

When was the last vacation you had from work?

Did you and your spouse go anywhere together at that time?

When was the last vacation you and your spouse took together?

Where did you go? How did you get there? Describe it.

Where does your spouse work? What days of the week? What hours? What is the salary, if you know?

What is your spouse's telephone # at work?

When was the last time your spouse got a vacation from work?

Do you know your spouse's family members? If so, which ones? If your spouse has children from a previous marriage, their names, ages, where they live, and where they go to school, if applicable.

Where do you live now? (If different from where you lived right after the marriage, then go over the same questions as above). How much is the rent? When is it paid? How do you pay it?

Do you have a bank account together? Where? What kind of account? (Checking, savings).

Are both of you listed on the account? (Do you have a bank letter, cancelled checks, etc.?)

Did you file a joint tax return this year? Do you have a copy with you?

Do you own any property together? What property? Did you bring copies of the documents with you?

What kind of automobile do you and your spouse have? Describe them.

Do you have an Insurance policy listing your spouse as the beneficiary? If so, do you have a copy?

Have you taken any trips or vacations together? Do you have photos from these trips?

Do you have any utility bills, or receipts from items you have purchased together?

What other documentation do you have to show that you are living together as husband and wife?

Do you have any pets? What kind, what are their names, and describe them?

What did you do for Christmas, New Year's, your anniversary, or you or your spouse's last birthday? Did you exchange gifts? If so, what kind of gift?

Did you or your spouse go to work yesterday? If so, at what time did you and/or your spouse leave the house and return?

Who cooks the meals at the house?

What is your spouse's favorite food? What is your favorite food?

Does your spouse drink coffee? If so, does he or she use cream and/or sugar?

Did you eat dinner together last night? Did anyone else have dinner with you? What did you have?

What time was dinner served? Who cooked it?

Did you watch TV after dinner? What shows did you watch?

At what time did you go to bed? Who went to bed first?

Did you have the air conditioning or heater on?

Who woke up first this morning? Did an alarm clock go off?

Did you or your spouse take a shower?

Did you come to the interview together? Who drove?

Did you have breakfast? Where and what did you eat?

Please remember that the number and types of questions that can be asked is almost limitless. Therefore, you and your spouse should review your entire lives together prior to attending the immigration interview. Even married couples living together for many years sometimes have difficulties remembering all of the facts of their relationship. Be prepared and take original documents with you. Then you will have no problem passing the interview and obtaining permanent residence in the United States.

Domestic Battery Conviction , Illinois and Removal, Deportation from the United States

Domestic violence and related convictions will cause immigration problems not only for individuals that have a pending application for permanent resident status (green card) with the local CIS office but also for individuals that are already permanent residents or those who seek to apply for United States citizenship through naturalization.

Several years ago, Congress amended the Immigration law to include a conviction for domestic violence as ground of deportability. A felony conviction for domestic violence can serve as a basis for deportation even if no jail time was imposed or actually served. 8 U.S.C. § 1227(a)(2)(E)(i). A misdemeanor domestic violence conviction is not necessarily a "crime of violence" for deportation purposes, unless the "offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another."

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003, 2003 U.S. App. LEXIS 24051

Sec. 12-3.2 Domestic Battery (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)

(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;

(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

(b) Sentence. Domestic battery is a Class A Misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery

Sec. 12-3.3 Aggravated domestic battery (720 ILCS 5/12-3.3)

(a) A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery.

(b) Sentence. Aggravated domestic battery is a Class 2 felony. Any order of probation or conditional discharge entered following a conviction for an offense under this Section must include, in addition to any other condition of probation or conditional discharge, a condition that the offender serve a mandatory term of imprisonment of not less than 60 consecutive days. A person convicted of a second or subsequent violation of this Section must be sentenced to a mandatory term of imprisonment of not less than 3 years and not more than 7 years or an extended term of imprisonment of not less than 7 years and not more than 14 years. (Source: P.A. 91445, eff. 1‑1‑00.)

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003. http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

REMOVABLE OFFENSES

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Whether an aggravated felony or crime of moral turpitude, it is important to note that it is the “conviction” that counts. Dismissals, acquittals, adjudications (juvenile convictions) or no-paper charges do not count for immigration purposes. However, pleading guilty or even admitting to the facts supporting the elements of the offense may be considered as a conviction, even if the crimminal law does not recognize the conviction until the time a sentence has been entered (Judgment and Commitment Order). Sentences containing fines or probation constitute a conviction for immigration purposes. A deferred sentence counts only when there has been an admission of the facts beforehand. Convictions that are later set aside or expunged count as convictions if there has been an admission of the facts. In determining the length of the sentence, immigration authorities look to the term of the actual sentence, and not to the time that the offender is exposed to by statute.

Probationary sentences will trigger immigration consequenses if a term of incarceration is imposed but suspended. Probation will not trigger immigration consequences if the judge opts not to impose a sentence at all (known as an imposition of the sentence suspended, or an ISS sentence). In the case of an ISS sentence, if the candidate successfully completes probation, there are no immigration consequences because an actual sentence was never imposed. However, immigration consequences are triggered if the offender's probation is ever revoked, as the court will impose a sentence at the time of revocation. Thus, for immigration purposes it always best to request an ISS sentence for a probationary candidate.

Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime involving "moral turpitude" committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.

Felony aggravated domestic battery is a "crime involving moral turpitude" (CIMT), an aggravated felony (only if one year of jail or more is actually imposed), and constitutes a domestic violence ground for deportation.

A felony aggravated battery conviction would be enough for ICE to charge as CIMT within 10 years of non citizen obtaining green card and/or as Agg. Felon/crime of violence if jail sentence imposed was more than one year.

Aggravated Felony: Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable. (worst provision; no bail or relief) (f) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year; A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a) (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

Domestic Violence

8 U.S.C. § 1227(a)(2)(E)(i): Any alien admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2)(E)(i) Any alien who at any time after admission is convicted of a crime of domestic violence . . . . For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) . . . by any individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

"Crime of Violence" With respect to the first prong of the § 1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a "crime of violence" as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a)

The BIA states that an offense does not fall within the definition of a "crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i) unless (1) the crime is a "crime of violence" as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a "protected person" within the meaning of § 1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the Immigration Judge/BIA would hold that (1) a felony conviction constituted a "crime of violence" because the crime, as defined by Illinois case law, requires an intentional touching that caused bodily harm and was non-consensual and, therefore, involves a substantial risk that physical force may be used, and (2) victim /spouse was a "protected person" under Illinois criminal and civil law.

[DOMESTIC VIOLENCE: The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude Matter of AJAMI, Interim Decision #3405, 1999)

A single conviction for misdemeanor domestic battery is not an Aggravated felony- as a crime of violence, and is not necessarily CIMT, unless non citizen has two or more unrelated convictions for CIMT.

A misdemeanor domestic battery conviction- regardless of jail time imposed or served by non citizen –does not necessarily fall within domestic violence Ground of removability. Flores V. Ashcroft

A simple misdemeanor battery (not domestic battery) conviction, and jail sentence of up to 364 days, charged as "offensive touching" (not bodily harm), could be argued does not constitute CIMT and clearly does not constitute a domestic violence or aggravated felony grounds for removal. ________________________________________________________________________

An Immigration Judge in Arizona recently terminated a deportation proceeding based on domestic violence-related misdemeanor convictions after concluding that the convictions were not “crimes of violence” under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an alien deportable. This list, increased by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, includes convictions for domestic violence.

An alien charged with being deportable in an Arizona case was convicted of “misdemeanor assault / domestic violence”and of “misdemeanor Disorderly conduct / domestic violence”under state law. The Immigration and Naturalization Service (INS) then sought his deportation, charging that the defendant was deportable under the domestic violence provision of INA §237(a)(2)(E)(i). This section defines a “crime of domestic violence”as any “crime of violence”committed against a person in one of several listed relationships with the perpetrator, e.g., a current or former spouse.

“Crime of violence,”in turn, is defined by another federal provision (18 U.S.C. §16): (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent in the Arizona case argued that he could not be deported under the INA domestic violence ground for deportation because neither of his misdemeanor convictions met the federal statute’s definition of “crime of violence.”According to the Board of Immigration Appeals, the federal definition the classification described in the INA’s deportation provisions supersedes the state law definition to avoid inconsistent results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of the federal definition of “crime of violence”did not apply to his case because the offenses to which the defendant pleaded guilty were Misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because the domestic violence provision required the “use, attempted use, or threatened use of physical force”directed against a statutorily protected victim - elements not required for either of his misdemeanor State convictions.

Essentially, the Arizona domestic violence laws under which the respondent was convicted were broader in scope than the INA definition, because they could have allowed the prosecution of acts that did not involve attempted physical force or disorderly conduct directed to a victim. Evidence of misdemeanor domestic violence convictions under state law alone did not clearly and convincingly demonstrate that the respondent had actually committed the federally-defined domestic violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the defendant actually committed domestic violence as defined by the INA (that is, he used or threatened physical force) in the incident for which he had been convicted under Arizona law. The judge thereafter terminated the defendant’s deportation proceedings and ordered immediate release from INS custody.

Misdemeanor Domestic Battery not a Crime of Violence, Flores v. Ashcroft, Seventh Circuit, November 2003

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051

Download PDF case

PROCEDURAL POSTURE: Petitioner sought review of an order of the Board of Immigration Appeals (BIA) which ordered petitioner removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C.S. § 1227(a)(2)(E), because he committed a "crime of domestic violence" under 18 U.S.C.S. § 16 and had a spouse or other domestic partner as a victim.

Petitioner pleaded guilty in Indiana to battery, a misdemeanor, defined as any touching in a rude, insolent, or angry manner. Ind. Code § 35--42--2--1. The BIA determined that this offense qualified as a "crime of domestic violence" under 18 U.S.C.S. § 16 and ordered petitioner removed under § 237(a)(2)(E). Upon review, the court of appeals found that the issue was how the offense created by Ind. Code § 35--42--2--1 should be classified for purposes of § 237(a)(2)(E). Although the police report shows that petitioner attacked and beat his wife, the court of appeals reasoned that § 16 provided that the statute's elements rather than the petitioner's real activities were dispositive in misdemeanor cases such that petitioner's conviction could not properly be classified as a crime of violence. Specifically, the court of appeals found that the elements of petitioner's battery conviction could not properly be viewed as a "crime of violence" under § 16 involving a spouse or other domestic partner as a victim, and thus concluded that petitioner was not removable under § 237(a)(2)(E).

The order of removal was vacated, and the matter is remanded to the BIA for further proceedings. 1(a)(1)(A).

________________

JOSE ERNESTO FLORES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3160

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2003 U.S. App. LEXIS 24051

September 18, 2003, Argued November 26, 2003, Decided

PRIOR HISTORY: [*1] Petition for Review of an Order of the Board of Immigration Appeals.

DISPOSITION: Vacated and remanded.

JUDGES: Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges. EVANS, Circuit Judge, concurring.

OPINIONBY: EASTERBROOK

OPINION:

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a "crime of domestic violence"- which means any offense that is a "crime of violence" under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d 392, 121 S. Ct. 2268 (2001).


Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir. 2001). The immigration judge's failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).) By the time the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier [*3] could matter only to the extent it affected the determination that he committed a crime of domestic battery- and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounseled proceedings: that (a) he is the "Jose Ernesto Flores " who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind. Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that "The term 'crime of violence' means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [*4] " Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of "physical force against the person ...of another". Indiana law provides: "(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person". Ind. Code § 35-42-2-1. Flores pleaded guilty to this "Class A" version of the misdemeanor offense. The parties treat bodily injury as an "element" because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the "use of physical force" under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a "touch"- and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane [*5] qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person's glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana's courts reached this conclusion because "serious" bodily injury makes the offense a Class C felony. See Ind. Code § 35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe [*6] any of this as "violence."

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty. The problem with that approach lies in the language of § 16(a), which specifies that the offense of conviction must have "as an element" the use or threatened use of physical force. Section 16 adopts a charge-offense rather than a real-offense approach, as is common to recidivist statutes. See, e. g., Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). As we explained in United States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even in charge-offense systems to rely [*7] on some aspects of the defendant's actual behavior, in order to know what he has been convicted of: when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition. See also United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Howze was itself an example of this. State law defined, as a single felony, theft from either a living person or an embalmed body. The former is (we held) a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii) and the latter not, because only the former poses a risk of a violent encounter between thief and victim. So in Howze we examined the charging papers to learn that the victim had been alive. Indiana's battery statute, by contrast, separates into distinct subsections the different ways to commit the offense. Particularly forceful touchings, or those that cause grave injuries, come under subsections other than Ind. Code § 35-42-2-1(a)(1)(A). Thus it is possible to focus on "the elements" of that crime, as § 16(a) requires, without encountering any ambiguity, and thus without [*8] looking outside the statutory definition. See also Bazan-Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001) (drunk driving is not a crime of violence under the elements approach of § 16, even if injury or death ensues).

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the "domestic" ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one's wife or a drinking buddy injured in a barroom. The injury to a "domestic partner" is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores's admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.

According to the immigration officials, we should grant Chevron deference to the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A) [*9] satisfies the federal definition. An earlier decision reached this conclusion, after extended analysis, with respect to a Connecticut law similar to Ind. Code § 35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N. Dec. 491 (B. I.A. 2002), and in Flores's case the Board relied on Martin. Yet Chevron deference depends on delegation, see United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001), and § 16(a) does not delegate any power to the immigration bureaucracy (formerly the Immigration and Naturalization Service, now the Bureau of Citizenship and Immigration Services), or to the Board of Immigration Appeals. Section 16 is a criminal statute, and just as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch. Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 108 L. Ed. 2d 585, 110 S. Ct. 1384 (1990). One [*10] law has one meaning, and a given state conviction a single classification, whether the subject arises in removal or in a recidivist prosecution in federal court. Although the agency's interpretation in Martin may have persuasive force, and we must give it careful consideration, it has no binding effect along Chevron's lines.

Martin is not persuasive. Besides starting with legislative history rather than the text of § 16- the Board saw great significance in a footnote to the Senate Report, though this footnote did not purport to disambiguate any statutory language and thus lacks weight on the Supreme Court's view of legislative history's significance- the Board made two logical errors. It relied on decisions such as United States v. Nason, 269 F.3d 10 (1st Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold that state laws penalizing battery with intent to injure are crimes of violence under § 16 (or similar statutes, such as § 924(e)(2)). The Board concluded that this approach is equally applicable to laws such as Ind. Code § 35-42-2-1(a) (1)(A) [*11] . The first error is equating intent to cause injury (an element of the state laws at issue in those decisions) with any injury that happens to occur. It may well be that acts designed to injure deserve the appellation "violent" because the intent makes an actual injury more likely; it does not follow that accidental hurts should be treated the same way. Indiana's battery law does not make intent to injure an element of the offense; intent to touch must be established, but not intent to injure. The Board's second error was failure to appreciate the difference between felony and misdemeanor convictions. When the prior offense is a felony, then any criminal conduct that involves a "substantial risk" of physical force may be classified as a crime of violence under § 16(b) or § 924(e)(2)(B)(ii). (Howze involved a prior felony, which is why we looked to the risk of an altercation breaking out between thief and victim.) But when the conviction is for a misdemeanor, then physical force must be an element under § 16(a) or § 924(e)(2) (B)(i).

Section 16(a) refers to the "use of physical force". Every battery entails a touch, and it is impossible to touch someone without applying [*12] some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose [*13] that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature- the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise "physical force against" and "physical contact with" would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line ("how many newtons makes a touching violent?") but a qualitative one. An offensive touching is on the "contact" side of this line, a punch on the "force" side; and even though we know that Flores's acts were on the "force" side of this legal line, the elements of his offense are on the [*14] "contact" side. Because § 16(a) tells us that the elements rather than the real activities are dispositive in misdemeanor cases, this conviction cannot properly be classified as a crime of violence, and the basis for Flores's removal has been knocked out- along with any obstacle to our jurisdiction.

The order of removal is vacated, and the matter is remanded to the Board.

CONCURBY: EVANS

CONCUR: EVANS, Circuit Judge, concurring. Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense. For one thing, people don't get charged criminally for expending a newton of force against victims. Flores actually beat his wife- after violating a restraining order based on at least one prior beating- and got a one-year prison sentence for doing so.

If it is permissible to look to Flores' "real conduct" to determine if the person he beat was his wife rather than some stranger, why does it not make perfectly good sense to allow an immigration judge to look at what he really did in other respects as well, rather [*15] than restrict the judge to a cramped glance at the "elements" of a cold statute? The more information upon which the judge acts, the better. A common-sense review here should lead one to conclude that Flores committed a "crime of domestic violence." Simply put, by any commonly understood meaning of that term, that's exactly what he did, and that should be the end of the story. We, and the IJ as well in this case, should be able to look at what really happened. We recently observed that critics of our system of law often see it as "not tethered very closely to common sense." United States v. Cranley, 2003 U.S. App. LEXIS 23573, (2003 WL 22718171, decided November 19, 2003). This case is a good example of why that observation hits the nail on the head. Nevertheless, Judge Easterbrook is correct in applying the law so I join his persuasive (as usual) and colorful- snowballs, spitballs, and paper airplanes et al.- opinion. However, I do not applaud the result we reach. And one final point: Whether doing what Flores actually did should cause him to be removed from the country is a question we are without jurisdiction to answer. For better or worse, that's a matter for the executive branch as [*16] it attempts to implement the will of Congress.

http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

Criminal Penalties for Marriage Fraud -- 8 U.S.C. § 1325(c) and 18 U.S.C. § 1546

Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. § 1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325 by adding § 1325(c), which provides a penalty of five years imprisonment and a $250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." Under 8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens, including spouses, who are otherwise qualified for admission as immigrants, must be admitted as such, without regard to other, ordinary numerical limitations.

The typical fact pattern in marriage fraud cases is that a U.S. citizen and an alien get married. They fulfill all state law requirements such as medical tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the alien in order to entitle the alien to obtain status as a permanent resident of the United States; the parties do not intend to live together as man and wife. A legal issue arises where the parties tell the INS they are married, and they subjectively believe they are telling the truth because they have complied with state marriage requirements. The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded INS. See Lutwak v. United States, 344 U.S. 604 (1953). Lutwak was followed in United States v. Yum, 776 F.2d 490 (4th Cir. 1985); Johl v. United States, 370 F.2d 174 (9th Cir.1966), and Chin Bick Wah v. United States, 245 F.2d 274 (9th Cir.), cert. denied, 355 U.S. 870 (1957). But see, United States v. Lozano, 511 F.2d 1 (7th Cir.), cert. denied, 423 U.S. 850 (1975); United States v. Diogo, 320 F.2d 898 (2d Cir. 1963). But cf, United States v. Sarantos, 455 F.2d 877 (2d Cir. 1972).

There have been situations where a bona fide marriage turns sour but the alien induces the U.S. citizen spouse to maintain the marriage as a ruse only as long as necessary for the alien to obtain status as a permanent resident alien. There is a line of cases holding that the viability of the marriage, if initially valid, is not a proper concern of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. § 1186a, were designed, inter alia, to eliminate the Qaisi type loophole by establishing a two-year conditional status for alien spouses seeking permanent resident status, and requiring that an actual family unit still remain in existence at the end of the two year period.