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9 FAM 42.

32(D)(2)
NOTES
(CT:VISA-2042; 10-16-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(D)(2) N1 TWO-STEP ACQUISITION
OF STATUS
(CT:VISA-1440; 06-06-2010)
As a result of the Immigration Act of 1990, this class, like most other special
immigrant classes described in INA 101(a)(27) (8 U.S.C. 1101(a)(27)), will now
require classification under employment-based fourth preference. Unlike the other
such classes, however, the acquisition of special immigrant status under INA
101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)) and fourth preference classification will
require two sequential steps, prior to visa issuance rather than the one-step
process associated with other categories.


9 FAM 42.32(D)(2) N2 STEP ONE - STATUS AS
SPECIAL IMMIGRANT

9 FAM 42.32(d)(2) N2.1 Principal Officers
Recommendation
(CT:VISA-1440; 06-06-2010)
The first step is acquiring special immigrant status. The basic statutory
requirements for special immigrant status under INA 101(a)(27)(D) (8 U.S.C.
1101(a)(27)(D)) are set forth in 9 FAM 42.32(d)(2) Related Statutory Provisions
and elaborated in 9 FAM 42.32(d)(2) Notes. It is most essential that the principal
officer recommend the granting of special immigrant status to an employee or
former employee in exceptional circumstances and that the Secretary of State find
it in the national interest to approve the recommendation. There is no specified
form for such recommendation but the recommendation must include the
elements itemized in 9 FAM 42.32(d)(2) PN2.2.


9 FAM 42.32(d)(2) N2.2 Supporting Evidence
(CT:VISA-906; 09-19-2007)
We, (CA/VO/L/A), must determine each case upon its individual merits.
Consequently, the post must identify and document specific circumstances of an
aliens case that establish entitlement to status. The post shall submit supporting
documentation to ensure that we have sufficient information on which to base a
decision. In determining whether an alien meets the "exceptional circumstances"
requirement, we use the standards cited in 9 FAM 42.32(d)(2) N6.5. The post
must submit evidence that clearly relates to the factors cited in the note, and
should avoid general narrative descriptions of the alien's service history.

9 FAM 42.32(d)(2) N2.3 Department Decision
(CT:VISA-906; 09-19-2007)
If the evidence fulfills the requirements of the law and we determine that the
granting of special immigrant status is in the national interest, we will notify the
post of the approval of the recommendation.


9 FAM 42.32(D)(2) N3 STEP TWO -
CLASSIFICATION UNDER INA 203(B)(4)
(CT:VISA-906; 09-19-2007)
The second step is acquiring status under INA 203(b)(4) (8 U.S.C. 1153(b)(4)).
Classification as an employment-based fourth preference immigrant requires the
filing of a petition to accord such status. Unlike aliens in the other special
immigrant classes, whose petitions must be filed with Department of Homeland
Security (DHS), U.S. Government employee/retiree special immigrants, under INA
101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)), must file the Form DS-1884, Petition to
Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former
Employee of the U.S. Government Abroad, petitions at a consular office (see 9
FAM 42.32(d)(2). The applicant may not file such a petition, however, until he or
she has been notified that the Secretary of State has approved special immigrant
status for them. (See 9 FAM 42.32(d)(2) PN5.)


9 FAM 42.32(D)(2) N4 DETERMINING U.S.
GOVERNMENT SERVICE ABROAD


9 FAM 42.32(d)(2) N4.1 Defining Employee

9 FAM 42.32(d)(2) N4.1-1 General
(CT:VISA-2015; 08-12-2013)
To qualify as a special immigrant U.S. Government employee, the alien must
generally be hired under:
(1) A direct-hire appointment (Section 303 of the Foreign Service Act, 22
U.S.C. 3943; 5 CFR 8.3);
(2) A Department of State personal services agreement (PSA) or personal
services contract (PSC) authorities (22 U.S.C. 2669(c) and (n)); or
(3) An employing agencys specific PSC or PSA authority, if that agency
recognizes individuals hired under its authority as employees. (See 3 FAM
7000.) An alien who is the employee of and hired through a foreign
government may also qualify for special immigrant status, provided that
the alien is or was in a bona fide employer-employee relationship with a
U.S. Government department or agency. (See 9 FAM 42.32(d)(2) N4.4
paragraph c).

9 FAM 42.32(d)(2) N4.1-2 Employee Service in Other Agencies
(CT:VISA-906; 09-19-2007)
If part of an employee's service has been for a department or agency of the U.S.
Government other than the Department of State, this service must be established
from the official records of the agency.

9 FAM 42.32(d)(2) N4.1-3 Peace Corps Personal Services
Contract (PSC)
(CT:VISA-2015; 08-12-2013)
As of November 21, 2011, the date that the Kate Puzey Peace Corps Volunteer
Protection Act of 2011, Public Law 112-57, was enacted, Peace Corps PSC
employees are considered U.S. Government employees for purposes of SE-1
special immigrant status. Time worked as a Peace Corps PSC prior to November
21, 2011 does not count toward such status.

9 FAM 42.32(d)(2) N4.2 U.S. Armed Forces Service
(TL:VISA-3; 08-30-1987)
An alien serving in the U.S. Armed Forces abroad is considered to be an employee
of the U.S. Government abroad.


9 FAM 42.32(d)(2) N4.3 Service with Philippines
Scouts
(TL:VISA-3; 08-30-1987)
Service with the Philippines Scouts prior to July 4, 1946, is considered to be
service in the U.S. Armed Forces.

9 FAM 42.32(d)(2) N4.4 Employment as or with
Private Contractor; Foreign Government Employees
(CT:VISA-906; 09-19-2007)
a. Personal Services Agreement or Contract. Employees under a personal services
agreement or personal services contract with the U.S. Government qualify as
U.S. Government employees. The distinguishing feature of a personal services
contract is that the employee contracts directly with an agency or department
of the U.S. Government as opposed to being hired by and paid through a
contractor whose job is to provide a service or supply a specified number of
employees to a U.S. agency or department. Therefore, if an employee is hired
by and paid through a contractor he or she does not generally qualify for
special immigrant status. If employed directly by the U.S. Government, the
applicant would qualify for a special immigrant "SE-1" recommendation.
b. Purchase Orders. The Department makes no distinction between those persons
hired under purchase orders and those persons employed under personal
services contracts. Both must be paid by U.S. Government funds, and not paid
indirectly by a company to perform services for the U.S. Government.
Employees hired by purchase order or personal services contracts must meet
the requirements for special service, high quality of job performance,
exceptional circumstances of employment, and intent to resign and immigrate
to the United States within one year of special immigrant approval.
c. Employee of Foreign Government. Where a foreign government requires that it
or one of its agencies be the technical employer of some or all of its nationals
who work for the U.S. Government in that country, an alien may qualify for
special immigrant status, provided that the alien was in a bona fide employer-
employee relationship with a U.S. Government department or agency. In
assessing whether an employer-employee relationship existed, factors such as
the following will be considered: the department or agencys right to control
the manner and means by which the alien did the work; the source of the
equipment and other materials needed for the alien to accomplish the work; the
location of the work; the duration of the relationship between the alien and the
department or agency; whether the department had the right to assign
additional projects to the alien; the extent of the department or agencys
discretion over when and how long the alien worked; the method of payment;
and whether the work was part of the regular work of the department or


agency.

9 FAM 42.32(d)(2) N4.5 Employees of U.S. Employee
Recreation Associations
(CT:VISA-906; 09-19-2007)
a. Non-personal service contracts for previously allowed employee associations
are being phased out. Recreation associations on a post-by-post basis will soon
implement conversion to personal services contracts (PSCs) for their
employees. If the local government labor regulations have always considered
the employees of recreation associations to be a part of the U.S. Government,
then the Department transfers annual and sick leave accrued by employees
previously hired under non-personal service contracts as creditable service
under the new PSCs. If, however, those individuals were considered by local
government labor laws to be non-U.S. Government employees performing a
service only for the U.S. Government, their time spent under non-personal
services contracts would not be credited toward U.S. Government employment.
b. On this basis, once an employee association converts its employees to PSCs,
we will then be able to consider their employees for special immigrant status.
If the employees time spent on the job does not transfer at the time of the
conversion, then those employees will begin the count towards the 15-year
minimum of U.S. Government employment abroad for SE-1 status from the first
day of their personal services contract.

9 FAM 42.32(d)(2) N4.6 Status of Household Servants
(TL:VISA-83; 08-13-1993)
Household servants are personal employees of the individual officer who may
retain or dismiss them. The fact that their salaries are partially covered by the
funds of the ambassador, DCM, principal officer, etc. does not change the fact that
they are employed by the individual and not the U.S. Government. Such
employees do not qualify for special immigrant status.


9 FAM 42.32(D)(2) N5 U.S. GOVERNMENT
SERVICE ABROAD
(CT:VISA-1440; 06-06-2010)
The term abroad as defined in INA 101(a)(38) (8 U.S.C. 1101(a)(38)) refers to
any part of the world outside the United States.


9 FAM 42.32(d)(2) N5.1 Employment in Canal Zone
(CT:VISA-1440; 06-06-2010)
An employee of the former administration of the Canal Zone may be considered
for the benefits of INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)) since the Canal
Zone is not defined as part of the United States.

9 FAM 42.32(d)(2) N5.2 U.S. Government Service in
Philippines
(CT:VISA-1440; 06-06-2010)
Service as an employee in the U.S. Government in the Philippines prior to the
independence of the Philippines on July 4, 1946, is considered service abroad
within the meaning of INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)).


9 FAM 42.32(D)(2) N6 APPROVAL STANDARDS
FOR SPECIAL IMMIGRANT STATUS UNDER INA
101(A)(27)(D)

9 FAM 42.32(d)(2) N6.1 Defining Honorably Retired
(CT:VISA-1440; 06-06-2010)
A former employee of the U.S. Government abroad seeking classification under
INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)) must establish that he or she is
honorably retired as the term is used in the statute. An employee, whose
termination is a result of reduction-in-force, separation due to age, voluntary
retirement, or resignation for personal reasons, can be considered honorably
retired". Separation not within the meaning of honorably retired would involve
forced or requested removal for cause or a resignation aimed at forestalling such
removal.

9 FAM 42.32(d)(2) N6.2 Defining Faithful Service
(CT:VISA-1440; 06-06-2010)
An alien seeking classification under INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D))
must have performed faithfully in the position held. The principal officer has
primary responsibility for determining whether the aliens service has met this
requirement. A record of disciplinary actions that have been taken against the
employee does not automatically disqualify the employee. The principal officer
should assess the importance of any such disciplinary actions in light of:
(1) ) The gravity of the reasons for the disciplinary action; and


(2) Whether the record as a whole, notwithstanding existing disciplinary
actions, is one of faithful service.

9 FAM 42.32(d)(2) N6.3 Years of U.S. Government
Service
(CT:VISA-906; 09-19-2007)
An alien must have been employed for a total of at least 15 full-time years in the
service of the U.S. Government abroad.

9 FAM 42.32(d)(2) N6.3-1 Full-Time Service
(CT:VISA-906; 09-19-2007)
Although the total employment period must equal at least 15 years of full-time
service, the employee need not have worked full-time throughout the period. For
example, if the employee worked full-time for 10 years and half-time for at least
10 more, that equivalent of 15 years of full-time employment would qualify the
employee for consideration.

9 FAM 42.32(d)(2) N6.3-2 Continuity
(TL:VISA-54; 02-28-1992)
The employees period of service need not have been continuous. For example, if
an alien was employed for nine years, left for a period of time, and later returned
to U.S. Government service for six or more years, this would meet the 15-year
requirement.

9 FAM 42.32(d)(2) N6.3-3 Where and for Whom Is Irrelevant
(CT:VISA-906; 09-19-2007)
The location of the employment does not matter as long as it meets the definition
of abroad. Similarly, it does not matter if the employment was with different
agencies, provided that it all meets the definition of U.S. Government
employment.

9 FAM 42.32(d)(2) N6.4 Principal Officers
Recommendation
(CT:VISA-1440; 06-06-2010)
The principal officer of a Foreign Service establishment must make the
recommendation to the Secretary of State for favorable action under INA
101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)). This term embraces not only principal
officers or acting principal officers of consular posts and chiefs or acting chiefs of


diplomatic missions but also heads of field offices of other U.S. Government
departments or agencies abroad. The District Administrator of the Trust Territory
of the Pacific Islands is also considered a principal officer of a Foreign Service
establishment for purposes of INA 101(a)(27)(D).

9 FAM 42.32(d)(2) N6.5 Exceptional Circumstances
Requirement
(CT:VISA-1440; 06-06-2010)
The principal officer's recommendation that an alien be granted special immigrant
status under INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)) must be made in
exceptional circumstances. The legislative history of this provision does not
indicate specifically what such exceptional circumstances might be. However,
Congress clearly did not intend that an alien be granted the benefits of INA
101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)) simply as recognition for the requisite
years of service.
The following categories represent longstanding criteria used to determine whether
there were exceptional circumstances present in an employees case. In
preparing recommendations to the Department, Posts must submit documentation
that strongly indicates there were exceptional circumstances that met the below
criteria. Recommendations containing only anecdotal recommendations or letters
of recommendation that do not clearly contain any of the following criteria will not
normally satisfy the exceptional circumstances requirement and will be returned
to post for further consideration.

9 FAM 42.32(d)(2) N6.5-1 Categories of Exceptional
Circumstances
(CT:VISA-906; 09-19-2007)
a. Exceptional circumstances fall broadly within three categories:
(1) Exceptional circumstances of a prima facie nature;
(2) Cases that strongly merit consideration of a finding of exceptional
circumstance; and
(3) Cases which demonstrate other bases for a finding of exceptional
circumstances.
b. Cases falling under the first category will more likely be of an objective nature
than categories 2 and 3. Category 2 will be more objectively oriented than
category 3. It is important that you submit documentation which strongly
indicates that there were exceptional circumstances present in an employees
case.


9 FAM 42.32(d)(2) N6.5-2 Exceptional Circumstances of
Prima Facie Nature
(CT:VISA-671; 01-13-2005)
The principal officer's recommendation should describe the exceptional
circumstances in full detail. The following factors are illustrative of situations in
which an employees service with the U.S. Government may be deemed to have
exceptional circumstances" of a prima facie nature:
(1) Relations between the alien employees country of nationality and the
United States have been severed;
(2) ) The country in which the alien employee was employed and the
United States have severed diplomatic relations;
(3) ) The country in which the alien employee was employed and the United
States have strained relations and in which the employee may be subjected
to persecution by the local government merely because of association with
the U.S. Government, or where the circumstances are such that the
employee may be pressured to divulge information available to him which
would be contrary to U.S. national interests; and/or
(4) ) The alien was hired as an employee at the Consulate General at Hong
Kong on or before July 1, 1999 and has at least 15 years of faithful service.
(99 State 124186.)

9 FAM 42.32(d)(2) N6.5-3 Cases Strongly Meriting
Consideration Based on Exceptional Circumstances
(CT:VISA-906; 09-19-2007)
In some cases, an employee has in the course of faithful service fulfilled
responsibilities or rendered service so far beyond the call of duty that some form
of recognition is merited. If circumstances such as those mentioned below are
present in a case, the principal officers recommendation should address the
circumstances in detail. Circumstances, such as the following, would definitely
meet the "exceptional circumstances" requirement:
(1) ) The employee has served the U.S. Government loyally and efficiently,
and you believe that continued service to the U.S. Government might
endanger the life of the employee; and
(2) ) The employee has, in the course of faithful service, fulfilled
responsibilities or given service in a manner that approaches the heroic.
Obvious examples are prevention of a physical attack on a U.S. official or
citizen at the risk of an employees own life, or protection of U.S. property
in time of war, uprising, natural disaster, or other grave local disturbance.


9 FAM 42.32(d)(2) N6.5-4 Other Exceptional Circumstances
Cases
(CT:VISA-2042; 10-16-2013)
Service beyond the call of duty can encompass less spectacular activities than
those referred to in 9 FAM 42.32(d)(2) N6.5-3 above. In determining whether
there are exceptional circumstances present, you should assess the applicant's
service to the U.S. Government in light of the following factors which sometimes
individually, but typically in combination, constitute exceptional circumstances.
Examples include, but are not limited to, the following:
(1) ) The employee has served as an employee of the U.S. Government in a
faithful and competent fashion for a period substantially exceeding the 15-
year statutory minimum. The extent to which other factors set forth in this
note are indicative of "exceptional circumstances" would have to be
established according to how much time an employee has in service above
the fifteen-year minimum. For example, "exceptional circumstances"
would not be found unless theres a substantial showing of factors such as
in whose case the factors listed in the preceding note were lacking). Thus,
when an employee has less than 20 years of service, the case must be
supported by another exceptional circumstance. On the other hand, we
will give particular consideration to cases involving the excellent service of
an employee with 20 or more years of employment in the United States
Government -- a period substantially exceeding the statutory minimum;
(2) ) The employee has (or has had) high visibility in a sensitive position, and
the employees performance as a representative of the U.S. Government in
contacts with host government entities and other organizations has
brought great credit to the agency by which employed;
(3) ) The employee's position with the U.S. Government requires control over
key aspects of the operations of a Foreign Service post, and, thus, the
overall functioning of the post. As an example, control over the finances of
a post would be a favorable consideration. We will give particular
consideration to an employee whose performance has resulted in
substantial monetary savings for the U.S. Government or has yielded other
significant benefits;
(4) ) The employee has been given individual awards in recognition of skill and
personal usefulness to the U.S. Government. The merit of such awards is
increased if it is apparent that there is a pattern of sustained high
performance. If an employee has received such an individual award, his or
her nomination for a Special Immigrant Visa (SIV) could be approvable on
that basis. We will give less consideration to awards granted on a group
basis, because such awards have limited utility in establishing that any of
the recipients is sufficiently exceptional on his or her own to warrant
classification under INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D));


(5) ) The employee has, apart from performance of official duties, rendered
valuable services and assistance to the U.S. community at post, including
activities undertaken after termination of the employees official
employment relationship with the U.S. Government;
(6) ) The employee has served for an extended time in a responsible position
in a country foreign to that employee, has thereby lost economic and social
ties in the home country, and thus, might find it extremely difficult to be at
ease in either the country of service or the home country after retiring, or
virtually impossible to find suitable employment if that is necessary or
desirable.


9 FAM 42.32(D)(2) N7 U.S. GOVERNMENT
EMPLOYEES IN CANAL ZONE
(CT:VISA-1440; 06-06-2010)
Many present or former U.S. Government employees in the former Canal Zone
may qualify for special immigrant status under INA 101(a)(27)(D) (8 U.S.C.
1101(a)(27)(D)). We have concluded that changes brought about by the Panama
Canal Treaty of 1977 and the Panama Canal Act of 1979 may constitute
exceptional circumstances. Recommendations from principal officers should
include information explaining how, and to what extent, an individual employee
has been affected by those changes. (See 9 FAM 42.32(d)(3) Related Statutory
Provisions for other classifications available to Panama Canal employees.)


9 FAM 42.32(D)(2) N8 SPECIAL IMMIGRANT
STATUS FOR AMERICAN INSTITUTE IN TAIWAN
(AIT) EMPLOYEES
(CT:VISA-906; 09-19-2007)
Section 201 of Public Law 103-416 amended INA 101(a)(27)(D) (8 U.S.C.
1101(a)(27)(D)) to permit both present and former employees of the American
Institute in Taiwan (AIT) to apply for special immigrant status. The employees'
service before and after the founding of AIT is counted toward the minimum 15
years of service requirement.


9 FAM 42.32(D)(2) N9 REQUIRING IMMEDIATE
INTENT TO IMMIGRATE

(CT:VISA-1143; 02-03-2009)


Special immigrant status was not designed for use as an insurance policy to
protect an alien against the possibility of political or economic vicissitudes in the
future. Nor was it the intent of Congress that the principal alien obtain special
immigrant status solely to facilitate the entry of dependents into the United States
when it is the principal aliens intent to return abroad to resume employment with
the U.S. Government. For these reasons, the regulations in 22 CFR
42.32(d)(2)(i)(A) limit the validity of special immigrant status to one year and that
of the petition to six months. Generally, a post should refrain from submitting a
recommendation for special immigrant status to the Department until such a time
as the employee has:
(1) Established an intention to resign the position being held; and
(2) Demonstrated an intention to immigrate to the United States within a
designated period of time.

9 FAM 42.32(d)(2) N9.1 Certification of Active Intent
to Pursue Immigrant Visa Application
(CT:VISA-1143; 02-03-2009)
The principal officer must certify:
(1) ) The employee being recommended is prepared to pursue an immigrant
visa application within one year of the Departments notification to the post
of approval of special immigrant status; and
(2) ) The employee intends permanent separation from U.S. Government
employment abroad no later than the date of departure for the United
States following issuance of an immigrant visa.

9 FAM 42.32(d)(2) N9.2 Unanticipated Delays in
Departure
(CT:VISA-1143; 02-03-2009)
We recognize that there may be circumstances in which local conditions at some
posts may necessitate a delay in the aliens departure in compliance with the
regulations and above guidance. If the principal officer concludes in a particular
case that the delay has been or would be in the national interest, he or she should
state this in the request and recommend an extension of validity.


9 FAM 42.32(d)(2) N9.3 Employees of Hong Kong
Consulate General on or before July 1, 1999
(CT:VISA-1143; 02-03-2009)
a. A special immigrant employee of the Consulate General at Hong Kong, hired on
or before July 1, 1999, is not required to establish immediate intent to
immigrate. Employees of the Hong Kong Consulate General who received or
were approved for special immigrant status before July 1, 1999, may also
continue employment.
b. Special immigrants exempted from the "immediate intent to immigrate"
requirement, however, must be re-checked and re-approved for status before
the special immigrant visa can be issued. (99 STATE 124186.)

9 FAM 42.32(d)(2) N9.4 Effect of Numerical Limits
(CT:VISA-1143; 02-03-2009)
a. We also recognize, that the imposition of a numerical limit on fourth preference
special immigrants might prompt concerns about acquiring as early a priority
date as possible, despite the regulations and the employees travel plans. It is
probable that visa numbers will be available for all such applicants except those
chargeable to oversubscribed countries subject to the pro rata provisions of INA
202 (8 U.S.C. 1152).
b. With respect to applicants from oversubscribed countries, the time limit on
petition validity does not commence until a visa number becomes available.
Principal officers may take this into account in submitting their
recommendations.


9 FAM 42.32(D)(2) N10 SPOUSES AND
CHILDREN
(CT:VISA-1143; 02-03-2009)
You should note that, although INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D))
refers to an employee or former employee and "accompanying" spouses and
children, INA 203(d) (8 U.S.C. 1153(d)), relating to immediate family members of
all preference immigrants, grants derivative status and priority dates to spouses
and children who are "accompanying or following-to-join." Spouses and children
of U.S. Government employees accorded fourth preference status are, therefore,
no longer required to be accompanying but may also follow-to-join the principal
alien.


9 FAM 42.32(D)(2) N11 FEES


(CT:VISA-1984; 05-02-2013)
a. Although the Secretary of State is authorized to establish a fee for the filing of
a petition for special immigrant status as a U.S. Government employee, no fee
has been established.
b. The fee for processing a special immigrant visa application as a U.S.
Government employee is found in the Schedule of Fees (22 CFR 22.1) under
sections 32(c) and 32(d).




9 FAM 42.32(D)(2)
PROCEDURAL NOTES
(CT:VISA-2070; 02-28-2014)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(D)(2) PN1 ACQUIRING
EMPLOYMENT-BASED FOURTH PREFERENCE
STATUS
(TL:VISA-54; 02-28-1992)
An alien who wishes to immigrate under INA 203(b)(4) must file a petition to
accord such a classification with a consular officer, but only after having been
notified that he or she has been granted status as a special immigrant.


9 FAM 42.32(D)(2) PN2 ACQUIRING SPECIAL
IMMIGRANT STATUS

9 FAM 42.32(d)(2) PN2.1 Principal Officers
Recommendation
(CT:VISA-2070; 02-28-2014)
a. The principal officer must recommend that the employee or retired employee
be granted special immigrant status under exceptional circumstances based on:
(1) Official records to establish the period of time served with the U.S.
Government;
(2) Documented evidence of exceptional circumstances (see 9 FAM
42.32(d)(2) N6.5); and
(3) Assessment of the overall picture of the employees performance as
illustrated in the personnel file by such items as evaluation reports,
reprimands, awards, etc.
b. In the case of an alien described in section 152 of the Immigration Act of 1990,
there must also be a showing that the alien or a family member is subject to a
clear threat due to employment with the U.S. Government or under a U.S.
Government official. Posts must, however, submit all such cases to CA/VO/L/A
for an advisory opinion before undertaking ordinary processing.


9 FAM 42.32(d)(2) PN2.2 Form of Submission
(CT:VISA-2070; 02-28-2014)
The post must submit the recommendation and a summary of the evidence to
support the recommendation to CA/VO/L/A via an advisory opinion (AO) sent
through the IVO system. The principal officer must sign the recommendation and
it must include:
(1) ) The name and date and place of birth of the principal alien and
any immediate family accompanying or following to join;
(2) ) The length of time the alien has been in the employ abroad of the
U.S. Government and the agency or agencies concerned, with
appropriate employment dates and places;
(3) ) The present employment status of the alien and, if not employed, the
reasons and circumstances surrounding the aliens departure from the last
U.S. Government position;
(4) The principal officers recommendation. (See 9 FAM 42.32(d)(2) N2.1 for
particulars.)


9 FAM 42.32(D)(2) PN3 ESTABLISHING PRE-
SCREENING PANELS
(TL:VISA-54; 02-28-1992)
Various posts have instituted interagency pre-screening panels to consider cases
of employees desiring special immigrant status under INA 101(a)(27)(D). These
panels pre-screen cases prior to submission to the principal officer for a decision
whether to recommend to the Department that special immigrant status be
authorized. The Department endorses this approach for posts that find them
useful, particularly large posts where various U.S. Government agencies employ
foreign nationals.

9 FAM 42.32(d)(2) PN3.1 Functions of Pre-Screening
Panels
(TL:VISA-54; 02-28-1992)
Participation by representatives of various agencies in the deliberations of the pre-
screening panels ensures that their views are given weight. An advantage for
posts using pre-screening panels is the uniformity of approach that is afforded by
panel assessment of the statutorily required exceptional circumstances
dimension in cases of all employees seeking immigrant status under INA
101(a)(27)(D). A pre-screening panels preliminary determination that such
circumstances exist in an employees case, along with the panels verification that


the other requirements discussed in the preceding interpretive note material also
have been met, can be of great assistance to a principal officer in deciding
whether to recommend that the employee be granted special immigrant status.
While the principal officer retains ultimate authority to make recommendations to
the Department for special immigrant status and therefore cannot be bound by the
decision of a pre-screening panel, these recommendations would normally carry
great weight. This ensures that employees of all agencies are treated equally.

9 FAM 42.32(d)(2) PN3.2 Notation of Review by Pre-
Screening Panels
(TL:VISA-3; 08-30-1987)
Any post wishing to institute a pre-screening panel system may do so without prior
Departmental approval. However, a post seeking Departmental authorization of
special immigrant status for an employee whose case has been reviewed by a pre-
screening panel should so indicate in its recommendation and should specify
whether the pre-screening panel recommended for or against submission.


9 FAM 42.32(D)(2) PN4 ESTABLISHING
PRIORITY DATE
(CT:VISA-2070; 02-28-2014)
The priority date of a petition filed by a special immigrant government employee is
the date Form DS-1884, Petition to Classify Special Immigrant Under INA
203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, is
properly filed with the consular officer abroad.


9 FAM 42.32(D)(2) PN5 DELEGATED AUTHORITY
TO APPROVE PETITIONS
(CT:VISA-697; 02-09-2005)
a. Authority to approve petitions for INA 203(b)(4) classification on behalf of the
Secretary of State has been delegated to consular officers under 22 CFR
42.32(d)(2)(vii)). The bases for approval are that the alien has:
(1) Been accorded status as a special immigrant under INA 101(a)(27)(D)
prior to filing the petition; and
(2) Filed the petition within one year of acquiring such status.
b. If all of the above factors are present, the consular officer has no basis for
denial of the petition and may not do so. If any of those factors is not present
(e.g., the petition was not filed in a timely fashion), the consular officer must


submit an advisory opinion request to CA/VO/L/A. (See 9 FAM 42.32(d)(2)
N9.2 regarding extensions of validity.)


9 FAM 42.32(D)(2) PN6 CA/VO/L/A FUNCTION
IN PROVIDING GUIDANCE ON SECTION
101(A)(27)(D) ISSUES
(TL:VISA-54; 02-28-1992)
Any inquiry of a general nature regarding special immigrant classification should
be directed to CA/VO/L/A as a request for an advisory opinion.


9 FAM 42.32(D)(2) PN7 CA/VO/L/A FUNCTION
IN DETERMINING ELIGIBILITY UNDER SECTION
101(A)(27)(D)
(TL:VISA-54; 02-28-1992)
The Advisory Opinions Division of the Department of State (CA/VO/L/A) acts on
behalf of the Secretary of State in approving the principal officers
recommendation that an alien be granted status as a special immigrant and
determining that it is in the national interest to grant such status.






9 FAM 42.32(d) (3)
PANAMA CANAL EMPLOYEES
(CT:VISA-1399; 02-19-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(3) RELATED STATUTORY
PROVISIONS
(CT:VISA-1350; 10-21-2009)
See INA 101(a)(27)(E), (F), and (G) (8 U.S.C. 1101(a)(27)(E), (F), and
(G)), INA 203(b)(4) (8 U.S.C. 1153(b)(4)), INA 203(d) (8 U.S.C. 1153(d)),
and INA 204(a)(1)(E) (8 U.S.C. 1154(a)(1)(E)).

INA 101(a)(27)(E), (F), and (G)
(E) An immigrant, and his accompanying spouse and children, who is or has
been an employee of the Panama Canal Company or Canal Zone
Government before the date on which the Panama Canal Treaty of 1977 (as
described in section 3 (a)(1) of the Panama Canal Act of 1979) enters into
force, who was resident in the Canal Zone on the effective date of the
exchange of instruments of ratification of such Treaty, and who has
performed faithful service as such an employee for one year or more;
(F) An immigrant, and his accompanying spouse and children, who is a
Panamanian national and
(i) Who, before the date on which such Panama Canal Treaty of 1977
enters into force, has been honorably retired from United States
Government employment in the Canal Zone with a total of 15 years or
more of faithful service, or
(ii) Who, on the date on which such Treaty enters into force, has been
employed by the United States Government in the Canal Zone with a
total of 15 years or more of faithful service and who subsequently is
honorably retired from such employment or continues to be employed
by the United States Government in an area of the former Canal Zone;
(G) An immigrant, and his accompanying spouse and children, who was an
employee of the Panama Canal Company or Canal Zone Government on the
effective date of the exchange of instruments of ratification of such Panama
Canal Treaty of 1977, who has performed faithful service for five years or
more as such an employee, and whose personal safety, or the personal
safety of whose spouse or children, as a direct result of such Treaty, is




reasonably placed in danger because of the special nature of any of that
employment.
INA 203(b)(4)

b. Preference Allocation for Employment-Based Immigrants. - Aliens subject
to the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:
(4) Certain special immigrants. - Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to qualified
special immigrants described in section 101(a)(27) (other than those
described in subparagraph (A) or (B) thereof), of which not more than
5,000 may be made available in any fiscal year to special immigrants
described in subclause (II) or (III) of section 101(a)(27)(C)(ii), and not
more than 100 may be made available in any fiscal year to special
immigrants, excluding spouses and children, who are described in section
101(a)(27)(M).
INA 203(d)
d. Treatment of family members.A spouse or child as defined in
subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not
otherwise entitled to an immigrant status and the immediate issuance of a
visa under subsection (a), (b), or (c), be entitled to the same status, and the
same order of consideration provided in the respective subsection, if
accompanying or following to join, the spouse or parent.
INA 204(a)(1)(E)
(E) Any alien desiring to be classified under section 203(b)(1)(A), or any
person on behalf of such an alien, may file a petition with the Attorney
General for such classification.


9 FAM 42.32(d)(3) RELATED REGULATORY
PROVISIONS
(CT:VISA-1350; 10-21-2009)
See 22 CFR 42.32(d)(3)

Aliens subject to the worldwide level specified in section 201(d) for
employment-based immigrants in a fiscal year shall be allotted visas as
indicated below.

(d) Fourth preference--Special immigrants--
(3) Panama Canal employees




(i) Entitlement to status. An alien who is subject to the numerical
limitations specified in section 3201(c) of the Panama Canal Act of
1979, Public Law 96-70, is classifiable under INA 203(b)(4) as a
special immigrant described in INA 101(a)(27) (E), (F), or (G) if the
consular officer has received a petition approved by DHS to accord
such classification, or official notification of such an approval, and the
consular officer is satisfied that the alien is within one of the classes
described in INA 101(a)(27) (E), (F), or (G).

(ii) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the spouse or child of any alien
classified under INA 203(b)(4) as a special immigrant qualified under
this section, if not otherwise entitled to an immigrant status and the
immediate issuance of a visa, is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.






9 FAM 42.32(D)(3) NOTES
(CT:VISA-683; 01-31-2005)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(D)(3) N1 PANAMA CANAL
TREATY SPECIAL IMMIGRANTS MAY ALSO
QUALIFY UNDER INA 101(A)(27)(D)
(TL:VISA-54; 2-28-92)

An alien applying for status under INA 101(a)(27)(E), (F), or (G) may also
qualify as a special immigrant under INA 101(a)(27)(D). (See section 9 FAM
42.32(d)(2) N5.1.)


9 FAM 42.32(D)(3) N2 EMPLOYMENT OF
SPECIAL NATURE
(TL:VISA-3; 8-30-87)

Although not specifically stated in the Panama Canal Act of 1979, the words
special nature of any of that employment in INA 101(a)(27)(G) are
intended to pertain to aliens employed as police, firemen, or security guards
by the Canal Company or the Canal Zone Government.






9 FAM 42.32(D)(3) N3 POSTS OUTSIDE
PANAMA TO OBTAIN OPINION OF
DEPARTMENT AND EMBASSY BEFORE FINAL
PROCESSING
(CT:VISA-683; 01-31-2005)

In view of the possible difficulties in verifying the periods and nature of
employment and residence, posts other than Embassy Panama receiving
applications from aliens seeking benefits under INA 101(a)(27)(E), (F), or
(G) should obtain the opinion of the Embassy at Panama City and the
Department of State, Advisory Opinions Division (CA/VO/L/A) before taking
final action.






9 FAM 42.32(d)(4)
FOURTH PREFERENCE SPECIAL
IMMIGRANTS- SPOUSE AND CHILDREN
OF CERTAIN PHYSICIANS
(CT:VISA-1676; 09-06-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(4) RELATED STATUTORY
PROVISIONS
(CT:VISA-1676; 09-06-2011)
See INA 101(a)(27)(H) (8 U.S.C. 1101(a)(27)(H)), INA 203 (b)(4) (8 U.S.C.
1153(b)(4)), and INA 204 (a)(1)(G)(i) (8 U.S.C. 1154(a)(1)(E)(i)).
INA 101(a)(27)(H)
(H) An immigrant, and his accompanying spouse and children, who
(i) Has graduated from a medical school or has qualified to practice
medicine in a foreign state,
(ii) Was fully and permanently licensed to practice medicine in a State
on January 9, 1978, and was practicing medicine in a State on that
date,
(iii) Entered the United States as a nonimmigrant under subsection
(a)(15)(H) or (a)(15)(J) before January 10, 1978, and
(iv) Has been continuously present in the United States in the practice
or study of medicine since the date of such entry.
INA 203(b)(4)

b. Preference Allocation for Employment-Based Immigrants. - Aliens subject
to the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:
(4) Certain special immigrants. Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in section 101(a)(27)
(other than those described in subparagraph (A) or (B) thereof),
of which not more than 5,000 may be made available in any fiscal
year to special immigrants described in subclause (II) or (III) of




section 101(a)(27)(C)(ii), and not more than 100 may be made
available in any fiscal year to special immigrants, excluding
spouses and children, who are described in section 101(a)(27)(M).
INA 204(a)(1)(G)(i)

(i) Any alien (other than a special immigrant under section 101(a)(27)(D))
desiring to be classified under section 203(b)(4), or any person on behalf of
such an alien, may file a petition with the Attorney General for such
classification.


9 FAM 42.32(d)(4) RELATED REGULATORY
PROVISIONS
(CT:VISA-1351; 10-21-2009)
See 22 CFR 42.32(d)(4)

Aliens subject to the worldwide level specified in section 201(d) for
employment-based immigrants in a fiscal year shall be allotted visas as
indicated below.

(d) Fourth preference--Special immigrants-

(4) Spouse and children of certain foreign medical graduates. The
accompanying spouse and children of a graduate of a foreign medical
school or of a person qualified to practice medicine in a foreign state
who has adjusted status as a special immigrant under the provisions of
INA 101(a)(27)(H) are classifiable under INA 203(b)(4) as special
immigrants defined in INA 101(a)(27)(H) if the consular officer has
received an approved petition from DHS which accords such status and
the consular officer is satisfied that the alien is within the class
described in INA 101(a)(27)(H).






9 FAM 42.32(d)(4)
NOTES
(CT:VISA-1676; 09-06-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(4) N1 CLASSES OF FOREIGN
MEDICAL GRADUATES ELIGIBLE TO ADJUST
STATUS AS SPECIAL IMMIGRANTS
(CT:VISA-1676; 09-06-2011)

a. INA 101(a)(27)(H) permits certain alien physicians and the accompanying
spouse and children to adjust status as special immigrants without regard
to labor certification requirements or the restrictions of INA 245(c)
concerning previous unauthorized employment, provided the alien
physicians were fully and permanently licensed to practice medicine in a
State and practicing medicine in a State on January 9, 1978, had entered
the United States as nonimmigrant temporary workers or exchange
visitors before January 10, 1978, and have been thereafter continuously
in the United States in the practice or study of medicine. It is reasonable
to assume that all eligible physician beneficiaries have already taken
advantage of this provision. There may, however, still be a few spouses
and children who have not yet accompanied the principal to the United
States and may still wish to do so.

b. This class, like most other special immigrant classes, is now incorporated
in the employment-based fourth preference. As a result, the spouse or
child of such an adjustee cannot be issued a derivative special immigrant
visa but must be the beneficiary of a petition to accord status under INA
101(a)(27)(H) as an accompanying spouse or child. Thus, it will be
necessary for the resident alien spouse or child to follow the procedure in
22 CFR 40.1(a) to confer such status. The petition may be filed by either
the principal resident alien or the beneficiary.



9 FAM 42.32(d)(4) N2 ACCOMPANYING
SPOUSE AND CHILDREN
(CT:VISA-1676; 09-06-2011)




The definition of accompanying in 22 CFR 40.1(a) includes a requirement
for the issuance of an immigrant visa within six months of the adjustment,
or registration, of the principal alien. In light of the new requirement for a
petition in these cases and the fact that the time required for petition
approval may make compliance therewith impossible, the Department will
deem that requirement to have been met if the petition is filed within that
six-month period.






9 FAM 42.32(d)(5)
FOURTH PREFERENCE SPECIAL
IMMIGRANTS CERTAIN
INTERNATIONAL ORGANIZATION AND
NATO CIVILIAN EMPLOYEES
(CT:VISA-1352; 10-21-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(5) RELATED STATUTORY
PROVISIONS
(CT:VISA-1352; 10-21-2009)
See INA 101(a)(27)(I) (8 U.S.C. 1101(a)(27)(I)), INA 101(a)(27)(L) (U.S.C.
1101(a)(27)(L)), INA 101(a)(15)(N) (U.S.C. 1101(a)(15)(N)), INA 203(b)(4)
(8 U.S.C. 1153(b)(4)), INA 204(a)(1)(G)(i) (8 U.S.C. 1154(a)(1)(G)(i)), and
Section 301(c) of Public Law 106-396.
INA 101(a)(27)(I)

(I) (i) an immigrant who is the unmarried son or daughter of an officer or
employee, or of a former officer or employee, of an international
organization described in paragraph (15)(G)(i), and who

(I) while maintaining the status of a nonimmigrant under paragraph
(15)(G)(iv) or paragraph (15)(N), has resided and been physically
present in the United States for periods totaling at least one-half of the
seven years before the date of application for a visa or for adjustment
of status to a status under this subparagraph and for a period or
periods aggregating at least seven years between the ages of five and
21 years, and

(II) applies for a visa or adjustment of status under this subparagraph
no later than his twenty- fifth birthday or six months after the date of
the enactment of the Immigration Technical Corrections Act of 1988,
whichever is later;

(ii) an immigrant who is the surviving spouse of a deceased officer or
employee of such an international organization, and who




(I) while maintaining the status of a nonimmigrant under paragraph
(15)(G)(iv) or paragraph (15)(N), has resided and been physically
present in the United States for periods totaling at least one-half of the
seven years before the date of application for a visa or for adjustment
of status to a status under this subparagraph and for a period or
periods aggregating at least 15 years before the date of the death of
such officer or employee, and

(II) files a petition for status under this subparagraph no later than six
months after the date of such death or six months after the date of the
enactment of the Immigration Technical Corrections Act of 1988,
whichever is later;

(iii) an immigrant who is a retired officer or employee of such an
international organization, and who

(I) while maintaining the status of a nonimmigrant under paragraph
(15)(G)(iv), has resided and been physically present in the United
States for periods totaling at least one-half of the seven years before
the date of application for a visa or for adjustment of status to a status
under this subparagraph and for a period or periods aggregating at
least 15 years before the date of the officer or employee's retirement
from any such international organization, and

(II) files a petition for status under this subparagraph no later than six
months after the date of such retirement or six months after the date
of enactment of the Immigration and Nationality Technical Corrections
Act of 1994, whichever is later; or

(iv) an immigrant who is the spouse of a retired officer or employee
accorded the status of special immigrant under clause (iii), accompanying or
following to join such retired officer or employee as a member of his
immediate family

INA 101(a)(27)(L)
(L) an immigrant who would be described in clause (i), (ii), (iii), or (iv) of
subparagraph (I) if any reference in such a clause--

(i) to an international organization described in paragraph (15)(G)(i)
were treated as a reference to the North Atlantic Treaty Organization
(NATO);

(ii) to a nonimmigrant under paragraph (15)(G)(iv) were treated as a
reference to a nonimmigrant classifiable under NATO-6 (as a member
of a civilian component accompanying a force entering in accordance
with the provisions of the NATO Status-of-Forces Agreement, a




member of a civilian component attached to or employed by an Allied
Headquarters under the Protocol on the Status of International
Military Headquarters set up pursuant to the North Atlantic Treaty, or
as a dependent); and

(iii) to the Immigration Technical Corrections Act of 1988 or to the
Immigration and Nationality Technical Corrections Act of 1994 were a
reference to the American Competitiveness and Workforce
Improvement Act of 1998
INA 203(b)(4)
b. Preference Allocation for Employment-Based Immigrants. - Aliens subject
to the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:
(4) Certain special immigrants. - Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in section 101(a)(27)
(other than those described in subparagraph (A) or (B) thereof),
of which not more than 5,000 may be made available in any fiscal
year to special immigrants described in subclause (II) or (III) of
section 101(a)(27)(C)(ii), and not more than 100 may be made
available in any fiscal year to special immigrants, excluding
spouses and children, who are described in section 101(a)(27)(M).

INA 204(a)(1)(G)(i)
(i) Any alien (other than a special immigrant under section 101(a)(27)(D))
desiring to be classified under section 203(b)(4), or any person on behalf of
such an alien, may file a petition with the Attorney General for such
classification.


9 FAM 42.32(d)(5) RELATED REGULATORY
PROVISIONS
(CT:VISA-1352; 10-21-2009)
See 22 CFR 42.32(d)(5)

Aliens subject to the worldwide level specified in section 201(d) for
employment-based immigrants in a fiscal year shall be allotted visas as
indicated below.
(d) Fourth preference--Special immigrants
(5) Certain international organization and NATO civilian employees




(i) Entitlement to status. An alien is classifiable under INA 203(b)(4)
as a special immigrant defined in INA 101(a)(27)(I) or (L) if the consular
officer has received a petition approved by the DHS to accord such
classification, or official notification of such approval, and the consular officer
is satisfied from the evidence presented that the alien is within one of the
classes described therein.

(ii) Timeliness of application. An alien accorded status under INA
203(b)(4) because of qualification under INA 101(a)(27)(I) or (L) must
appear for the final visa interview and issuance of the immigrant visa within
six months of establishing entitlement to status.






9 FAM 42.32(d)(5)
NOTES
(CT:VISA-1019; 09-12-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(5) N1 INTELSAT EMPLOYEES
(TL:VISA-332; 11-15-2001)

For the purpose of INA 101(a)(27)(I), INTELSAT shall be considered an
International Organization. (See section 301 of Public Law 106-396.)


9 FAM 42.32(d)(5) N2 SPECIAL IMMIGRANT
STATUS UNDER INA 101(A)(27)(I) OR (L)
(TL:VISA-185; 02-26-1999)

An applicant eligible for status as a special immigrant under INA
101(a)(27)(I) or (L) must also be the beneficiary of an approved
employment-based fourth preference petition. For a statutory description of
qualifications for special immigrant status under INA 101(a)(27)(I) and (L),
see 9 FAM 42.32(d)(5) Related Statutory Provisions.


9 FAM 42.32(d)(5) N3 REQUIREMENTS FOR
STATUS UNDER INA 101(A)(27)(I) OR (L)

9 FAM 42.32(d)(5) N3.1 Unmarried Sons or
Daughters of Certain Present or Former Officers or
Employees of an International Organization or
NATO

9 FAM 42.32(d)(5) N3.1-1 Residence and Physical
Presence Requirements
(TL:VISA-185; 02-26-1999)




The applicant, while maintaining nonimmigrant G, N or NATO status, must
have resided and been physically present in the United States for periods
totaling at least one-half of the seven years before the date of application for
a visa or for adjustment of status, AND for a period or periods aggregating
at least seven years between the ages of five and 21 years.


9 FAM 42.32(d)(5) N3.1-2 Application Requirements
(CT:VISA-1019; 09-12-2008)

The applicant must apply for a visa or adjustment of status no later than his
or her twenty-fifth birthday.


9 FAM 42.32(d)(5) N3.2 Surviving Spouse of
Deceased Officer or Employee of an International
Organization or NATO

9 FAM 42.32(d)(5) N3.2-1 Residence and Physical
Presence Requirements
(TL:VISA-185; 02-26-1999)

The applicant, while maintaining nonimmigrant G, N or NATO status, must
have resided and been physically present in the United States for periods
totaling at least one half of the seven years before the date of application for
a visa or for adjustment of status AND for a period or periods aggregating at
least 15 years before the date of death of the international organization
employee.


9 FAM 42.32(d)(5) N3.2-2 Application Requirements
(TL:VISA-54; 02-28-1992)

The applicant must apply for a visa or adjustment of status no later than six
months after the death of an officer or employee of an international
organization.


9 FAM 42.32(d)(5) N3.3 Certain Retired Officers or
Employees of an International Organization or
NATO




9 FAM 42.32(d)(5) N3.3-1 Residence and Physical
Presence Requirements
(TL:VISA-54; 02-28-1992)

The applicant, while maintaining nonimmigrant G, N or NATO status, must
have resided and been physically present in the United States for periods
totaling at least one-half of the seven years before the date of application for
a visa or for adjustment of status AND for a period or periods aggregating at
least 15 years before the date of the international employees retirement.


9 FAM 42.32(d)(5) N3.3-2 Application Requirements
(CT:VISA-683; 01-31-2005)

The applicant must apply for a visa or adjustment of status no later than six
months after the date of retirement. The Department of Homeland Security
(DHS) has determined that although petitions must be filed no later than six
months after the alien retires; visas may be issued after that date.


9 FAM 42.32(d)(5) N3.4 Spouses of Certain Retired
Officers or Employees of an International
Organization or NATO
(CT:VISA-683; 01-31-2005)

The applicant must be accompanying or following-to-join the retired
officer or employee who meets the qualification outlined under 9 FAM
42.32(d)(5) N3.3 above.


9 FAM 42.32(d)(5) N4 SPECIFIC CRITERIA
TO ESTABLISH ENTITLEMENT TO SPECIAL
IMMIGRANT STATUS UNDER INA
101(A)(27)(I) OR (L)
(CT:VISA-683; 01-31-2005)

a. The Department of Homeland Security (DHS) requires evidence that the
petition beneficiary (who may also be the petitioner) is entitled to special
immigrant status under INA 101(a)(27)(I) or (L) in connection with
adjudicating the employment-based fourth preference petition. The
specific criteria DHS will assess include:




(1) Employment with, or relationship to an employee of, an
international organization or NATO;

(2) Length of residence (as defined in INA 101(a)(33)) in the United
States;

(3) Length of physical presence in the United States;

(4) Maintenance of G-4, N or NATO status; and

(5) Timing of application.

b. Because the beneficiary class includes only aliens who are or have been in
the United States, DHS records can constitute the most compelling
evidence for entitlement to status.


9 FAM 42.32(d)(5) N5 TIMELINESS OF
APPLICATION
(TL:VISA-185; 02-26-1999)

Department of State regulation 22 CFR 42.32(d)(5)(ii) requires that an alien
who qualifies under INA 101(a)(27)(I) or (L) be issued an immigrant visa
within six months of establishing entitlement to status.


9 FAM 42.32(d)(5) N6 NO DERIVATIVE
STATUS
(TL:VISA-185; 02-26-1999)

Except for aliens entitled to status under INA 101(a)(27)(I)(iv), there is no
derivative status provided under INA 101(a)(27)(I) or (L).






9 FAM 42.32(d)(6)
FOURTH PREFERENCE SPECIAL
IMMIGRANTS - CERTAIN JUVENILE
COURT DEPENDENTS
(CT:VISA-1353; 10-21-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(6) RELATED STATUTORY
PROVISIONS
(CT:VISA-1353; 10-21-2009)

See INA 101(a)(27)(J) (8 U.S.C. 1101(a)(27)(J)), INA 203(b)(4) (8 U.S.C.
1153(b)(4)), INA 204(a)(1)(G)(i) (8 U.S.C. 1154(a)(1)(G)(i)), and INA
241(h) (8 U.S.C. 1231(h)), Amended by section 113 of Public Law 105-119;
Nov. 26, 1997.

INA 101(a)(27)(J)

(J) an immigrant who is present in the United States

(i) who has been declared dependent on a juvenile court located in the
United States or whom such a court has legally committed to, or
placed under the custody of, an agency or department of a State or
an individual or entity appointed by a State or juvenile court located
in the United States, and whose reunification with one or both of
the immigrant's parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law;

(ii) for whom it has been determined in administrative or judicial
proceedings that it would not be in the aliens best interest to be
returned to the aliens or parents previous country of nationality or
country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents to the
grant of special immigrant juvenile status; except that

(I) no juvenile court has jurisdiction to determine the custody
status or placement of an alien in the custody of the Secretary of
Health and Human Services unless the Secretary of Health and




Human Services specifically consents to such jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien provided
special immigrant status under this subparagraph shall thereafter,
by virtue of such parentage, be accorded any right, privilege, or
status under this Act.

INA 203(b)(4)

b. Preference Allocation for Employment-Based Immigrants. - Aliens subject
to the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:

(4) Certain special immigrants. - Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in section 101(a)(27) (other
than those described in subparagraph (A) or (B) thereof), of which
not more than 5,000 may be made available in any fiscal year to
special immigrants described in subclause (II) or (III) of section
101(a)(27)(C)(ii), and not more than 100 may be made available in
any fiscal year to special immigrants, excluding spouses and
children, who are described in section 101(a)(27)(M).

INA 204(a)(1)(G)(i)

(i) Any alien (other than a special immigrant under section
101(a)(27)(D)) desiring to be classified under section 203(b)(4), or
any person on behalf of such an alien, may file a petition with the
Attorney General for such classification.

INA 241(h)

h. Statutory construction: Nothing in this section shall be construed to
create any substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its agencies or
officers or any other person.


9 FAM 42.23(d)(6) RELATED REGULATORY
PROVISIONS
(CT:VISA-1353; 10-21-2009)

Refer to 22 CFR 42.32(d)(6)
Section 42.32 Employment-based preference immigrants.




Aliens subject to the worldwide level specified in section 201(d) for
employment-based immigrants in a fiscal year shall be allotted visas as
indicated below.
(d) Fourth preference--Special immigrants
(6) Certain juvenile court dependents. An alien shall be classifiable under
INA 203(b)(4) as a special immigrant defined in INA 101(a)(27)(J) if the
consular officer has received from DHS an approved petition to accord such
status, or an official notification of such an approval, and the consular officer
is satisfied the alien is within the class described in that section.





9 FAM 42.32(d)(6) NOTES
EMPLOYMENT-BASED FOURTH
PREFERENCE JUVENILE COURT
DEPENDENTS
(CT:VISA-1020; 09-15-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(6) N1 ELIGIBILITY
(CT:VISA-1020; 09-15-2008)

It is likely that most, if not all, juvenile court dependents classifiable
under INA 203(b)(4) as aliens described in INA 101(a)(27)(J) will seek
and be entitled to adjustment of status, rather than applying for visas
abroad. Consular officers should note, however, that, while the
Immigration Act of 1990 provided for the waiver of certain bases for
deportation for such aliens, it did not waive the bars to adjustment in
INA 245(c), nor to grounds of ineligibility under INA 212. It is
therefore possible, absent other legislation, that some beneficiaries of
this provision might have to apply for a visa abroad.






9 FAM 42.32(d)(7)
CERTAIN MEMBERS OF UNITED STATES
ARMED FORCES RECRUITED ABROAD
(CT:VISA-1354; 10-21-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(7) RELATED STATUTORY
PROVISIONS
(CT:VISA-1354; 10-21-2009)

See INA 101(a)(27)(K) (8 U.S.C. 1101(a)(27)(K)), INA 203(b)(6) (8 U.S.C.
1153(b)(6)), and INA 203(d) (8 U.S.C. 1153(d)).

INA 101(a)(27)(K)

(27) The term "special immigrant" means

(K) an immigrant who has served honorably on active duty in the
Armed Forces of the United States after October 15, 1978, and
after original lawful enlistment outside the United States (under a
treaty or agreement in effect on the date of the enactment of this
subparagraph) for a period or periods aggregating
(i) 12 years and who, if separated from such service, was
never separated except under honorable conditions, or
(ii) 6 years, in the case of an immigrant who is on active duty
at the time of seeking special immigrant status under this
subparagraph and who has reenlisted to incur a total
active duty service obligation of at least 12 years, and the
spouse or child of any such immigrant if accompanying or
following to join the immigrant, but only if the executive
department under which the immigrant serves or served
recommends the granting of special immigrant status to
the immigrant; Note

[Amended by section 601(d) of Public Law 110-161, 121 Stat. 2373; 2007]

INA 203(b)(6)

(6) Special rules for "k" special immigrants. -





(A) Not counted against numerical limitation in year involved. - Subject to
subparagraph (B), the number of immigrant visas made available to special
immigrants under section 101(a)(27)(K) in a fiscal year shall not be subject
to the numerical limitations of this subsection or of section 202(a).

(B) Counted against numerical limitations in following year.-

(i) Reduction in employment-based immigrant classifications. -
The number of visas made available in any fiscal year under
paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the
number of visas made available in the previous fiscal year to
special immigrants described in section 101(a)(27)(K).

(ii) Reduction in per country level. - The number of visas made
available in each fiscal year to natives of a foreign state under
section 202(a) shall be reduced by the number of visas made
available in the previous fiscal year to special immigrants
described in section 101(a)(27)(K) who are natives of the
foreign state.

(iii) Reduction in employment-based immigrant classifications
within per country ceiling. - In the case of a foreign state subject
to section 202(e) in a fiscal year (and in the previous fiscal
year), the number of visas made available and allocated to each
of paragraphs (1) through (3) of this subsection in the fiscal year
shall be reduced by 1/3 of the number of visas made available in
the previous fiscal year to special immigrants described in
section 101(a)(27)(K) who are natives of the foreign state.

(C) [Subparagraph (C) was stricken by Sec. 212(b) of the
Immigration and Nationality Technical Corrections Act of 1994
(Public Law 103-416, 108 Stat. 4314, Oct. 25, 1994)].

INA 203(d)

Treatment of family members .A spouse or child as defined in
subparagraph (A), (B), (C), (D), or (E) of section 101 (b)(1) of this title
shall, if not otherwise entitled to an immigrant status and the immediate
issuance of a visa under subsection (a), (b), or (c) of this section, be entitled
to the same status, and the same order of consideration provided in the
respective subsection, if accompanying or following to join, the spouse or
parent.




9 FAM 42.32(d)(7) RELATED REGULATORY
PROVISIONS
(CT:VISA-1354; 10-21-2009)

See 22 CFR 42.32(d)(7).

Section 42.32 Employment-based preference immigrants. Aliens
subject to the worldwide level specified in section 201(d) for employment-
based immigrants in a fiscal year shall be allotted visas as indicated below.

(d) Fourth preference--Special immigrants

(7) Certain members of the United States Armed Forces recruited abroad--
(i) Entitlement to status. An alien is classifiable under INA 203(b)(4) as a
special immigrant described in INA 101(a)(27)(K) if the consular office
has received a petition approved by the DHS to accord such classification,
or official notification of such an approval, and the consular officer is
satisfied from the evidence presented that the alien is within the class
described in INA 101(a)(27)(K).

(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether
or not named in the petition, the spouse or child of any alien classified
under INA 203(b)(4) as a special immigrant qualified under this section, if
not otherwise entitled to an immigrant status and the immediate issuance
of a visa, is entitled to a derivative status corresponding to the
classification and priority date of the beneficiary of the petition.






9 FAM 42.32(d)(7) NOTES
EMPLOYMENT-BASED FOURTH
PREFERENCE MEMBERS OF U.S.
ARMED FORCES
(CT:VISA-1019; 09-12-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(7) N1 APPLICABILITY TO
VISA ISSUANCE
(TL:VISA-69; 10-30-92)
The Armed Forces Immigration Adjustment Act of 1991, Public Law
102-110 was enacted on October 1, 1991. Section 2 of this Act
provided for special immigrant status under INA 101(a)(27)(K) for
certain foreign nationals who served honorably in the U.S. Armed
Forces, or will serve, for a period of 12 years. These
enlistees/veterans and their spouses and children may apply to
become permanent resident aliens of the United States and also
become immediately eligible to apply for naturalization as U.S.
citizens. Although the title of this Act implies that the beneficiaries of
this classification will apply for adjustment of status, it is possible that
some beneficiaries and/or their spouses or children will apply for
immigrant visas.


9 FAM 42.32(d)(7) N2 PETITION
REQUIREMENT
(CT:VISA-675; 01-24-2005)
To be classified as a special immigrant under INA 101(a)(27)(K) an
alien must be the beneficiary of an approved Form I-360, Petition for
Amerasian, Widow(er) or Special Immigrant. The petition must be
filed with the Department of Homeland Security (DHS) having
jurisdiction over the place of the aliens current or intended place of
residence in the United States, or with the overseas DHS office having
jurisdiction over the aliens residence abroad.




9 FAM 42.32(d)(7) N3 ELIGIBILITY
(CT:VISA-675; 01-24-2005)
An alien may be eligible for classification under INA 101(a)(27)(K) if
the:
(1) Alien is a veteran who served honorably in the U.S. Armed
Forces on active duty for a period of 12 years after October
15, 1978;
(2) Alien is currently enlisted in the U.S. Armed Forces, has
served at least six years, and has reenlisted for a total active
duty service obligation of at least 12 years;
(3) Aliens original enlistment was outside the United States
under a treaty or agreement in effect October 1, 1991 (the
United States has special agreements with the Philippines,
Micronesia, and the Marshall Islands to allow natives of those
countries to serve in our Armed Forces); and
(4) Executive department under which the alien has served or is
serving has recommended the granting of special immigrant
status.


9 FAM 42.32(d)(7) N4 DERIVATIVE
STATUS
(CT:VISA-1019; 09-12-2008)
The accompanying or following-to-join spouse or child of an alien
granted special immigrant status under INA 101(a)(27)(K) may also
be accorded the same special immigrant classification. This may occur
whether or not the spouse or child is named in the petition and without
the approval of a separate petition. The relationship of spouse or
child, however, must have existed at the time the principal aliens
special immigrant application was approved. If the spouse or child is
in the United States but was not included in the principal aliens
application, the spouse or child shall file Form I-485, Application for
Permanent Residence, with the DHS. If the spouse or child is outside
the United States, the principal alien shall file Form I-824, Application
for Action on an Approved Application or Petition.


9 FAM 42.32(d)(7) N5 DOCUMENTATION
(TL:VISA-69; 10-30-92)
The following documents must be submitted in support of the petition:




(1) Certified proof of enlistment (after 6 years of active duty
service) or certification of past active duty status of 12 years,
issued by the authorizing official of the executive department
in which the applicant serves or has served, certifying that
the applicant has the required honorable service and
recommending special immigrant status; and
(2) Birth certificate, or other acceptable documentary proof,
establishing that the applicant is a national of an independent
state maintaining a treaty or agreement allowing nationals of
that state to enlist in the U.S. Armed Forces.






9 FAM 42.32(D)(7)
PROCEDURAL NOTES
(CT:VISA-676; 01-24-2005)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(D)(7) PN1 VISA NUMBER
ALLOCATION NOT REQUIRED
(TL:VISA-184; 01-22-1999)
A visa number for an applicant classified under INA 101(a)(27)(K) is
not required in advance of visa issuance. When the case is ready for
final action, the post should schedule a visa interview appointment and
bring the case to a conclusion without a request for or allocation of a
visa number.


9 FAM 42.32(D)(7) PN2 REPORTING VISA
ISSUANCES
(CT:VISA-676; 01-24-2005)
Posts should report visa issuances under INA 101(a)(27)(K) to the
Department in their monthly workload reports.


































9 FAM 42.32(d)(8)
FOURTH PREFERENCE SPECIAL
IMMIGRANTS - CERTAIN
INTERNATIONAL BROADCASTING
EMPLOYEES
(CT:VISA-1677; 09-07-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(8) RELATED STATUTORY
PROVISIONS
(CT:VISA-1677; 09-07-2011)

See INA 101(a)(27)(M) (8 U.S.C. 1101(a)(27)(M)), added by Public Law 106-
536

INA 101(a)(27)(M)

(M) subject to the numerical limitations of section 203 (b)(4) of this
title, an immigrant who seeks to enter the United States to work as
a broadcaster in the United States for the International
Broadcasting Bureau of the Broadcasting Board of Governors, or for
a grantee of the Broadcasting Board of Governors, and the
immigrants accompanying spouse and children.


9 FAM 42.23(d)(8) RELATED REGULATORY
PROVISIONS
(CT:VISA-985; 07-29-2008)

See 22 CFR 42.32(d)(8)






9 FAM 42.32(d)(8)
NOTES
(CT:VISA-1019; 09-12-2008)
(Office of Origin: CA/VO/L/R


9 FAM 42.32(d)(8) N1 BACKGROUND
(TL:VISA-332; 11-15-2001)
Public Law 106-536 amended the INA by adding a new special immigrant
classification (BC) for international broadcasting employees who are seeking
visas to enter the United States to work as:
(1) A broadcaster in the United States for the International
Broadcasting Bureau of the Broadcasting Board of Governors
(BBG); or
(2) For a grantee of the BBG.


9 FAM 42.32(d)(8) N2 QUALIFYING UNDER
INA 101(A)(27)(M)
(TL:VISA-394; 04-12-2002)
To qualify as a special immigrant under INA 101(a)(27)(M), an applicant
must:
(1) Be the beneficiary of an approved fourth preference petition Form I-
360, Petition for Amerasian, Widow(er), or Special Immigrant;
(2) Provide a signed and dated attestation from the BBG or its grantee
which reflects:
(a) The job title and a full description of the job to be performed;
(b) The experience held by the alien broadcaster;
(c) The number of years the alien has been performing duties
that related to the prospective position;
(d) That hiring the alien broadcaster is in compliance with other
laws governing employment and discrimination prevention;
and
(e) The terms of the job are not contrary to any Federal, State,
or local law.




9 FAM 42.32(d)(8) N3 DEFINITIONS

9 FAM 42.32(d)(8) N3.1 Defining Broadcaster
(CT:VISA-1019; 09-12-2008)
For the purposes of this visa, the Department of Homeland Security (DHS)
defines broadcaster as an alien intending to work in the United States for
the BBG or a BBG grantee as a:
(1) Reporter;
(2) Writer;
(3) Translator;
(4) Editor;
(5) Producer or announcer for news broadcasts;
(6) Host for news broadcasts, news analysis, editorial and other
broadcasts features; or
(7) News analysis specialist.
The definition does not include aliens seeking purely technical or support
positions with the BBG or BBG grantee.

9 FAM 42.32(d)(8) N3.2 Defining BBG Grantee
(TL:VISA-332; 11-15-2001)
For the purposes of this section BBG grantee means:
(1) Radio Free Asia, Inc (RFA); and
(2) Radio Free Europe/Radio Liberty, Inc. (RFE/RL).


9 FAM 42.32(d)(8) N4 PETITION
(CT:VISA-1019; 09-12-2008)
If the BBG or a BBG grantee wishes to employ an alien who seeks to enter
the United States under INA 101(a)(27)(M), they must file the Form I-360,
Petition for Amerasian, Widow(er), or Special Immigrant with the DHS
Vermont Service Center.


9 FAM 42.32(d)(8) N5 DETERMINING A
PRIORITY DATE




(CT:VISA-1019; 09-12-2008)
The priority date of a petition for classification under INA 101(a)(27)(M) is
the date the completed application, including all supporting documentation
and the designated fee, is signed and properly filed with the Vermont
Service Center.


9 FAM 42.32(d)(8) N6 NUMERICAL
LIMITATION
(TL:VISA-332; 11-15-2001)
The law limits the number of broadcasters to no more than 100 in any fiscal
year. This excludes spouses and children who are not limited in number.


9 FAM 42.32(d)(8) N7 ACCOMPANYING
SPOUSES AND CHILDREN
(TL:VISA-332; 11-15-2001)
Spouses and children, if accompanying the principal alien, may be granted
derivative status. (See 22 CFR 40.1(a)(1) for the definition of
accompanying.)






9 FAM 42.32(d)(9)
FOURTH PREFERENCE--SPECIAL
IMMIGRANTS--VICTIMS OF TERRORISM
(CT:VISA-1098; 11-03-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(9) RELATED STATUTORY
PROVISIONS
(CT:VISA-1098; 11-03-2008)

See Sec. 421 of Public Law 107-56.

SEC. 421. SPECIAL IMMIGRANT STATUS.


a. In General.--For purposes of the Immigration and Nationality Act (8
U.S.C. 1101 et seq.), the Attorney General may provide an alien
described in subsection (b) with the status of a special immigrant under
section 101(a)(27) of such Act (8 U.S.C. 1101(a(27)), if the alien
(1) files with the Attorney General a petition under section 204 of such
Act (8 U.S.C. 1154) for classification under section 203(b)(4) of
such Act (8 U.S.C. 1153(b)(4)); and
(2) is otherwise eligible to receive an immigrant visa and is otherwise
admissible to the United States for permanent residence, except in
determining such admissibility, the grounds for inadmissibility
specified in section 212(a)(4) of such Act (8 U.S.C. 1182(a)(4))
shall not apply.
b. Aliens Described.
(1) Principal aliens.--An alien is described in this subsection if-
(A) the alien was the beneficiary of
(i) a petition that was filed with the Attorney General on or
before September 11, 2001--
(I) under section 204 of the Immigration and
Nationality Act (8 U.S.C. 1154) to classify the alien
as a family-sponsored immigrant under section
203(a) of such Act (8 U.S.C. 1153(a)) or as an




employment-based immigrant under section 203(b)
of such Act (8 U.S.C. 1153(b)); or
(II) under section 214(d) (8 U.S.C. 1184(d)) of
such Act to authorize the issuance of a nonimmigrant
visa to the alien under section 101(a)(15)(K) of such
Act (8 U.S.C. 1101(a)(15)(K)); or
(ii) an application for labor certification under section
212(a)(5)(A) of such Act (8 U.S.C. 1182(a)(5)(A)) that
was filed under regulations of the Secretary of Labor on or
before such date; and
(B) such petition or application was revoked or terminated (or
otherwise rendered null), either before or after its approval, due
to a specified terrorist activity that directly resulted in
(i) the death or disability of the petitioner, applicant, or alien
beneficiary; or
(ii) loss of employment due to physical damage to, or
destruction of, the business of the petitioner or applicant.
(2) Spouses and children.
(A) In general.--An alien is described in this subsection if--
(i) the alien was, on September 10, 2001, the spouse or child
of a principal alien described in paragraph (1); and
(ii) the alien--
(I) is accompanying such principal alien; or
(II) is following to join such principal alien not later than
September 11, 2003.
(B) Construction.--For purposes of construing the terms
accompanying and following to join in subparagraph (A)(ii),
any death of a principal alien that is described in paragraph
(1)(B)(i) shall be disregarded.
(3) Grandparents of orphans.--An alien is described in this
subsection if the alien is a grandparent of a child, both of whose
parents died as a direct result of a specified terrorist activity, if
either of such deceased parents was, on September 10, 2001, a
citizen or national of the United States or an alien lawfully admitted
for permanent residence in the United States.
c. Priority Date.--Immigrant visas made available under this section shall
be issued to aliens in the order in which a petition on behalf of each such
alien is filed with the Attorney General under subsection (a)(1), except
that if an alien was assigned a priority date with respect to a petition




described in subsection (b)(1)(A)(i), the alien may maintain that priority
date.
d. Numerical Limitations.--For purposes of the application of sections 201
through 203 of the Immigration and Nationality Act (8 U.S.C. 1151-
1153) in any fiscal year, aliens eligible to be provided status under this
section shall be treated as special immigrants described in section
101(a)(27) of such Act (8 U.S.C. 1101(a)(27)) who are not described in
subparagraph (A), (B), (C), or (K) of such section.


9 FAM 42.32(d)(9) RELATED REGULATORY
PROVISIONS
(CT:VISA-1098; 11-03-2008)

See 22 CFR 42.32(d)(9).






9 FAM 42.32(d)(9)
NOTES
(CT:VISA-1281; 09-03-2009)
(Office of Origin: CA/VA/L/R)


9 FAM 42.32(d)(9) N1 DEFINITION OF
TERMS UNDER THE USA PATRIOT ACT
(CT:VISA-1281; 09-03-2009)
For the Department of Homeland Security (DHS) evidentiary standards for
death, disability, loss of employment, and circumstances, which might have
prevented timely application or use of visas, see 9 FAM 40.1 N12.


9 FAM 42.32(d)(9) N2 SECTION 421 OF THE
USA PATRIOT ACT
(CT:VISA-1281; 09-03-2009)
Section 421 of the USA Patriot Act (Public Law 107-56) provides special
immigrant status subject to numerical limitations under INA 101(a)(27) for
certain aliens who can demonstrate:
(1) They are victim of the terrorist attacks of September 11, 2001
(evidentiary requirements as determined by the Secretary of the
Department of Homeland Security); and
(2) They are beneficiaries of petitions or labor certification applications
filed on or before September 11, 2001, revoked, terminated, or
rendered null because the petitioner was killed, disabled, or the
business was ruined as the result of such terrorist activity.


9 FAM 42.32(d)(9) N3 ENTITLEMENT TO
SPECIAL IMMIGRANT STATUS UNDER
SECTION 421 OF THE USA PATRIOT ACT FOR
SURVIVING SPOUSE, CHILD, OR FIANCE OF A
U.S. CITIZEN FOR WHOM PETITION FILED
(CT:VISA-1281; 09-03-2009)




The surviving spouse, child, or fianc of a U.S. citizen killed in the
September 11 attacks may self-petition for special immigrant status as if the
principal alien had not died. The petition must have been filed before
September 11, 2001. The relationship of a derivative spouse or child to the
principal alien must have existed on September 10, 2001. The alien must
demonstrate that the death of the principal alien was a direct result of the
terrorist attack of September 11, 2001. The derivative child must enter the
United States by September 11, 2003.


9 FAM 42.32(d)(9) N4 APPLYING FOR
SPECIAL IMMIGRANT STATUS UNDER
PROVISIONS OF THE USA PATRIOT ACT
(CT:VISA-672; 01-14-2005)
Applicants must submit Department of Homeland Security (DHS) Form I-
360, Petition for Amerasian, Widow(er), or Special Immigrant including
evidence of entitlement to special immigrant status, to the DHS service
center that has jurisdiction over the alien's place of residence. Consular
officers should be advised to contact the DHS for detailed application
procedures and requirements. Consular officers must wait for the approved
petition before visa processing can begin.


9 FAM 42.32(d)(9) N5 PROCESSING
APPLICATIONS UNDER SECTION 421 OF THE
USA PATRIOT ACT
(TL:VISA-386; 04-05-2002)
Posts will be notified of Form I-140, Immigrant Petition for Alien Worker
approval via National Visa Center (NVC). Posts should then proceed with
regular IV processing by sending Instruction and Appointment packages to
the applicant. Applicants must comply with the usual security checks,
demonstrate evidence of relationships, and undergo the standard medical
exam. However, no Form I-864, Affidavit of Support Under Section 213A of
the Act may be required. The Patriot Act specifically exempts applicants
from the public charge ground of inadmissibility under INA 212(a)(4).
Qualified applicants should be issued:
"SP - beneficiary of section 421, USA PATRIOT ACT".


9 FAM 42.32(d)(9) N6 INA 212(A)(4)




(TL:VISA-386; 04-05-2002)
The public charge provisions of INA 212(a)(4) are not applicable to aliens
granted special immigrant status under section 421 of the USA Patriot Act.
All other grounds of ineligibility apply.


9 FAM 42.32(d)(9) N7 PRIORITY DATE
(TL:VISA-386; 04-05-2002)
Under section 421 of the USA Patriot Act, an alien's priority date under INA
203(b)(4) is generally the date that the alien files the petition for
classification as a special immigrant. However, if an alien already has
established a priority date based on the initial petition, the alien can
maintain the earlier priority date.


9 FAM 42.32(d)(9) N8 ACCOMPANYING AND
FOLLOWING-TO-JOIN DEPENDENTS

9 FAM 42.32(d)(9) N8.1 Spouse and Child
(TL:VISA-386; 04-05-2002)
The spouse and children of an alien who qualifies under section 421 of the
USA Patriot Act as a special immigrant may also be granted special
immigrant status provided:
(1) The relationship to the principal alien existed on September 10,
2001; and
(2) The alien is accompanying or following-to-join the principal alien no
later than September 11, 2003.

9 FAM 42.32(d)(9) N8.2 Child Over Age 21
(TL:VISA-386; 04-05-2002)
The child of an alien who is granted special immigrant status under section
421 of the USA Patriot Act who was a "child" on September 10, 2001, may
still benefit from the special immigrant provisions even after reaching the
age of 21.

9 FAM 42.32(d)(9) N8.3 Grandparents
(TL:VISA-386; 04-05-2002)
The grandparent of an alien who qualifies under section 421 of the USA




Patriot Act may be granted special immigrant status if both parents of the
grandchild died as a result of the September 11 attacks and if one of the
parents was a U.S. citizen, U.S. national or a lawful permanent resident alien
on September 10, 2001. The spouse or child of the grandparent who
qualifies under this section may accompany or follow-to-join the principal
applicant.

9 FAM 42.32(d)(9) N8.3-1 Applying for Special Immigrant
Status
(TL:VISA-386; 04-05-2002)
The grandparent who qualifies under section 421(c) of the USA Patriot Act,
must self-petition using Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant. The grandparent must demonstrate that he or she is
coming to the United States to assume legal custody of a child both of whose
parents were killed in the September 11, 2001 terrorist attack. (See 9 FAM
40.1 N12.)

9 FAM 42.32(d)(9) N8.3-2 Processing Special Immigrants
Under Section 421(c) of the USA Patriot Act
(CT:VISA-672; 01-14-2005)
Upon receipt of an approved Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant, consular officers should process the case as any other
immigrant case. However, no Form I-864, Affidavit of Support Under
Section 213A of the Act, may be required and the applicant is exempt of INA
212(a)(4). The applicant shall be issued a visa annotated:
"SP - beneficiary of section 421, USA PATRIOT ACT".


9 FAM 42.32(d)(9) N9 BENEFICIARY OF USA
PATRIOT ACT WITH APPROVED LABOR
CERTIFICATION
(TL:VISA-386; 04-05-2002)
Under section 421(b)(1)(A)(ii), a principal alien beneficiary of an approved
labor certification that is revoked due to the disabling of the principal alien or
the loss of his or her employment due to physical damage caused by the
terrorist attacks of September 11 is eligible for special immigrant status, as
are his or her derivative spouse and children. If the principal alien was killed
in the attacks of September 11, a surviving spouse or child is eligible for
special immigrant status. The labor certification must have been filed on or
before September 11, 2001. The relationship of a derivative spouse or child




to the principal alien must have existed on September 10, 2001. (See 9
FAM 40.1 N12).

9 FAM 42.32(d)(9) N9.1 Applying for Status
(CT:VISA-672; 01-14-2005)
The alien classified as an SP alien under the USA Patriot Act must file Form
I-360, Petition for Amerasian, Widow(er), or Special Immigrant with DHS at
the service center that has jurisdiction over the intended place of residence.

9 FAM 42.32(d)(9) N9.2 Processing an Alien Under
421(b)(1)(A)(ii) of the USA Patriot Act
(CT:VISA-672; 01-14-2005)
The consular officer shall follow standard Immigrant Visa (IV) processing
once the approved petition is received from NVC. However, no Form I-864,
Affidavit of Support Under Section 213A of the Act, may be required and the
applicant is exempt from 212(a)(4) ineligibility. Issue as follows:
SP - beneficiary of section 421, USA PATRIOT ACT.






9 FAM 42.32(d)(10)
FOURTH PREFERENCE--SPECIAL
IMMIGRANTS--CERTAIN SPECIAL
IMMIGRANT TRANSLATORS
(CT:VISA-963; 06-06-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(10) RELATED STATUTORY
PROVISIONS
(CT:VISA-963; 06-06-2008)

Section 1059 of Public Law 109-163, the National Defense Authorization Act
for Fiscal Year 2006, as amended by section 3812(b) of Public Law 110-28
and section 699J of Division J of Public Law 110-161, authorizes special
immigrant status for nationals of Iraq or Afghanistan serving as translators
or interpreters with the United States Armed Forces or under Chief of
Mission (COM) authority ("special immigrant translator or interpreter
status"). Section 2 of Public Law 110-242 provides that the Secretary of
State or the Secretary of Homeland Security may convert an approved
petition for special immigrant status under section 1059 with respect to
which a visa is not immediately available to a petition for special immigrant
status under section 1244 of Public Law 110-181, the National Defense
Authorization Act for Fiscal Year 2008.






9 FAM 42.32(d)(10)
NOTES
(CT:VISA-1379; 11-25-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(10) N1 BACKGROUND
(CT:VISA-1379; 11-25-2009)

Section 1059 of Public Law 109-163, the National Defense Authorization Act
for Fiscal Year 2006, as amended by section 3812(b) of Public Law 110-28
and section 699J of Division J of Public Law 110-161, modifies Immigration
and Nationality Act (INA) 101(a)(27) to authorize special immigrant status
for nationals of Iraq or Afghanistan serving as translators or interpreters
with the United States Armed Forces or under Chief of Mission (COM)
authority ("special immigrant translator or interpreter status"). Section 2 of
Public Law 110-242 provides that the Secretary of State or the Secretary of
Homeland Security may convert an approved petition for special immigrant
status under section 1059 with respect to which a visa is not immediately
available to a petition for special immigrant status under section 1244 of
Public Law 110-181, the National Defense Authorization Act for Fiscal Year
2008.


9 FAM 42.32(d)(10) N2 ELIGIBILITY FOR
SPECIAL IMMIGRANT TRANSLATOR OR
INTERPRETER STATUS UNDER INA
101(A)(27) (SECTION 1059 OF PUBLIC LAW
109-163)

9 FAM 42.32(d)(10) N2.1 Criteria for Status
(CT:VISA-1379; 11-25-2009)

Applicants filing special immigrant translator or interpreter (SI1) status must
meet the following criteria:

(1) Must be a national of Iraq or Afghanistan;




(2) Must have worked directly with the United States Armed Forces, or
under COM authority, as a translator or interpreter for a period of at
least 12 months;

(3) Must have provided faithful and valuable service to the United
States Armed Forces or the COM, which is documented in a
favorable written recommendation from a general or flag officer in
the chain of command of the United States Armed Forces unit that
was supported by the alien or, if the applicant claims status based
on work under COM authority, a favorable written recommendation
from the COM;

(4) Must have cleared a background check and screening as determined
by a general or flag officer in the chain of command of the United
States Armed Forces unit that was supported by the alien or by the
COM; and

(5) Is otherwise eligible to receive an immigrant visa (IV) and is
otherwise admissible to the United States for permanent residence,
except in determining such admissibility, the grounds for
inadmissibility specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4))
relating to "public charge" shall not apply.


9 FAM 42.32(d)(10) N2.2 Additional Interview
Requirements for Special Immigrants Under
Section 1059
(CT:VISA-1379; 11-25-2009)

An applicant for special immigrant translator or interpreter status must
provide for his or her interview a written description of his or her position
and responsibilities for translation or interpretation. Any principal applicant
for status under Section 1059 (see above, 9 FAM 42.32(d)(10) N1) must be
interviewed in English only. Applicants who do not meet these requirements
or who occupied positions inconsistent with these requirements are not
eligible for special immigrant visas (SIVs) under Section 1059. Descriptions
of the positions of translators and interpreters are provided on the Visa
Section of Consular Affairs Web site. These requirements do not apply to
Section 1244 applicants.


9 FAM 42.32(d)(10) N3 NUMERICAL
LIMITATIONS




(CT:VISA-1379; 11-25-2009)

a. Except as provided in paragraph b, the total number of principal aliens
who may be provided special immigrant translator or interpreter status
during any fiscal year shall not exceed 50.

b. If the numerical limitation is not reached during a given fiscal year, the
numerical limitation for the following fiscal year will be increased by the
amount of numbers that were unused.

c. If the numerical limitation for SI1 status has been reached during a given
fiscal year and the petition was filed before October 1, 2008, an approved
petition for SI1 status may be converted to an approved petition for
special immigrant status under section 1244 of Public Law 110-181
(SQ1), notwithstanding the qualification criteria for SQ1 status.


9 FAM 42.32(d)(10) N4 SPOUSES AND
CHILDREN
(CT:VISA-1379; 11-25-2009)

a. The derivative spouse and minor, unmarried children of the principal
applicant may be included in the case and do not count against the fiscal
year cap for interpreters and translators. They may accompany the
principal applicant or follow-to-join the principal.

b. A surviving spouse or child is also entitled to special immigrant status if
the principal alien had a petition approved by the Secretary of Homeland
Security, but the petition was revoked or terminated after its approval
due to the death of the petitioning alien. (Section 1244(b)(3) of Public
Law 110-181 and Section 602(b)(2)(C) of Division F of Public Law 111-8.)
In such an instance, the approved SI petition would be converted to an
approved SQ petition for special immigrant status under section 1244 of
Public Law 110-181 (for the surviving spouse or child of an Iraqi national)
or section 602(b) of Public Law 111-8 (for the surviving spouse or child of
an Afghan national); the cap would apply to the spouses case or, if there
is no spouse, the childs case.


9 FAM 42.32(d)(10) N5 PETITIONS
(CT:VISA-1379; 11-25-2009)

Aliens outside the United States file the petition with the U.S. Citizenship
and Immigration Services (USCIS) by sending the petition directly to the




Nebraska Service Center for adjudication. Posts have no authority to
adjudicate these translator or interpreter petitions. Posts will provide a
translator or interpreter under COM authority for at least 12 months who has
provided the requisite faithful and valuable service to the COM and cleared
the background check or screening with a favorable written recommendation
or evaluation from the COM. The U.S. Armed Forces unit, not the
Department of State, is the advocate on behalf of the translator or
interpreter (petitioner) with the U.S. Armed Forces and his or her immediate
family and will assist them with the required documentation. The Nebraska
Service Center will send an approved Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant through the National Visa Center (NVC) to
designated posts for adjudication.


9 FAM 42.32(d)(10) N6 APPROVAL OF
PETITION UNDER INA 204
(CT:VISA-1379; 11-25-2009)

The approval of a petition under INA 204 is considered to establish prima
facie entitlement to status, and the qualifications of the alien beneficiary are
presumed to exist. Unless you have specific, substantial evidence of either
misrepresentation in the petition process or facts unknown to USCIS at the
time of approval, you generally would have no reason to return the petition
to USCIS. A large number of these beneficiaries may adjust status in the
United States. If posts have further questions, contact Post Liaison
(CA/VO/F/P).


9 FAM 42.32(d)(10) N7 CASES CONVERTED
FROM SI1 TO SQ1
(CT:VISA-1379; 11-25-2009)
You may encounter a visa application for a principal alien whose approved
petition for SI1 status under section 1059 of Public Law 109-163, as
amended, has been converted to an approved petition for SQ1 status under
section 1244 of Public Law 110-181, as amended. In authorizing the
conversion of these petitions when a visa is not immediately available with
respect to SI1 status, Congress exempted the self-petitioning alien from the
qualification requirements for SQ1 status other than the numerical
limitations. In reviewing the qualifications of a principal alien whose petition
has been converted from SI1 to SQ1, you must consider the criteria outlined
in 9 FAM 42.32(d)(10) N2 above, not/not those found in 9 FAM 42.32(d)(11)
N2, to the extent that they differ. Unless you have specific, substantial




evidence of either misrepresentation in the petition process or facts
unknown to USCIS at the time of petition approval indicating that the alien
does not meet the criteria for SI1 status listed in 9 FAM 42.32(d)(10) N2
above, you generally would have no reason to return the petition to USCIS.
Note that, in the case of a national of Afghanistan whose petition has been
converted from SI1 to SQ1 status, you may not return the petition to USCIS
based on a lack of Iraqi nationality or citizenship since Afghan nationality is a
qualification ground listed in 9 FAM 42.32(d)(10) N2 above. The conversion
provision did not authorize a fee waiver. An individual whose case is
converted from 1059 to 1244 must pay all required fees.






9 FAM 42.32(d)(11)
FOURTH PREFERENCE--SPECIAL
IMMIGRANTS-CERTAIN IRAQI
NATIONALS WHO HAVE BEEN EMPLOYED
BY OR ON BEHALF OF THE U.S.
GOVERNMENT IN IRAQ
(CT:VISA-1188; 04-15-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(d)(11) RELATED STATUTORY
PROVISIONS
(CT:VISA-1188; 04-15-2009)

Section 1244 of Public Law 110-181, the National Defense Authorization Act
for Fiscal Year 2008, authorizes special immigrant status (SQ1) for certain
Iraqi nationals who have been employed by or on behalf of the United States
Government in Iraq on or after March 20, 2003, for a period of not less than
one year ("special immigrant status"). Section 2 of Public Law 110-242
authorizes the Secretary of State or the Secretary of Homeland Security to
convert an approved petition for SI1 special immigrant status under section
1059 of Public Law 109-163, the National Defense Authorization Act for
Fiscal Year 2006, with respect to which a visa is not immediately available,
to a petition for SQ1 status under section 1244 notwithstanding the
qualification criteria for SQ1 status.

Section 602(b) of Division F, Title VI, of the Omnibus Appropriations Act,
2009, Public Law 111-8, authorizes SQ1 for Afghan nationals who have been
employed by or on behalf of the U.S. Government in Afghanistan on or after
October 7, 2001, for a period of not less than one year.




9 FAM 42.32(D)(11)
NOTES
(CT:VISA-2044; 10-16-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(D)(11) N1 BACKGROUND
(CT:VISA-1171; 03-19-2009)
Section 1244 of Public Law 110-181, the National Defense Authorization Act for
Fiscal Year 2008, authorizes special immigrant status (SQ1) for Iraqi nationals who
have been employed by or on behalf of the U.S. Government in Iraq on or after
March 20, 2003, for a period of not less than one year. Section 2 of Public Law
110-242 authorizes the Secretary of State or the Secretary of Homeland Security
to convert an approved petition for special immigrant translator or interpreter
(SI1) to SQ1 under section 1059 of Public Law 109-163, the National Defense
Authorization Act for Fiscal Year 2006, with respect to which a visa is not
immediately available to a petition for SQ1 status under section 1244
notwithstanding the qualification criteria for SQ1 status. Section 602(b) of
Division F, Title VI, of the Omnibus Appropriations Act, 2009, Public Law 111-8,
authorizes SQ1 for Afghan nationals who have been employed by or on behalf of
the U.S. Government in Afghanistan on or after October 7, 2001, for a period of
not less than one year.


9 FAM 42.32(D)(11) N2 WHO IS ELIGIBLE FOR
SPECIAL IMMIGRANT STATUS (SQ1) UNDER
SECTION 1244?
(CT:VISA-1171; 03-19-2009)
To obtain U.S. Citizenship and Immigration Services (USCIS) approval of a petition
for special immigrant status (SQ1) under section 1244 of Public Law 110-181 or
section 602(b) of Division F, Title VI, of Public Law 111-8, a self-petitioning alien
must establish that he or she:
(1) Is a national of Iraq or Afghanistan;
(2) In the case of a national of Iraq: has been employed by, or on behalf of the
U.S. Government in Iraq, on or after March 20, 2003, for a period of not
less than one year; in the case of a national of Afghanistan: has been
employed by, or on behalf of the U.S. Government in Afghanistan, on or
after October 7, 2001, for a period of not less than one year;


(3) Has been determined by chief of mission (COM), Embassy Baghdad or
Embassy Kabul, as applicable, or the COMs designee, to have provided
faithful and valuable service to the U.S. Government, which is documented
in a positive recommendation from the aliens senior supervisor as defined
in 9 FAM 42.23(d)(11) N4;
(4) Has been determined by chief of mission, Embassy Baghdad or Embassy
Kabul, as applicable, or the COMs designee, to have experienced, or to be
experiencing, an ongoing serious threat as a consequence of the
employment by or on behalf of the U.S. Government;
(5) Has cleared a background check and appropriate screening as determined
by the Secretary of Homeland Security; and
(6) Is otherwise eligible to receive an immigrant visa (IV) and is otherwise
admissible to the United States for permanent residence, except that, in
the determination of such admissibility, the grounds for inadmissibility
specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4)) relating to "public charge"
shall not apply.


9 FAM 42.32(D)(11) N3 WHAT DOES FAITHFUL
AND VALUABLE SERVICE MEAN?
(CT:VISA-1171; 03-19-2009)
a. The COM, or his designee, must conduct an independent review of records
maintained by the U.S. Government or hiring organization or entity to confirm
both employment for a period of not less than one year and faithful and
valuable service.
b. The COM, or his designee, has primary responsibility for determining whether
the aliens service has been faithful and valuable, based on documentation
outlined in 9 FAM 42.32(d)(11) N2. This is separate from the supervisors
recommendation discussed in 9 FAM 42.32(d)(11) N4, although the supervisors
recommendation is an important document to assist in making this
determination.
c. 9 FAM 42.32(d)(2) N6.2, which discusses faithful service in the context of
special immigrant classification under INA 101(a)(27)(D) (8 U.S.C.
1101(a)(27)(D)), notes that a record of disciplinary actions that have been
taken against an employee does not automatically disqualify the employee.
The COM, or his designee, must assess the gravity of the reasons for the
disciplinary action and whether the record as a whole, notwithstanding the
disciplinary actions, is one of faithful service. Remember, though, that aliens
who qualify under INA 101(a)(27)(D) must have at least 15 years of service;
aliens may qualify under section 1244 or section 602(b) with only one year of
service. It will generally therefore be more difficult for an employee to
demonstrate faithful service over such a short period if the record reflects that


disciplinary action has been taken against the employee.


9 FAM 42.32(D)(11) N4 WHO QUALIFIES AS A
SUPERVISOR?
(CT:VISA-1171; 03-19-2009)
The supervisor should normally be the U.S. citizen who directly supervises the
alien, or supervises the company for which the alien is employed. In all cases,
before offering a recommendation for the employee for purposes of obtaining a
Special Immigrant Visa (SIV) for the employee, the supervisor must have met the
employee and must certify, in writing, that the referred applicant is personally
known to the supervisor and, to the best of the supervisors knowledge, presents
no threat to the national security or safety of the United States. If it is not
possible for a contract or subcontract employee to obtain this certification from a
U.S. citizen supervisor, then post may accept a letter from a non-U.S. citizen
supervisor, provided the U.S. citizen responsible for the contract or subcontract
co-signs the letter and indicates that based on his or her relationship with the
contract or subcontract supervisor, he or she is confident that the information
provided is correct and also certifies that to the best of his or her knowledge, the
employee presents no threat to the national security or safety of the United
States. The recommendation must also contain the supervisors e-mail address,
and if the supervisor is not a U.S. citizen, the U.S. citizens co-signers e-mail
address so he or she may be contacted if additional information is needed.


9 FAM 42.32(D)(11) N5 WHAT DOES HAS
EXPERIENCED OR IS EXPERIENCING AN
ONGOING SERIOUS THREAT MEAN?
(CT:VISA-1171; 03-19-2009)
To qualify for a visa under section 1244 or section 602(b), an alien must have
experienced, or be experiencing, an ongoing serious threat as a consequence of
his or her employment by, or on behalf of, the U.S. Government. This
determination must be made by the chief of mission, Embassy Baghdad or
Embassy Kabul, as applicable, or the COMs designee (see 9 FAM 42.32(d)(11) N8
(a)(1)). Applicants must submit information to demonstrate that they are
experiencing an ongoing serious threat, which may include statements from their
employer, personal statements, or statements from community leaders.


9 FAM 42.32(D)(11) N6 ARE THERE NUMERICAL
LIMITATIONS ON VISA ISSUANCE?


(CT:VISA-1171; 03-19-2009)
a. The total number of principal aliens of Iraqi nationality who may be provided
special immigrant status (SQ1) under section 1244 may not exceed 5,000 per
year for 5 successive fiscal years beginning with Fiscal Year 2008.
b. The total number of principal aliens of Afghan nationality who may be provided
SQ1 under section 602(b) may not exceed 1,500 per year for 5 successive
fiscal years beginning with Fiscal Year 2009.
c. If the numerical limitation for nationals of the particular country is not reached
during a given fiscal year, the numerical limit for that nationality for the
following fiscal year shall be increased by the amount of numbers that were
unused. Any unused numbers out of the amount allocated for that nationality
for the last of the 5 successive fiscal years will carry forward into the sixth fiscal
year (Fiscal Year 2013, for Iraqis; Fiscal Year 2014, for Afghans), but any such
numbers remaining unused after the sixth fiscal year will not carry forward into
the seventh fiscal year.


9 FAM 42.32(D)(11) N7 ARE SPOUSES AND
CHILDREN QUALIFIED?
(CT:VISA-1171; 03-19-2009)
a. The derivative spouse and minor, unmarried children of the principal applicant
may be included in the case and do not count against the cap of special
immigrant visas (SQ1s) for that nationality each fiscal year. They may
accompany the principal applicant or follow-to-join the principal.
b. A spouse or child is also eligible if the principal alien had a petition approved by
the Secretary of Homeland Security, but the petition was revoked or terminated
after its approval due to the death of the petitioning alien.


9 FAM 42.32(D)(11) N8 HOW ARE PETITIONS
FILED?
(CT:VISA-1171; 03-19-2009)
a. The elements below must be established by approval of the chief of mission,
Embassy Baghdad or Embassy Kabul, as applicable, or the COMs designee
before the petition can be forwarded to U.S. Citizenship and Immigration
Services (USCIS):
(1) ) Risk assessment of the alien establishing that the alien has experienced,
or is experiencing, an ongoing serious threat as a consequence of his or her
employment by the U.S. Government; and
(2) An independent review of records maintained by the U.S. Government or


the hiring organization or entity that confirms the aliens employment and
faithful and valuable service to the U.S. Government.
b. Applicants must file the petition directly with the U.S. Citizenship and
Immigration Services (USCIS) Nebraska Service Center for adjudication along
with all required evidence. USCIS will contact the applicant directly should any
questions or need for further documentation be required. Posts have no
authority to adjudicate these petitions. The approved Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant will be sent through the National
Visa Center (NVC) to designated posts for adjudication.


9 FAM 42.32(D)(11) N9 APPROVAL OF PETITION
UNDER INA 204
(CT:VISA-1171; 03-19-2009)
The approval of a petition under INA 204 (8 U.S.C. 1154) is considered to
establish prima facie entitlement to status, and the qualifications of the alien
beneficiary are presumed to exist. Unless you have specific, substantial evidence
of either misrepresentation in the petition process or facts unknown to USCIS at
the time of petition approval or to the chief of mission, Embassy Baghdad or
Embassy Kabul, as applicable, at the time of the approval described in 9 FAM
42.32(d)(11) N8 a, you generally would have no reason to return the petition to
USCIS. If posts have further questions, contact the Post Liaison Division
(CA/VO/F/P).


9 FAM 42.32(D)(11) N10 IMMEDIATE INTENT TO
IMMIGRATE
(CT:VISA-2044; 10-16-2013)
Special immigrant status (SQ1) was not designed for use as an insurance policy
to protect an alien against the possibility of political or economic vicissitudes in the
future. Nor was it the intent of Congress that the principal alien obtain SQ1 solely
to facilitate the entry of dependents into the United States when it is the principal
aliens intent to return abroad to resume employment with the U.S. Government.
Visas issued under section 1244 (except for conversion cases discussed in 9 FAM
42.32(d)(11) N12, below) or section 602(b) should have a validity period of six
months. Before issuing a visa, you must require that the applicant submit a letter
indicating that he or she plans to resign the position he or she holds, plans to
permanently separate from her or his position abroad, and intends to immigrate to
the United States within the six month validity of the immigrant visa (IV). If the
applicant does not intend to permanently resign his or her position and immigrate
to the United States to reside, return the petition to USCIS for revocation.


9 FAM 42.32(D)(11) N11 SPECIAL PROVISIONS
(CT:VISA-1171; 03-19-2009)
a. Section 1244(d) of Public Law 110-181 and section 602(b)(4) of Division F,
Title VI, of Public Law 111-8 provide that neither the Secretary of State nor the
Secretary of Homeland Security may charge an alien who meets the criteria in
9 FAM 42.32(d)(11) N2 any U.S. Government fee in connection with an
application for, or issuance of, a special immigrant visa (SIV). Note that an
alien whose SIV status is based on conversion of a petition from SI1 to SQ1
status (see 9 FAM 42.32(d)(11) N12) must pay such fees.
b. Section 1244(d) and section 602(b)(4) further provide that the Secretary of
State must make a reasonable effort to ensure that aliens who are issued SIVs
under either section 1244 or section 602(b) are provided with the appropriate
series Iraqi or Afghan passport, as applicable, necessary to enter the United
States. Posts are reminded of the waiver provisions of 22 CFR 42.2(g), and are
encouraged to contact CA/VO/F/P if it is not practical for an applicant to await
passport issuance.


9 FAM 42.32(D)(11) N12 CASES CONVERTED
FROM SPECIAL IMMIGRANT TRANSLATOR OR
INTERPRETER (SI1) TO SPECIAL IMMIGRANT
STATUS (SQ1)
(CT:VISA-1171; 03-19-2009)
You may encounter a visa application for a principal alien whose approved petition
for SI1 status under section 1059 of Public Law 109-163, as amended, has been
converted to an approved petition for SQ1 status under section 1244 of Public Law
110-181, as amended. In authorizing the conversion of these petitions when a
visa is not immediately available with respect to SI1 status, Congress exempted
the self-petitioning alien from the qualification requirements for SQ1 status other
than the numerical limitations. In reviewing the qualifications of a principal alien
whose petition has been converted from SI1 to SQ1, you must consider the criteria
outlined in 9 FAM 42.32(d)(10) N2, not those found in 9 FAM 42.32(d)(11) N2, to
the extent that they differ. Unless you have specific, substantial evidence of either
misrepresentation in the petition process or facts unknown to USCIS at the time of
petition approval indicating that the alien does not meet the criteria for SI1 status
listed in 9 FAM 42.32(d)(10) N2, you generally would have no reason to return the
petition to USCIS. Note that, in the case of a national of Afghanistan whose
petition has been converted from SI1 to SQ1 status, you may not return the
petition to USCIS based only on a lack of Iraqi nationality or citizenship since
Afghan nationality is a qualification ground listed in 9 FAM 42.32(d)(10) N2. The
conversion provision did not authorize a fee waiver. An individual whose case is


converted from 1059 to 1244 must pay all required fees. SQ1 visas issued in
converted cases are to be valid for six months.




9 FAM 42.32(E)
FIFTH PREFERENCE-EMPLOYMENT-
CREATION IMMIGRANTS
(CT:VISA-1930; 10-09-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(E) RELATED STATUTORY
PROVISIONS
(CT:VISA-1930; 10-09-2012)
See INA 203(b)(5) (8 U.S.C. 1153(b)(5)), Section 610 of Public Law 102-395, and
Section 548 of Public Law 111-83.
INA 203(b)(5)
b. Preference Allocation for Employment-Based Immigrants. - Aliens subject to
the worldwide level specified in section 201(d) for employment-based immigrants
in a fiscal year shall be allotted visas as follows:
(5) Employment creation. -
(A) In general. - Visas shall be made available, in a number not to exceed 7.1
percent of such worldwide level, to qualified immigrants seeking to enter
the United States for the purpose of engaging in a new commercial
enterprise (including a limited partnership)--
(i) in which such alien has invested (after the date of the enactment of
the Immigration Act of 1990) or, is actively in the process of investing,
capital in an amount not less than the amount specified in
subparagraph (C), and
(ii) which will benefit the United States economy and create full-time
employment for not fewer than 10 United States citizens or aliens
lawfully admitted for permanent residence or other immigrants lawfully
authorized to be employed in the United States (other than the
immigrant and the immigrant's spouse, sons, or daughters).
(B) Set-aside for targeted employment areas.-
(i) In general. - Not less than 3,000 of the visas made
available under this paragraph in each fiscal year shall be reserved for
qualified immigrants who invest in a new commercial enterprise
described in subparagraph (A) which will create employment in a
targeted employment area.




(ii) Targeted employment area defined. - In this paragraph, the term
targeted employment area means, at the time of the investment, a
rural area or an area which has experienced high unemployment (of at
least 150 percent of the national average rate).
(iii) Rural area defined. - In this paragraph, the term rural area means
any area other than an area within a metropolitan statistical area or
within the outer boundary of any city or town having a population of
20,000 or more (based on the most recent decennial census of the
United States).
(C) Amount of capital required.
(i) In general. - Except as otherwise provided in this subparagraph, the
amount of capital required under subparagraph (A) shall be
$1,000,000. The Attorney General, in consultation with the Secretary
of Labor and the Secretary of State, may from time to time prescribe
regulations increasing the dollar amount specified under the previous
sentence.
(ii) Adjustment for targeted employment areas.- The Attorney General
may, in the case of investment made in a targeted employment area,
specify an amount of capital required under subparagraph (A) that is
less than (but not less than 1/2 of) the amount specified in clause (i).
(iii) Adjustment for high employment areas.-In the case of an investment
made in a part of a metropolitan statistical area that at the time of the
investment
(I) is not a targeted employment area, and
(II) is an area with an unemployment rate significantly below the
national average unemployment rate, the Attorney General may
specify an amount of capital required under subparagraph (A)
that is greater than (but not greater than 3 times) the amount
specified in clause (i).
(D) Full-time employment defined.--In this paragraph, the term 'full-time
employment means employment in a position that requires at least 35
hours of service per week at any time, regardless of who fills the position.


Section 610, Public Law 102-395 (Establishing INA 203(b)(5)(B))
SEC. 610. PILOT IMMIGRATION PROGRAM-
(a)Of the visas otherwise available under section 203(b)(5) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the
Attorney General, shall set aside visas for a pilot program to implement the
provisions of such section. Such pilot program shall involve a regional center in


the United States for the promotion of economic growth, including increased
export sales, improved regional productivity, job creation, and increased
domestic capital investment.
(b) For purposes of the pilot program established in subsection (a), beginning on
October 1, 1992, but no later than October 1, 1993, the Secretary of State,
together with the Attorney General, shall set aside 300 visas annually for five
years to include such aliens as are eligible for admission under section
203(b)(5) of the Immigration and Nationality Act and this section, as well as
spouses or children which are eligible, under the terms of the Immigration and
Nationality Act, to accompany or follow to join such aliens.
(c) In determining compliance with section 203(b)(5)(A)(iii) of the Immigration
and Nationality Act, and notwithstanding the requirements of 8 CFR 204.6, the
Attorney General shall permit aliens admitted under the pilot program described
in this section to establish reasonable methodologies for determining the
number of jobs created by the pilot program, including such jobs which are
estimated to have been created indirectly through revenues generated from
increased exports resulting from the pilot program.
Section 548, Public Law 111-83 (Amending Public Law 102-395)
SEC. 548. Section 610(b) of the Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note)
is amended by striking for 15 years and inserting until September 30, 2012.


Section 1, Public Law 112-176 (Amending Public Law 102-395)
SEC. 1. Section 610 of the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is
amended
(1) by striking pilot each place such term appears; and
(2) in subsection (b), by striking until September 30, 2012


9 FAM 42.32(E) RELATED REGULATORY
PROVISIONS
(CT:VISA-1460; 07-30-2010)
22 CFR 42.32(e)
(e) Fifth preference--Employment-creation immigrants--(1) Entitlement to status.
An alien shall be classifiable as a fifth preference employment-creation
immigrant if the consular officer has received from DHS an approved petition to
accord such status, or official notification of such an approval, and the consular
officer is satisfied that the alien is within the class described in INA 203(b)(5).


(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or
not named in the petition, the spouse or child of an employment-based
fifth preference immigrant, if not otherwise entitled to an immigrant status
and the immediate issuance of a visa, is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary of
the petition.




9 FAM 42.32(E)
NOTES
(CT:VISA-1930; 10-09-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.32(E) N1 ENTITLEMENT TO STATUS
(CT:VISA-1019; 09-12-2008)
An alien may qualify as an employment creation immigrant and may be entitled to
employmentbased fifth preference status if the:
(1) Alien seeks to enter the United States to create a new commercial
enterprise;
(2) Commercial enterprise was established by the alien;
(3) Alien made the investment after November 29, 1990, or the alien is
actively in the process of investing;
(4) Capital invested is at least $1,000,000 (or $500,000 in targeted
employment areas) (see 9 FAM 42.32(e) N6); and
(5) Enterprise benefits the U.S. economy and creates fulltime employment for
not fewer than 10 U.S. citizens or aliens lawfully authorized to be employed
in the United States (excluding the investor and the investors spouse or
children).


9 FAM 42.32(E) N2 LABOR CERTIFICATION /
PETITION REQUIREMENTS
(CT:VISA-1460; 07-30-2010)
Investors are not subject to the labor certification requirements of INA
212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)). The alien must, however, be the
beneficiary of an approved employmentbased fifth preference petition filed with
the Department of Homeland Security (DHS). Alien entrepreneurs must submit
petitions to the DHS Center having jurisdiction over the area in which the
commercial enterprise is doing business, not in the area where the enterprise is
established.


9 FAM 42.32(E) N3 DEFINITIONS


9 FAM 42.32(e) N3.1 Defining Capital
(CT:VISA-1864; 08-29-2012)
DHS regulations define capital as cash, equipment, inventory, other tangible
property, cash equivalents, and indebtedness secured by assets owned by the
alien entrepreneur, if the alien entrepreneur is personally and primarily liable and
that the assets of the new commercial enterprise upon which the petition is based
are not used to secure any of the indebtedness. All capital must be valued at fair
market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful
means (such as criminal activities) are not considered capital.

9 FAM 42.32(e) N3.2 Defining Commercial Enterprise
(CT:VISA-1864; 08-29-2012)
a. DHS regulations define commercial enterprise as any for-profit activity formed
for the ongoing conduct of lawful business including, but not limited to, a sole
proprietorship, partnership (whether limited or general), holding company, joint
venture, corporation, business trust, or other entity which may be publicly or
privately owned.
b. This definition includes a commercial enterprise consisting of a holding
company and its wholly owned subsidiaries, provided that each such subsidiary
is engaged in a for profit activity formed for the ongoing conduct of a lawful
business. This definition does not include noncommercial activities such as
owning and operating a personal residence.


9 FAM 42.32(E) N4 ESTABLISHING COMMERCIAL
ENTERPRISE
(CT:VISA-1460; 07-30-2010)
Criteria for establishing a new commercial enterprise is as follows:
(1) Creation of an original business;
(2) Purchase of an existing business and simultaneous or subsequent
restructuring or reorganization such that a new commercial enterprise
results; or
(3) Expansion of an existing business through the investment of the required
amount, so that a substantial change in the net worth or number of
employees or both results from the investment of capital.
(a) In general, substantial change means a 40 percent increase in the net
worth, or the number of employees (but not less than 20), so that the
new net worth, or number of employees, amounts to at least 140
percent of the pre-expansion net worth or number of employees or


both.
(b) If the new commercial enterprise is a holding company, the full
requisite amount of capital must be made available to the businesses
most closely responsible for creating the employment on which the
petition is based.
(c) In order for a petitioner to be considered to have established a new
commercial enterprise, the petitioner must have had a hand in its
actual creation. For example, signing on as a new partner, subsequent
to an organization's creation, neither makes such partner responsible
for the original creation of the commercial enterprise nor does that
automatically constitute substantial change in the enterprise, unless
the other requirements are met as well.


9 FAM 42.32(E) N5 TARGETED EMPLOYMENT
AREAS
(CT:VISA-1864; 08-29-2012)
Of the 10,000 numbers allotted annually for employmentbased fifth preference
applicants, not less than 3,000 of the visas made available may be reserved for
qualified immigrants whose investment will create employment in a targeted
employment area.

9 FAM 42.32(e) N5.1 Defining Targeted Employment
Area
(TL:VISA-54; 02-28-1992)
The INA defines targeted employment area as an area that at the time of the
investment was a rural area or an area that has experienced high unemployment
(of at least 150 percent of the national average rate).

9 FAM 42.32(e) N5.2 Defining Rural Area
(TL:VISA-54; 02-28-1992)
The INA defines rural area as any area other than an area within a metropolitan
statistical area or within the outer boundary of any city or town having a
population of 20,000 or more (based on the most recent U.S. decennial census).


9 FAM 42.32(E) N6 CAPITAL REQUIRED


9 FAM 42.32(e) N6.1 General
(CT:VISA-1864; 08-29-2012)
In general, the capital required for an alien investor must be $1,000,000.
However, the Secretary of the Department of Homeland Security, in consultation
with the Secretaries of State and Labor, may, from time to time, prescribe
regulations increasing this amount.

9 FAM 42.32(e) N6.2 Adjustment for High Employment
Areas
(CT:VISA-674; 01-14-2005)
The Secretary of the Department of Homeland Security may specify an amount of
capital required which is greater than the specified $1,000,000 (but not greater
than $3,000,000) if the investment made is in a part of a metropolitan statistical
area that at the time of the investment is:
(1) Not a targeted employment area; and
(2) An area with an unemployment rate significantly below the national
average unemployment rate.

9 FAM 42.32(e) N6.3 Adjustment for Targeted
Employment Areas
(CT:VISA-1019; 09-12-2008)
In the case of an alien investing in a targeted area, the Secretary of the
Department of Homeland Security (DHS) may specify an amount of capital
required which is less than the specified $1,000,000 (but not less than $500,000).

9 FAM 42.32(e) N6.4 Current Requirement
(CT:VISA-1864; 08-29-2012)
DHS has set the required investment at $1,000,000 for high employment areas
and at $500,000 for targeted employment areas.

9 FAM 42.32(e) N6.5 Placing the Capital at Risk
(CT:VISA-1019; 09-12-2008)
To qualify toward the amount of capital needed under the statutory requirements,
money or assets must be placed at risk and made available to the business most
directly responsible for the creation of the employment opportunities. For
example, money or assets used as reserve funds, as a means to facilitate a debt
arrangement, or as promissory notes not due in substantial part within the two-


year conditional period (see 9 FAM 42.32(e) N12) do not constitute a qualifying
contribution of capital toward the amount required for an alien investor.
Promissory notes, however, may constitute evidence of capital if they are due in
substantial part prior to the end of the period. Until such time as an alien
completes payments on such a promissory note, they may not enter into a
redemption agreement with the new commercial enterprise. Further, if the new
commercial enterprise is a holding company, the capital must be available to the
business(es) most closely responsible for creating the employment upon which the
petition is placed.


9 FAM 42.32(E) N7 IMMIGRANT INVESTOR
PILOT PROGRAM
(CT:VISA-1930; 10-09-2012)
Section 610 of Public Law 102-395, as amended by Public Law 111-83 and further
amended by Public Law 112-176, modified INA 203(b)(5) (8 U.S.C. 1153(b)(5))
by creating a pilot program (set to expire on September 30, 2012), which sets
aside up to 3,000 immigrant visas annually for aliens who make qualifying
investments in commercial enterprises located in regional centers in the United
States. These regional centers will promote economic growth, including increased
sales, improved regional productivity, job creation, and increased domestic capital
investment. Under current law, you must cease issuing visas under this program
after close of business on September 30, 2015.


9 FAM 42.32(E) N8 REGIONAL CENTER
DEFINED
(CT:VISA-674; 01-14-2005)
DHS regulations (8 CFR 204.6(e)) define regional center as any economic unit,
public or private, which is involved with the promotion of economic growth,
including increased export sales, improved regional productivity, job creation, and
increased capital investment. This can include entities ranging from a state
government agency to a consortium of exporters, specifically an entity benefiting a
particular geographic region of the United States. If the new commercial
enterprise is engaged indirectly or directly in lending money to job-creating
businesses, such job-creating businesses must be located within the geographic
limits of the regional center to help improve regional productivity. In addition, to
be eligible for the reduced minimal capital requirement, such a money-lending
enterprise may only lend money to businesses located within targeted areas.


9 FAM 42.32(E) N9 PETITION REQUIREMENTS
FOR INVESTOR VISA PILOT PROGRAM
(CT:VISA-1864; 08-29-2012)
Aliens petitioning as investors under the Investor Visa Pilot Program must
demonstrate the following:
(1) ) The investment is within a DHS-approved regional center;
(2) ) The investment will create 10 or more jobs;
(3) ) There is an actual commitment of the required capital in the
commercial enterprise;
(4) ) The capital invested was lawfully gained;
(5) ) The investment is bona fide; and
(6) He or she will play an active role in the day-to-day managerial control or in
the job policy formulation.
NOTE: If the enterprise is a limited partnership, U.S. Citizenship and
Immigration Services (USCIS) has determined that investment in a limited
partnership will meet the active investment requirement of the regulations
without the need for further involvement as long as the partnership
agreement permits active involvement by the limited partners.


9 FAM 42.32(E) N10 MEETING THE JOB
CREATION REQUIREMENT
(TL:VISA-183; 12-18-1998)
Aliens under the pilot program meet the requirement of job creation by
establishing reasonable methodologies for determining the number of jobs
created, including such jobs created indirectly through revenues generated from
increased exports resulting from the investment. Such methodologies may
include:
(1) Multiplier tables;
(2) Feasibility studies;
(3) Analyses of foreign and domestic markets for goods or services exported;
or
(4) Economically or statistically valid forecasting devices which indicate the
likelihood that the business will result in increased employment.


9 FAM 42.32(E) N11 SPOUSE AND CHILDREN


(TL:VISA-54; 02-28-1992)
The spouse, or the child of a marriage which existed at the time of the principal
aliens admission into the United States, is entitled to derivative status and may
accompany or follow-to-join the principal applicant. A spouse or child acquired
subsequent to the principal aliens admission is not entitled to derivative status.


9 FAM 42.32(E) N12 CONDITIONAL RESIDENT
STATUS
(CT:VISA-1864; 08-29-2012)
Alien investors and the derivative family members will be admitted to the United
States in conditional immigrant status for two years. After two years, the investor
and his family must petition for the removal of the condition within a 90-day
period before the second anniversary of the granting of conditional permanent
residence. DHS will then determine whether the enterprise was established and in
continuous operation during the applicable period. If so, the alien and derivative
family members will be granted permanent residence.






9 FAM 42.33
DIVERSITY IMMIGRANTS
(CT:VISA-1481; 08-27-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.33 RELATED STATUTORY
PROVISIONS
(CT:VISA-1481; 08-27-2010)

See INA 203(c) (8 U.S.C. 1153(c)), INA 204(a)(1)(I)(ii) (8 U.S.C.
1154(a)(1)(I)(ii)), Section 1 of Public Law 105-360, Section 636 of Public
Law 104-208, Public Law 106-570, Public Law 107-56 and Section 422(c) of
Public Law 107-56.


INA 203(c)
c. Diversity immigrants
(1) In general
Except as provided in paragraph (2), aliens subject to the
worldwide level specified in section 1151 (e) of this title for
diversity immigrants shall be allotted visas each fiscal year as
follows:
(A) Determination of preference immigration
The Attorney General shall determine for the most recent
previous 5-fiscal-year period for which data are available, the
total number of aliens who are natives of each foreign state and
who
(i) were admitted or otherwise provided lawful permanent
resident status (other than under this subsection) and
(ii) were subject to the numerical limitations of section 1151
(a) of this title (other than paragraph (3) thereof) or who
were admitted or otherwise provided lawful permanent
resident status as an immediate relative or other alien
described in section 1151 (b)(2) of this title.
(B) Identification of high-admission and low-admission regions and
high-admission and low-admission states The Attorney General
(i) shall identify




(I) each region (each in this paragraph referred to
as a high-admission region) for which the total of
the numbers determined under subparagraph (A) for
states in the region is greater than 1/6 of the total of
all such numbers, and
(II) each other region (each in this paragraph referred to
as a low-admission region); and
(ii) shall identify
(I) each foreign state for which the number determined
under subparagraph (A) is greater than 50,000 (each
such state in this paragraph referred to as a high-
admission state), and
(II) each other foreign state (each such state in this
paragraph referred to as a low-admission state).
(C) Determination of percentage of worldwide immigration
attributable to high-admission regions The Attorney General shall
determine the percentage of the total of the numbers
determined under subparagraph (A) that are numbers for foreign
states in high-admission regions.
(D) Determination of regional populations excluding high-admission
states and ratios of populations of regions within low-admission
regions and high-admission regions The Attorney General shall
determine
(i) based on available estimates for each region, the total
population of each region not including the population of
any high-admission state;
(ii) for each low-admission region, the ratio of the population
of the region determined under clause (i) to the total of
the populations determined under such clause for all the
low-admission regions; and
(iii) for each high-admission region, the ratio of the population
of the region determined under clause (i) to the total of
the populations determined under such clause for all the
high-admission regions.
(E) Distribution of visas
(i) No visas for natives of high-admission states The
percentage of visas made available under this paragraph
to natives of a high-admission state is 0.
(ii) For low-admission states in low-admission regions Subject
to clauses (iv) and (v), the percentage of visas made




available under this paragraph to natives (other than
natives of a high-admission state) in a low-admission
region is the product of
(I) the percentage determined under subparagraph (C),
and
(II) the population ratio for that region determined under
subparagraph (D)(ii).
(iii) For low-admission states in high-admission regions Subject
to clauses (iv) and (v), the percentage of visas made
available under this paragraph to natives (other than
natives of a high-admission state) in a high-admission
region is the product of
(I) 100 percent minus the percentage determined under
subparagraph (C), and
(II) the population ratio for that region determined under
subparagraph (D)(iii).
(iv) Redistribution of unused visa numbers If the Secretary of
State estimates that the number of immigrant visas to be
issued to natives in any region for a fiscal year under this
paragraph is less than the number of immigrant visas
made available to such natives under this paragraph for
the fiscal year, subject to clause (v), the excess visa
numbers shall be made available to natives (other than
natives of a high-admission state) of the other regions in
proportion to the percentages otherwise specified in
clauses (ii) and (iii).
(v) Limitation on visas for natives of a single foreign state The
percentage of visas made available under this paragraph
to natives of any single foreign state for any fiscal year
shall not exceed 7 percent.
(F) Region defined
Only for purposes of administering the diversity program under
this subsection, Northern Ireland shall be treated as a separate
foreign state, each colony or other component or dependent area
of a foreign state overseas from the foreign state shall be
treated as part of the foreign state, and the areas described in
each of the following clauses shall be considered to be a
separate region:
(i) Africa.
(ii) Asia.




(iii) Europe.
(iv) North America (other than Mexico).
(v) Oceania.
(vi) South America, Mexico, Central America, and the
Caribbean.
(2) Requirement of education or work experience
An alien is not eligible for a visa under this subsection unless the
alien
(A) has at least a high school education or its equivalent, or
(B) has, within 5 years of the date of application for a visa under this
subsection, at least 2 years of work experience in an occupation
which requires at least 2 years of training or experience.
(3) Maintenance of information
The Secretary of State shall maintain information on the age,
occupation, education level, and other relevant characteristics of
immigrants issued visas under this subsection.

INA 204(a)(1)(I)
(I)(i) Any alien desiring to be provided an immigrant visa section 203(c)
may file a petition at the place and time determined by the Secretary of
State by regulation. Only one such petition may be filed by an alien with
respect to any petitioning period established. If more than one petition is
submitted all such petitions submitted for such period by the alien shall
be voided.

(ii)(I) The Secretary of State shall designate a period for the filing of
petitions with respect to visas which may be issued under section
203(c) for the fiscal year beginning after the end of the period.

(II) Aliens who qualify, through random selection, for a visa under section
203(c) shall remain eligible to receive such visa only through the
end of the specific fiscal year for which they were selected.


9 FAM 42.33 RELATED REGULATORY
PROVISIONS
(CT:VISA-962; 05-23-2008)

See 22 CFR 42.33




9 FAM 42.33
NOTES
(CT:VISA-1963; 02-14-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.33 N1 BACKGROUND
(CT:VISA-1478; 08-26-2010)
a. Section 131 of the Immigration Act of 1990 (Public Law 101-649) amended INA
203 (8 U.S.C. 1153) to provide for a new class of immigrants known as
diversity immigrants (DV immigrants). The amendment established an
annual numerical limitation of 55,000 DV immigrants effective for fiscal year
1995 and thereafter. Aliens who are natives of countries determined by the
Attorney General through application of a mathematical formula specified in
INA 203(c)(1)(A) (8 U.S.C. 1153(c)(1)(A)) to be low admission countries may
compete for immigration under this limitation. INA 203(c)(1) (8 U.S.C.
1153(c)(1)) requires a separate registration of all competing aliens for each
fiscal year.
b. INA 203(c)(1)(A) (8 U.S.C. 1153(c)(1)(A)) requires the Attorney General to
determine the actual number of immigrant admissions from each foreign
country for the previous five year period. The formula identifies both high and
low admission regions and high and low admission foreign states. A greater
share of the available visa numbers goes to low admission regions. High
admission states are excluded from the program.
c. In November 1997, Congress passed Public Law 105-100, the Nicaraguan
Adjustment and Central American Relief Act (NACARA). With NACARA,
Congress stipulated that beginning with the 1999 Diversity Immigrant Visa
Program (DV-99), and as long as necessary, up to 5,000 of the 55,000
annually-allocated diversity visas (DV) can be made available for use under the
NACARA program.


9 FAM 42.33 N2 REQUIREMENTS FOR DIVERSITY
IMMIGRANT PROGRAM
(CT:VISA-1478; 08-26-2010)
To qualify under INA 203(c) (8 U.S.C. 1153(c)) as a diversity immigrant, the
following requirements must be met:
(1) ) The alien must be a native of, or chargeable to, a diversity country (see 9


FAM 42.33 N4); and
(2) ) The alien must have at least a high school education or equivalent (see
9 FAM 42.33 N7); or
(3) ) The alien must have, within five years of the date of application for a
diversity immigrant visa under INA 203(c) (8 U.S.C. 1153(c)), at least two
years of work experience in an occupation, which requires at least two
years of training or experience. (See 9 FAM 42.33 N8.)


9 FAM 42.33 N3 DIVERSITY COUNTRIES

9 FAM 42.33 N3.1 Formula
(CT:VISA-910; 10-23-2007)
a. The Attorney General is required to determine total admissions of preference
and immediate relative (IR) immigrants over the most recent five-year period
for which statistics are available, worldwide total, by region, and by individual
foreign state. Using these figures, the Attorney General is to identify both high
admission regions and high admission foreign states. A high admissions region
is a region whose admission total is greater than one-sixth of the worldwide
total. A foreign state whose admissions total is greater than 50,000 is a high
admission foreign state.
b. Using available estimates, the Attorney General must then determine the
population of each of the six regions (excluding the population of any high
admission foreign state) and use those totals to determine the apportionment
of the 55,000 worldwide DV limitations. Quotas for the six regions will be
established. Natives of these regions compete for that portion of the total
established for that region. Any unused portion of a regional quota is
distributed proportionally among the other regions. High admission states are
excluded entirely from the apportionment. No one countrys nationals may
receive more than 7% of the available visas in any one year.

9 FAM 42.33 N3.2 Qualifying Countries
(CT:VISA-910; 10-23-2007)
INA 203(c) (8 U.S.C. 1153(c)) provides that the number of visas made available to
natives of high admission countries is zero. Department regulations, therefore,
prohibit natives of such countries from competition for diversity visas (DV).
Department of Homeland Security (DHS) will determine annually the list of
ineligible countries. The list is subject to change annually.


9 FAM 42.33 N4 NATIVE


9 FAM 42.33 N4.1 Regulatory Definition
(CT:VISA-1478; 08-26-2010)
Native ordinarily means both someone born within a particular country,
regardless of the individual's current country of residence or nationality. "Native"
can also mean someone entitled to be charged to a particular country under the
provisions of INA 202(b) (8 U.S.C. 1152(b)).

9 FAM 42.33 N4.2 Chargeability
(CT:VISA-1555; 09-30-2010)
As stated in the regulatory definition, the normal rules of chargeability apply to
INA 203(c) (8 U.S.C. 1153(c)) immigrants. Many applicants may seek beneficial
treatment from the rules of cross chargeability, as in the following examples:
(1) A spouse or child born in a country, which is not among those for which DV
visas are available, may use the principal registrants chargeability when
they are accompanying or following-to-join;
(2) A child born in a non-qualifying country in which neither parent was born
nor resident at the time of the childs birth, may claim the birthplace of
either parent;
(3) A principal registrant born in a country, which is not among those for which
DV visas are available, and the spouse who was born in a qualifying
country, may be issued DV visas, provided the relationship was established
prior to submitting the entry. In such instances, however, both applicants
are considered principal applicants for the purpose of cross-chargeability
and must be issued visas and apply for admission to the United States
simultaneously.

9 FAM 42.33 N4.3 Errors in Choice of Country of
Chargeability
(CT:VISA-1478; 08-26-2010)
If the entrant chooses the wrong country of chargeability at the time of the initial
entry, the error will generally be disqualifying. However, if a DV applicant chooses
a country of chargeability during DV registration that is within the same
geographic region (one of the six) as the correct country of chargeability, and you
determine that the applicant gained no benefit from his or her error, you may
continue processing the application.


9 FAM 42.33 N5 PETITIONS/APPLICATION


Each year, the Department of State will publish rules for the next fiscal year's DV
program in the Federal Register. Rules for a DV program in any fiscal year
stipulate what information must be included on the DV electronic entry form, such
as name, photo requirement, etc., as well as other requirements for the program
and the DV lottery registration Web site. The Consular Affairs Web site on Visa
Travel remains the best source of information on entry and eligibility requirements
as well as on qualifying countries. Entries lacking the required information or
photos will be rejected by the registration Web site or disqualified at a later date
during processing by the Kentucky Consular Center (KCC) or at post.

9 FAM 42.33 N5.2 Petition/Application Validity

9 FAM 42.33 N5.2-1 General
(CT:VISA-1478; 08-26-2010)
Under INA 204(a)(1)(I)(ii)(II) (8 U.S.C. 1154(a)(1)(I)(ii)(II)), persons registered
as DV immigrants are entitled to apply for visa issuance only during the fiscal year
for which the application was submitted. The petition is valid until midnight of the
last day of the fiscal year for which the petition was submitted. There is no carry-
over of benefit into another year for persons who do not receive a visa during the
fiscal year for which they registered. Following-to-join derivative visas must be
issued during the same fiscal year as that of the principal beneficiary.

9 FAM 42.33 N5.2-2 In Death of Principal Beneficiary and/or
Applicant
(CT:VISA-1768; 10-31-2011)
The death of the principal beneficiary and/or applicant must result in the
automatic revocation of the application. Thereafter, derivative beneficiaries are no
longer entitled to the DV classification.


9 FAM 42.33 N6 REGISTRATION
(CT:VISA-1768; 10-31-2011)
Selected Diversity Visa (DV) entries are processed at the Kentucky Consular
Center (KCC).


We will establish a period for the submission of DV entries of at least 30 days each
fiscal year in which the lottery will be conducted. To ensure wide dissemination of
the information both abroad and in the United States, we will provide timely notice
of the programs rules and the exact dates of the registration period through
publication in the Federal Register and by other methods.

9 FAM 42.33 N6.2 Number of Entries
(CT:VISA-745; 06-09-2005)
a. Only one entry by or for each person is allowed during each registration period.
Submission of more than one entry disqualifies the applicant from registration.
Applicants may be disqualified at any time if more than one entry is discovered.
Applicants may prepare and submit their own entries, or have someone submit
the entry for them.
b. Husband and wife, if otherwise qualified, may each submit one application. If
either is registered, the other is entitled to derivative status.

9 FAM 42.33 N6.3 Form of Submission
(CT:VISA-910; 10-23-2007)
Entries must be submitted electronically during the specified registration period at
the Departments designated Web site.

9 FAM 42.33 N6.4 Registration Process
(CT:VISA-1905; 10-01-2012)
a. Entries received during the designated registration period for the DV program
will be separated into one of six geographic regions. At the end of the
registration period, a computer will randomly select numbers. Within each
region, the first entry randomly selected will be the first case registered, the
second entry selected the second registration, etc. All entries successfully
received during the registration period will have an equal chance of selection
within the respective region.
b. When a case is selected for additional processing, the entrant will be notified
electronically and provided instructions on how to make a formal visa
application. (See 9 FAM 42.33 PN3.3.)


9 FAM 42.33 N6.5 Principal Registrants Under Age 18
(CT:VISA-745; 06-09-2005)
Although there is no minimum age for submission of an application for
registration, the requirement for a high school education or work experience will
effectively disqualify most persons under age 18.

9 FAM 42.33 N6.6 Derivative Status
(CT:VISA-1555; 09-30-2010)
a. Applicants must include on their initial entry their spouse and all natural
children, as well as legally-adopted children and stepchildren, who are
unmarried and under the age of 21 as of the date of the initial entry.
b. By regulation, applicants are not required to include spouses and children who
are already U.S. citizens or Legal Permanent Residents (LPRs) on the
registration. Applicants are nevertheless instructed to include all such family
members in their registration, to ensure that all family members may qualify
for visas in the event they do not have LPR or U.S. citizen status. However, a
failure to include on the registration spouses and children who are in fact U.S.
citizens or Legal Permanent Residents (LPRs) cannot be used as grounds for
denial.
c. You must deny the applications of registrants who list on their Form DS-230,
Application for Immigrant Visa and Alien Registration, or their Form DS-260,
Online Application for Immigrant Visa and Alien Registration, a spouse or child
who was not included in their initial entry, unless such spouse or child was
acquired subsequent to submission of qualifying DV entry. The spouse of a
principal alien, if acquired after registration, and prior to the principal aliens
admission, or the child of a principal alien, if the child was born after
registration or is the issue of a marriage which took place after registration and
prior to the principal aliens admission to the United States, although not
named on an application, is entitled to derivative DV status.
d. If post believes a case merits issuance despite apparent failure to comply with
this instruction, post can submit the case for an advisory opinion (AO) to the
Advisory Opinions Division (CA/VO/L/A).


9 FAM 42.33 N7 HIGH SCHOOL EDUCATION OR
EQUIVALENT
(CT:VISA-1768; 10-31-2011)
The consular office must adjudicate the applicants qualifications under this
requirement. In order to register for the DV program, the alien need not prove


that this requirement is met. The applicant must, however, meet this requirement
at the time of visa application.

9 FAM 42.33 N7.1 Definitions
(CT:VISA-910; 10-23-2007)
The Departments interpretation of the term high school education or its
equivalent means successful completion of a:
(1) ) Twelve-year course of elementary and secondary study in the
United States; or
(2) Formal course of elementary and secondary education comparable to
completion of 12 years elementary or secondary education in the United
States. Because a United States high school education is sufficient in itself
to qualify a student to apply for college admission, in order for a foreign
education to be equivalent to a United States education, it should be
sufficient to allow a student to apply for college admission without further
education. Vocational degrees that are not considered a basis for further
academic study will not be considered equivalent to United States high
school education.

9 FAM 42.33 N7.2 Education Requirements
(CT:VISA-910; 10-23-2007)
We interpret the phrase high school education or its equivalent to apply only to
formal courses of study. Equivalency certificates (such as the G.E.D.) are not
acceptable. To qualify, an alien must have completed a 12-year course of
elementary and secondary education in the United States or a comparable course
of study in another country. Evidence might consist of a certificate of completion
equivalent to a United States diploma, school transcripts, or other evidence issued
by the person or organization responsible for maintaining such records, which
specify the completed course of study.

9 FAM 42.33 N7.3 Education Evaluation
(CT:VISA-1555; 09-30-2010)
a. Each post needs to determine what course of study is equivalent to a high
school education or its equivalent in the host country. Previously, posts were
provided with a guidebook that provided information on high school equivalency
country by country. That guidebook ("Foreign Education Credentials Required)
is no longer in print and is not available in updated format. You should not rely
on it for your evaluation of high school credentials. You should make use of the
resources found in your Public Diplomacy (PD) section to determine comparable
courses of study in the host country that would meet the definition of a high


school education or its equivalent. Contacts in the host countrys Ministry of
Education may also be of help. If you have questions about certificates and
diplomas, you should consult with your public diplomacy section, including
EducationUSA advisors and locally engaged staff, as they are valuable
resources in evaluating local education systems. PD personnel advise
prospective students and evaluate their educational backgrounds and have
experience with and knowledge of local schools. To determine the authenticity
of any particular document, you will need to work with your Fraud Prevention
staff to develop expertise in making that determination. Interviewing officers
may wish to consult with other posts when in doubt about the authenticity of
educational certificates from countries outside their consular district.
b. A DV refusal must be based on evidence that the alien did not in fact obtain the
required degree and not on your assessment of the alien's knowledge level.
You may not administer an exam, either oral or written, to test an applicants
basic knowledge in order to determine whether they have the equivalent of a
U.S. high school education. You may not refuse a DV applicant solely on the
basis of your analysis of the applicant's basic knowledge. Doubts about the
applicants claimed educational level raised by your interview, however, may
lead you to investigate the authenticity of the educational credentials claimed
by the DV applicant.


9 FAM 42.33 N8 WORK EXPERIENCE

9 FAM 42.33 N8.1 No Labor Certification
(CT:VISA-910; 10-23-2007)
The labor certification requirement of INA 212(a)(5) (8 U.S.C. 1182(a)(5)) does
not apply to applicants applying as DV immigrants. Applicants, however, who do
not meet the education requirement, must meet the work experience requirement
of two years of experience in an occupation which requires at least two years
training or experience within the five-year period immediately prior to application.

9 FAM 42.33 N8.2 Work Experience Evaluation
(CT:VISA-910; 10-23-2007)
If an applicant does not have the equivalent of a high school education, you will
evaluate work experience. You must use the Department of Labors O*Net OnLine
database to determine qualifying work experience. (See 9 FAM 42.33 PN5.1 -
PN5.2.) All applicants qualifying for a DV on the basis of their work experience
must, within the past 5 years, have two years of experience in an occupation that
is classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher.


9 FAM 42.33 N9 INELIGIBILITY GROUNDS
(CT:VISA-1090; 10-23-2008)
Applicants who establish that they qualify for DV immigrant visa classification are
subject to all grounds of ineligibility specified in the Immigration and Nationality
Act other than INA 212(a)(5) (8 U.S.C. 1182(a)(5)). (In other words, any
applicant who qualifies for DV immigrant classification is exempt from the labor
certification requirements.) There are no special provisions for a waiver of any
ground of visa ineligibility other than those ordinarily provided in the INA.

9 FAM 42.33 N9.1 Labor Certification Refusals
(CT:VISA-1768; 10-31-2011)
Any applicant for a DV visa who fails to establish that they possess the requisite
qualifications, including a valid entry for participation in the DV program, is
ineligible under INA 212(a)(5)(A)(i) (8 U.S.C. 1182(a)(5)(A)(i)). It is not
appropriate to refuse a DV applicant under INA 212(a)(5)(A)(i) (8 U.S.C.
1182(a)(5)(A)(i)) when a fraud investigation is needed before determining
whether an applicant is qualified for a DV (e.g., if you suspect that the DV
applicant does not possess the requisite education or work experience or if you
suspect that the DV derivative applicant does not possess the requisite relationship
to the DV principal applicant). In those cases, you must refuse the application
under INA 221(g) pending the outcome of a fraud investigation.

9 FAM 42.33 N9.2 INA 221(g) Refusals
(CT:VISA-1963; 02-14-2013)
a. Interviewing officers should verbally stress the importance of quickly
submitting the requested information, preferably within the same month.
When applicable, officers should advise applicants that failure to return
promptly may mean that visa numbers will no longer be available and the
applicant may miss the opportunity to obtain a visa.
b. Posts must prepare a stamp to be placed on refusal letters to DV applicants
refused under 221(g), with the following message:
ATTENTION: UNDER NO CIRCUMSTANCES CAN A VISA BE ISSUED OR AN
ADJUSTMENT OF STATUS OCCUR IN YOUR CASE AFTER SEPTEMBER 30, .
VERY IMPORTANT: BECAUSE OF THE LIMITED NUMBER OF VISAS THAT MAY
BE ISSUED UNDER THIS PROGRAM, VISAS MAY CEASE TO BE AVAILABLE EVEN
BEFORE THIS DATE. THIS IS ESPECIALLY TRUE THE CLOSER TO SEPTEMBER
30 AN APPLICATION OR RE-APPLICATION IS MADE.
c. Cases that are in 221(g) refusal status at the end of the fiscal year may be left
in that status. You do not need to enter an additional refusal (such as
(5)(A)(i)) to close the case.


9 FAM 42.33 N9.3 Public Charge
(CT:VISA-1090; 10-23-2008)
While many categories of immigrants must submit the legally binding Form I-864,
Affidavit of Support Under Section 213A of the Act, the DV category is not one of
them. You can consult 9 FAM 40.41 for standards of processing public charge
issues in immigrant visa (IV) cases that do not involve the I-864, Affidavit of
Support Under Section 213A of the Act.

9 FAM 42.33 N9.4 Waivers
(CT:VISA-1768; 10-31-2011)
Unlike applicants eligible for immigrant visas (IV) under other programs involving
random selection, there are no special provisions for a waiver of any ineligibility
grounds for applicants entitled to DV registration. The regular ineligibility waiver
provisions of the INA, including 212(e), still apply.


9 FAM 42.33 N10 FEE
(CT:VISA-1768; 10-31-2011)
There is no fee for submitting the initial entry for registration in the DV program.
However, those applicants who are selected and apply for DV visas will be required
to pay an IV application processing fee and a DV lottery surcharge at the time of
the formal interview. (See 9 FAM 42.33 N10.1.)

9 FAM 42.33 N10.1 Collection of Fee
(CT:VISA-1768; 10-31-2011)
Section 636 of Public Law 104-208, the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, authorized the Department to collect a fee for the
processing of DV immigrant visas. This fee is in addition to the standard IV
processing fees, and the amount is specified in the Schedule of Fees for Consular
Services. Posts must collect the processing fee at the time of the applicants
formal interview.

9 FAM 42.33 N10.2 Processing Cases to Conclusion
(CT:VISA-910; 10-23-2007)
We can appreciate posts' efforts to prescreen applications allowing unqualified
applicants to withdraw their applications to avoid paying the required fees.
Nevertheless, it is important to process such cases to conclusion and not to simply
allow the candidate to withdraw the application. Instances have arisen where DV
winners who were advised not to make an application at a post abroad have then


entered the United States and requested adjustment of status processing at the
Department of Homeland Security (DHS).


9 FAM 42.33 N11 NUMERICAL CONTROL
(CT:VISA-1768; 10-31-2011)
The Department will have centralized control of the DV numerical limitation. (See
9 FAM 42.51.)




9 FAM 42.33
PROCEDURAL NOTES
(CT:VISA-1905; 10-01-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.33 PN1 REGISTRATION OF
APPLICANTS
(CT:VISA-1463; 08-03-2010)
Only those entries which meet the eligibility requirements specified in 22 CFR
42.33(a)(1), and which are received during the time period specified by the
Department for each fiscal year, will be considered for registration for immigrant
visa (IV) issuance under INA 203(c) (8 U.S.C. 1153(c)).


9 FAM 42.33 PN2 ENTRIES LACKING REQUIRED
INFORMATION

9 FAM 42.33 PN2.1 Derivatives
(CT:VISA-1768; 10-31-2011)
Entries must include the name, photograph, date and place of birth of the
applicants spouse and all natural children, as well as all legally-adopted and
stepchildren, who are unmarried and under the age of 21, even if they are no
longer legally married to the childs parent, and even if the spouse or child does
not currently reside with the applicant and/or will not immigrate with such
applicant. By regulation, applicants are not required to include spouses and
children who are already U.S. citizens or Legal Permanent Residents (LPRs) on the
registration. However, applicants are instructed to include all such family
members in their registration, to ensure that all family members may qualify for
visas in the event they do not have LPR or U.S. citizen status. Married children
and children 21 years or older cannot qualify for a Diversity Visa (DV) on the basis
of the parents application. Visa applications lacking all required information will be
refused.


9 FAM 42.33 PN2.2 Photos
(CT:VISA-1768; 10-31-2011)
Photo specifications are detailed in the annual Diversity Visa (DV) Bulletin and also
posted at the Departments travel.state.gov Web site. The Department will
disqualify entries lacking the required photos or including invalid photos. If you
determine that the photo on the entry is not that of the applicant, you may pursue
a refusal under INA 212 (a)(6)(C) (8 U.S.C. 1182 (a)(6)(C)). Otherwise, refuse
the applicant under INA 212 (a)(5)(a) (8 U.S.C. 1182 (a)(5)(a)). A copy of the
entry photograph is included in each case file, and is also available through the
Consular Consolidated Database (CCD) under the Immigrant & Diversity section,
DVIS Applicant report.


9 FAM 42.33 PN3 PLACE OF REGISTRATION
(CT:VISA-1463; 08-03-2010)
Only entries submitted electronically at our specified DV Web site for each fiscal
year will be accepted for registration.

9 FAM 42.33 PN3.1 Registration and Retention of
Original Entries
(CT:VISA-1905; 10-01-2012)
The Kentucky Consular Center (KCC) registers approximately 105,000 applicants
(both principals and dependents) each year. The KCC will notify posts of the
number of applicants from their DV-processing area who were selected, broken
down by country of residence. The Department will maintain a computer-
generated master list of registered applicants. The list is not publicly released.

9 FAM 42.33 PN3.2 Chronological Registration and
Determining of Rank Numbers
(CT:VISA-754; 07-27-2005)
a. All entries received within the stipulated time period are sorted into six
geographic regions, and each entry is assigned an individual number. A
computer program especially created for the DV program randomly selects
cases from among the entries received for each of the geographic regions.
Within each region, the first entry randomly selected will be the first case
registered, the second entry selected, the second registration, etc. The
selected entries for each region will have a rank order number consisting of two
letters followed by eight digits, i.e., AF00000925. The letter codes are:


AF Africa
AS Asia
OC Oceania
EU Europe;
NA North America
SA South America, Central America, and the Caribbean.

b. Each month visa numbers will be allocated to applicants who have been
reported documentarily qualified and are within the applicable rank cut-off for
that month. Applicants are considered documentarily qualified when the
registrant has properly completed and submitted to the KCC all required forms.

9 FAM 42.33 PN3.3 Registrations
(CT:VISA-1905; 10-01-2012)
a. If a case has been registered, the entrant will be notified electronically via
Entrant Status Check. The applicant must then complete the following
documents and submit the documents to KCC along with two photographs:
(1) Form DSP-122, Supplemental Registration for the Diversity Immigrant Visa
Program; and
(2) Form DS-230, Application for Immigrant Visa and Alien Registration Part I
and II. If the applicant will complete Form DS-260, Online Application for
Immigrant Visa and Alien Registration, instructions will be provided to the
entrant.
b. The KCC will continue to process the entry until those registered are entitled to
make a formal application for visa issuance at a U.S. consular office abroad, or
an adjustment of status with the Department of Homeland Security (DHS) in
the United States.


9 FAM 42.33 PN4 CREATION OF IMMIGRANT
VISA FILE
(CT:VISA-754; 07-27-2005)
The KCC will create a DV immigrant visa (IV) file on the principal applicant and
qualifying dependents. These files will be shipped to post prior to the visa
interview. In cases where a potentially disqualifying factor has been identified at
the KCC during case creation, a note will be made in the electronic case file. The
file folder will then be stamped KCC FPU Reviewed and a red memorandum


noting the existence of the disqualifying factor will be included in the paper file for
post action.


9 FAM 42.33 PN5 USING O*NET ONLINE TO
DETERMINE WORK EXPERIENCE

9 FAM 42.33 PN5.1 Instructions for Determining the
Applicant's Specific Vocational Preparation (SVP)
Rating
(CT:VISA-1576; 10-04-2010)
a. Log on to the Department of Labors O*Net OnLine Web site;
b. Click on the Find Occupations link;
c. On the Find Occupations screen, enter occupational title, such as, mason,
painter, hairdresser, etc., and click on the Go button. A search results
page appears with a list of various occupation titles that relate to whatever job
title was entered. Click on the link in the Occupation column for the title that
seems appropriate for the DV applicants job experience;
d. A brief description for the job title will appear followed by more detailed data
covering the following areas: tasks, knowledge, skills, abilities, work activities,
work context, job zone, interests, work values, related occupations, and wages
and employment.

9 FAM 42.33 PN5.2 What Specific Vocational
Preparation (SVP) Range Qualifies an Applicants Job
Experience for the Diversity Visa (DV) Program?
(CT:VISA-1463; 08-03-2010)
The O*Net Online database groups job experience into five "job zones." Zone 4
includes all occupations for which more than two years experience on the job is
required. An occupation with a Job Zone 4 range has an SVP range of 7.0 to < 8.0
(7.0 to less than 8.0) and will qualify an applicant for the DV program. Thus, all
applicants qualify for a DV on the basis of their work experience must, within the
past five years, have two years of experience in an occupation that is classified in
a SVP range of 7.0 or higher.


9 FAM 42.33 PN6 PROCESSING DIVERSITY
VISAS (DV) CASES


9 FAM 42.33 PN6.1 Required Forms for Immigrant Visa
(IV) Applicants
(CT:VISA-1905; 10-01-2012)
In order to be considered documentarily qualified, the visa applicant must follow
the electronic instructions and complete and return the Form DSP-122 and Form
DS-230 to KCC. If the applicant will submit the Form DS-260, submission will be
made electronically.

9 FAM 42.33 PN6.2 Immigrant Visa (IV) Appointment
Package
(CT:VISA-1463; 08-03-2010)
Upon receipt from the applicant of properly completed Forms DSP-122,
Supplemental Registration for the Diversity Immigrant Visa Program, and Form
DS-230, Application for Immigrant Visa and Alien Registration or From DS-260,
Online Application for Immigrant Visa and Alien Registration, the KCC will then
transmit the Immigrant Visa (IV) Appointment Package and schedule an
appointment for the applicant. The package consists of the following:
(1) Form DS-230, Application for Immigrant Visa and Alien Registration Part I
and II or instructions for accessing the Form DS-260, Online Application for
Immigrant Visa and Alien Registration; and
(2) Form DS-2053, Medical Examination for Immigrant or Refugee Applicant;
Form DS-3024, Chest X-ray and Classification Worksheet; Form DS-3025,
Vaccination Documentation Worksheet; and Form DS-3026, Medical History
and Physical Examination Worksheet.

9 FAM 42.33 PN6.3 Clearances
(CT:VISA-1905; 10-01-2012)
The KCC conducts Consular Lookout and Support System (CLASS) name checks on
all applicants and submits Visas Eagle Security Advisory Opinion (SAOs) where
required. For applicants determined to require a SAO other than a Visas Eagle, an
electronic note is made in the case record. You must make the final determination
as to whether an SAO is required.

9 FAM 42.33 PN6.4 Following-to-Join Applicants
(CT:VISA-1905; 10-01-2012)
DV applicants are informed in the electronic notification of how to adjust status to
lawful permanent residence in the United States. A principal applicant who has
adjusted status may file Form I-824, Application for Action on an Approved
Application or Petition with U.S. Citizenship and Immigration Services (USCIS)


requesting DHS send the Form I-824, upon its adjudication, to consular posts as
verification of his or her LPR status. Upon receipt of this information, posts must
send any derivative family members the Form DSP-122 and Form DS-230 for
completion (or DS-260 if applicable) and the Immigrant Visa Appointment
Package for completion. Post must notify the KCC of the adjustment of the
principal applicant so that the electronic case can be modified and transmitted to
post to allow visa issuance to the derivative family members. Proof of the
principal applicants adjustment of status must be provided to the KCC. Posts can
then process these cases to conclusion, obtaining additional DV numbers from the
Immigrant Visa Control and Reporting Division (CA/VO/F/I,) as necessary, via
VISAS FROG messages (see 9 FAM Appendix E 300). Spouses and children who
derive status from a DV registration can only obtain visas in the DV category
during the specified Fiscal Year. Applicants cannot follow-to-join after the end of
the Fiscal Year.


9 FAM 42.33 PN7 TRANSFER OF CASES
(TL:VISA-374; 03-20-2002)
Posts are to follow normal IV case transfer procedures when a DV applicant asks
that his or her case be transferred to a different post for processing. (See 9 FAM
42.41 PN3.) DV cases should not be returned to the KCC for forwarding to
another post as this delay may disadvantage the applicant, resulting in loss of
opportunity for the visa interview and visa issuance if there is retrogression in the
rank-order number.



9 FAM 42.41
EFFECT OF APPROVED PETITION
(CT:VISA-985; 07-29-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.41 RELATED STATUTORY
PROVISIONS
(CT:VISA-985; 07-29-2008)

See INA See INA 203(f) (8 U.S.C. 1153(f)) and INA 204 (8 U.S.C. 1154), as
amended, and Public Law No. 109-248 The Adam Walsh Child Protection and Safety
Act (Adam Walsh Act).

INA 203(f)
f. Authorization for issuance

In the case of any alien claiming in his application for an immigrant visa to be
described in section 1151 (b)(2) of this title or in subsection (a), (b), or (c) of
this section, the consular officer shall not grant such status until he has been
authorized to do so as provided by section 1154 of this title.


9 FAM 42.41 RELATED REGULATORY
PROVISIONS
(CT:VISA-985; 07-29-2008)

See 22 CFR 42.41























9 FAM 42.41
NOTES
(CT:VISA-1880; 09-11-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.41 N1 ESTABLISHING RELATIONSHIP
BETWEEN PETITIONER AND ALIEN BENEFICIARY
(CT:VISA-1039; 09-26-2008)
The approval of a petition under INA 204 (8 U.S.C. 1154) is considered to
establish prima facie entitlement to status. The validity of the relationship
between the petitioner and the alien beneficiary, familial or employer and/or
employee, is presumed to exist. Unless you have specific, substantial evidence of
either misrepresentation in the petition process or have facts unknown to
Department of Homeland Security (DHS) at the time of approval, you generally
would have no reason to return the petition to DHS. (See 9 FAM 42.43 Related
Statutory Provisions.)

9 FAM 42.41 N1.1 Classification as Immediate Relative,
Orphan, Amerasian or Widow(er)
(TL:VISA-333; 11-15-2001)
For additional information on classification as an immediate relative under INA
201(b)(2)(A)(i), an orphan as defined in INA 101(b)(1)(F), a widow or widower of
a U.S. citizen eligible under INA 201(b)(2)(A)(i), or an Amerasian eligible under
Public Law 97-359. (See 9 FAM 42.21 Related Statutory Provision and 9 FAM
42.21 Notes.)

9 FAM 42.41 N1.2 Classification as Family-Preference
Immigrant
(CT:VISA-1880; 09-11-2012)
For information on classification as a family-preference immigrant under INA
203(a)(1) - (4), see 9 FAM 42.31 Related Statutory Provisions and 9 FAM 42.31
Notes.


9 FAM 42.41 N1.3 Classification as Employment-
Preference Immigrant
(CT:VISA-1880; 09-11-2012)
For additional information on classification as an employment-based preference
immigrant under INA 203(b)(1) through (4), see 9 FAM 42.32(a) Related
Statutory Provisions; 9 FAM 42.32(b) Related Statutory Provisions; 9 FAM
42.32(c) Related Statutory Provisions; 9 FAM 42.32(d) Related Statutory
Provisions; 9 FAM 42.32(a) Notes; 9 FAM 42.32(b) Notes; 9 FAM 42.32(c) Notes;
and 9 FAM 42.32(d) Notes.

9 FAM 42.41 N1.4 Classification as Employee of U.S.
Government Abroad
(CT:VISA-1880; 09-11-2012)
For additional information on classification as a U.S. Government employee as
described in INA 101(a)(27)(D), see 9 FAM 42.32(d)(2) Related Statutory
Provisions and 9 FAM 42.32(d)(2) Notes.

9 FAM 42.41 N1.5 Classification as Alien Entrepreneur
(CT:VISA-1880; 09-11-2012)
For additional information on classification as an immigrant entrepreneur under
INA 203(b)(5), see 9 FAM 42.32(e) Related Statutory Provisions and see 9 FAM
42.32(e) Notes.


9 FAM 42.41 N2 IMPORTANCE OF FILING
PETITIONS FOR PREFERENCE STATUS
(CT:VISA-1039; 09-26-2008)
Immigrant visa applicants compete on a first-come, first-served basis for the
visa numbers available. Since the filing date of an approved petition may
establish the priority of certain preference applicants, you should encourage the
filing of a petition on behalf of any alien eligible for preference status, and should
not discourage the filing of a petition because the preference category or foreign
state limitation is oversubscribed.


9 FAM 42.41 N3 PETITION FORMS
(CT:VISA-1561; 09-30-2010)
a. Form I-130, Petition for Alien Relative, is used to classify the following as


immediate relatives under INA 201(b) (8 U.S.C. 1151(b)) or as family
preference immigrants under INA 203(a)(1), (2), (3) or (4):
(1) Spouse of a U.S. citizen;
(2) Child of a U.S. citizen;
(3) Parent of an adult (over age 21) U.S. citizen;
(4) Unmarried son or daughter of a U.S. citizen;
(5) Spouse, child, son, or daughter of a permanent resident alien;
(6) Married son or daughter of a U.S. citizen; and
(7) Brother or sister of an adult (over age 21) U.S. citizen.
b. Form I-600, Petition to Classify Orphan as an Immediate Relative, is used to
classify the following as an immediate relative under INA 201(b):
(1) Child to be adopted in the United States by a U.S. citizen; and
(2) Orphan adopted overseas by a U.S. citizen.
c. Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative,
is used to classify a Child in Hague Convention Country to be adopted in the
United States by a U.S. citizen as an immediate relative under INA 201 (b).
(See 9 FAM 42.21 N14.3.)
d. Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, is used to
classify the following as an immediate relative under Public Law 97-359 or
under INA 201(b), or as a special immigrant under INA 203(b)(4) (8 U.S.C.
1153(b)(4)):
(1) Amerasian child, son, or daughter of a U.S. citizen eligible under Public Law
97-359 (see 9 FAM 42.24 Related Statutory Provisions);
(2) ) Widow(er) of a U.S. citizen;
(3) Special immigrant under INA 203(b)(4); and
(4) Spouse or child of abusive citizen or legal permanent resident (see 9 FAM
42.42 N3.2).
e. Form I-140, Immigrant Petition for Alien Worker, is used to classify an alien as
a preference immigrant under INA 203(b)(1), (2) or (3) (see 9 FAM 42.32(c)
Notes):
(1) Priority workers;
(2) Professional holding advanced degree or person of exceptional ability; and
(3) Skilled worker; professional or other worker.
f. Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as
an Employee or Former Employee of the U.S. Government Abroad, is used to
classify an alien for status as a special immigrant as described in INA
101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)). (See 9 FAM 42.32(d)(2) Notes.)


g. Form I-526, Immigrant Petition by Alien Entrepreneur, is used to classify an
alien as a preference immigrant under INA 203(b)(5). (See 9 FAM 42.32(e)
Notes.)
h. No petition is required for the following aliens:
(1) ) Returning residents classified under INA 101(a)(27)(A) (see 9 FAM
42.22 Notes);
(2) Certain former U.S. citizens classified under INA 101(a)(27)(B) (see also 9
FAM 42.23 Related Statutory Provisions); and
(3) Amerasians eligible under section 584(b)(1)(A) of Public Law 100-202 as
amended by Public Law 101-167 and Public Law 101-513. (See 9 FAM
42.24 Related Statutory Provisions.)


9 FAM 42.41 N4 FILING PETITIONS

9 FAM 42.41 N4.1 Proper Filing
(CT:VISA-1039; 09-26-2008)
A properly filed petition must be:
(1) Signed by the petitioner; and
(2) Accompanied by the appropriate Department of Homeland Security (DHS)
fee. (See 8 CFR 103.7.)

9 FAM 42.41 N4.2 Executing Visa Petitions

9 FAM 42.41 N4.2-1 Petitions Executed in the United States
(CT:VISA-1561; 09-30-2010)
a. Petition Form I-130, Petition for Alien Relative, Form I-140, Immigrant Petition
for Alien Worker, and Form I-526, Immigrant Petition by Alien Entrepreneur,
are executed in single copy. A separate petition and fee are required for each
beneficiary. Petitioners should file petitions with the Regional Service Center
having jurisdiction over their place of residence. Separate petitions are not
required for spouses and children entitled to derivative preference status under
INA 203(d) (8 U.S.C. 1153(d)). For all petitions received at the U.S.
Citizenship and Immigration Services offices both in the United States and
overseas, the petitions bear a USCIS receipt number. USCIS maintains records
of the approval of each petition by beneficiary or receipt number. Upon
approval, USCIS will forward the petition by first-class U.S. mail or express
delivery service to the National Visa Center (NVC). However, when the petition
is filed in conjunction with the application for adjustment of status, the petition
may be filed with the USCIS district office having jurisdiction over the


beneficiarys place of residence.
b. Petition Form I-600, Petition to Classify Orphan as an Immediate Relative, is
executed in single copy. The fee paid by the prospective adopting parents for
the Form I-600-A, Application for Advanced Processing of Orphan Petition,
covers the application for the first child and applications for any siblings. A
separate fee is required for petitions filed for unrelated children up to the
number authorized by the Form I-600-A approval. Petitioners may file the
Form I-600 with the USCIS National Benefits Center or at the immigrant visa-
issuing post (or USCIS office abroad) having jurisdiction over the child.
c. Petition Form I-800, Petition to Classify Convention Adoptee as an Immediate
Relative, is executed in single copy. The fee paid by the prospective adopting
parents for the Form I-800-A, covers the application for the first child and
applications for any siblings. A separate fee is required for petitions filed for
unrelated children up to the number authorized by the Form I-800-A approval.
Form I-800-A supplement 1 must also be provided for each adult member of
the household, excluding the applicant and applicants spouse. Petitioner must
always file Form I-800 with the USCIS National Benefits Center. A prospective
adoptive applicant residing outside the United States should generally file Form
I-800-A with the USCIS office abroad having jurisdiction over the applicants
place of foreign residence or with the USCIS office in the United States with
jurisdiction over the proposed place of the child's residence in the United
States.

9 FAM 42.41 N4.2-2 Petitions Executed by U.S. Citizenship and
Immigration Services (USCIS) Abroad
(CT:VISA-1695; 09-19-2011)
a. USCIS officers abroad are authorized to approve Form I-130, Petition for Alien
Relative, for immediate relative status, if the petitioner is a resident of the
country where the USCIS office is located. Petitioners who are not residents
must file petitions with the Domestic Service Center which has jurisdiction over
their place of residence. If a USCIS office is located in a country with
consulates and if that USCIS office will accept petitions by mail, the petitioner
may pay the Form I-130 filing fees at a consulate. The petitioner should
forward the petition, fee receipt, and required documentation directly to the
overseas USCIS office in his country of residence.
b. USCIS officers abroad are authorized to adjudicate Form I-600, Petition to
Classify Orphan as an Immediate Relative, overseas regardless of whether the
United States citizen petitioner is a resident of the country where the USCIS
office is located provided certain conditions are met.
c. USCIS officers abroad may approve Form 1-360, Petition for Amerasian,
Widower(er), or Special Immigrant, if the alien is a resident of that country.
d. For a current list of USCIS offices abroad and their respective areas of


adjudication, see the USCIS Web site. USCIS may accept and adjudicate a
petition for a petitioner not resident abroad if it is in the national interest or it is
established that humanitarian or emergent circumstances exist.

9 FAM 42.41 N4.2-3 Consular Officers Authorized to Approve I-
600 or I-360 Petitions
(CT:VISA-1695; 09-19-2011)
a. Under a longstanding agreement, DHS authorized consular officers assigned to
posts without a USCIS public counter presence to approve the following kinds of
petitions if they are "clearly approvable," and if one of the conditions listed in
section (c) below, is met. Whenever petitions are adjudicated under this
authority, the petitioner and the visa applicant must be physically present in
the district and the beneficiary must be likely to be able to remain in the
country for the time it normally takes to process the visa. The beneficiary need
not be a resident of the consular district.
b. The only petitions covered are:
(1) Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant,
when filed by a widow or widower; and
(2) Form I-600, Petition to Classify Orphan as an Immediate Relative, when
accompanied by an approved Form I-600-A, Application for Advance
Processing of Orphan Petition to accord immediate relative status under
INA 201(b) or family preference status under INA 203(a).
c. The only conditions under which these petitions may be filed at post are:
(1) Whenever petitions are adjudicated under this authority, the petitioner and
the visa applicant must be physically present in the district and the
beneficiary must be likely to be able to remain in the country for the time it
normally takes to process the visa. The beneficiary need not be a resident
of the consular district. You may accept Form I-360 petitions from widows
and widowers of American citizens if these self-petitioners reside in the
consular district. You must require appropriate evidence that the petitioner
has permission to reside in the consular district or, if he/she is a member
of the U.S. military stationed in the country, a copy of the petitioner's
orders; or
(2) Acting on the petition is in the national interest; or
(3) An emergent or humanitarian situation exists, consistent with 9 FAM 42.41
N4.2-5 below.
d. If a petitioner has met one of the requirements in paragraph c above, and you
conclude after reviewing the petition that it is not "clearly approvable," you are
not authorized to deny the petition. Instead, forward the petition, with all
supporting documents, to the appropriate USCIS office with jurisdiction over
that location. (See 9 FAM Appendix N, 201 c.)


e. Adam Walsh Act eligibility to file requirement in Form I-130 cases:
(1) In a Form I-130 case that satisfies the criteria in 9 FAM 42.41 N4.2-3 c,
above, you may not approve a petition until USCIS has conducted a
background check to determine whether the petitioner has been convicted
of a sexual or kidnapping criminal offense against a minor specified in 42
U.S.C. 16911(7), section 111 of the Adam Walsh Child Protection and
Safety Act of 2006 ("Adam Walsh Act"), Public Law 109-248. Otherwise,
the Form I-130 is not clearly approvable. (See 9 FAM 42.41 N4 and 9 FAM
42.41 PN4.) The Adam Walsh Act was made effective on July 27, 2006.
(2) Under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i), a petitioner is not eligible
to file such a petition if convicted of such an offense without a
determination by the Secretary of Homeland Security, in his sole and
unreviewable discretion, that the petitioner poses no risk to the
beneficiary. Because you do not have access to petitioners' criminal
history records, which must be reviewed to establish eligibility to file, it is
necessary for USCIS to conduct this review and report whether processing
of the petition may proceed. Any petition approved by a consular officer
on or after July 27, 2006 is not valid unless and until USCIS has performed
an Adam Walsh check and confirmed that the petition is approvable. (See
9 FAM Appendix N, 201 c.)

9 FAM 42.41 N4.2-4 Marriage of Persons Under the Age of 18
(CT:VISA-1880; 09-11-2012)
a. Many states impose conditions such as a parental consent, a court order,
and/or pregnancy before the state will recognize a marriage in which one or
both intending spouses are under the age of 18. Where the consular officer is
faced with determining the validity of such a marriage for consular approval of
a petition, the case must be considered "not clearly approvable" and submitted
to Department of Homeland Security (DHS) for approval. (See 9 FAM Appendix
N, 201 c.)
b. In cases where the DHS has approved a petition involving such a marriage, and
the consular officer questions its validity but does not believe it necessary to
return the petition directly to DHS pursuant to 22 CFR and 9 FAM 42.43, refer
any questions concerning the validity of the petition to the Office of Legislation,
Regulations, and Advisory Opinions Division (CA/VO/L/A) for an advisory
opinion.
c. See 9 FAM 40.41 N5.2 for the public charge aspects of an immigrant visa case
where the petitioner is under age 18.


9 FAM 42.41 N4.2-5 Adjudicating National Interest, Emergent
Or Humanitarian Cases
(CT:VISA-1039; 09-26-2008)
a. In emergent or humanitarian cases or in cases of national interest, you (as well
as USCIS officers at overseas USCIS offices) may accept and adjudicate a
petition filed by a petitioner who does not reside within your jurisdiction. Such
cases should be quite rare and limited to true emergency circumstances such as
a beneficiary who is a very young child who has unexpectedly lost his or her
caretaker or military or U.S. Government employees facing transfer.
b. You generally should not accept petitions in cases which neither the petitioner
nor beneficiary is a resident in the consular district. If you believe that such a
case qualifies for processing based on humanitarian, emergent, or national
interest grounds, post should seek concurrence from the Public Liaison Division
(CA/VO/F/P) before accepting the petition.

9 FAM 42.41 N4.2-6 Adjudicating Form I-600, Petition to
Classify Orphan as an Immediate Relative
(CT:VISA-881; 05-09-2007)
See 9 FAM 42.21 N12.

9 FAM 42.41 N4.2-7 Adjudicating Exceptional Circumstance I-
130 Cases
(CT:VISA-1695; 09-19-2011)
a. Consular officers assigned to posts with USCIS public counter presence cannot
accept filing or adjudicate the Form I-130, Petition for Alien Relative, and must
refer petitioners instead to USCIS.
b. If a consular section without a USCIS public counter presence encounters an
exceptional circumstance case, then the Consular Chief, or another designated
officer, must receive authorization from the regional USCIS Field Office Director
(or his/her designee) prior to accepting and adjudicating the filing. Post should
contact the appropriate USCIS field office by phone or e-mail, providing the
specifics of the reason for the exception request. USCIS will have discretion to
determine which cases can be processed using the exceptional circumstances
procedures and which petitioners should be directed to file by mail with the
USCIS lockbox in the United States. USCIS may authorize post to accept the
case over the telephone in particularly emergent circumstances but will always
communicate his or her decision via email to the post within 1-3 business days
of receipt of the request for record-keeping purposes.
c. The following are examples of the types of exceptional circumstances where
consular officers should request exceptional authorization from USCIS to accept


I-130 petitions:
(1) U.S. Military deployment or transfer: A U.S. service member overseas
becomes aware of a new deployment or transfer with very little notice.
This should be an exception to the regular relocation process for most
service members.
(2) Medical emergencies: A petitioner or beneficiary is facing an urgent
medical emergency that requires immediate travel. This includes if the
petitioner or beneficiary is pregnant and delaying travel may create a
medical risk or extreme hardship for the mother or child.
(3) ) Threats to personal safety: A petitioner or beneficiary is facing
an imminent threat to personal safety.
(4) Cases close to aging out: A beneficiary is within a few months of aging out
of eligibility.
(5) Cases where the petitioner has recently naturalized: The petitioner and
family have traveled for the immigrant visa interview but the petitioner has
naturalized and the family member(s) require a new, stand-alone petition.
(6) Other emergency situations, as determined by the Consular Section.
d. Large-scale disrupting event: An event such as a natural disaster or widespread
civil unrest that affects large numbers of people and creates a humanitarian
emergency for U.S. citizens or residents living abroad that would call for a
blanket authorization for posts to accept and process I-130 petitions. In these
circumstances, only the Chief or Deputy Chief of the USCIS International
Operations Division may give blanket authorization to accept filing and
adjudicate Form I-130 petitions for a specified period of time.
e. Adam Walsh Act eligibility to file requirement in Form I-130 cases:
(1) In a Form I-130 case that satisfies the criteria in 9 FAM 42.41 N4.2-3, you
may not approve a petition until USCIS has conducted a background check
to determine whether the petitioner has been convicted of a sexual or
kidnapping criminal offense against a minor specified in 42 U.S.C.
16911(7), section 111 of the Adam Walsh Child Protection and Safety Act
of 2006 (Adam Walsh Act), Public Law 109-248. Post must send Adam
Walsh check requests through NVC. Otherwise, the Form I-130 is not
clearly approvable. (See 9 FAM 42.41 N4 and 9 FAM 42.41 PN4.) The
Adam Walsh Act was made effective on July 27, 2006.
(2) Under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i), a petitioner is not eligible
to file such a petition if convicted of such an offense without a
determination by the Secretary of Homeland Security, in his/her sole and
unreviewable discretion, that the petitioner poses no risk to the
beneficiary. Because you do not have access to petitioners criminal
history records, which must be reviewed to establish eligibility to file, it is
necessary for USCIS to conduct this review and report whether processing


of the petition may proceed. Any petition approved by a consular officer
on or after July 27, 2006 is not valid unless and until USCIS has performed
an Adam Walsh check and confirmed that the petitioner is eligible. (See 9
FAM Appendix N, 201 c.)


9 FAM 42.41 N5 PETITION VALIDITY
(CT:VISA-1880; 09-11-2012)
Unless a petition has been automatically revoked under INA 203(g), a properly
approved petition remains valid indefinitely provided the familial or employer
and/or employee relationship exists.


9 FAM 42.41 N6 SUPPORTING DOCUMENTS AND
FEES
(CT:VISA-1039; 09-26-2008)
The supporting documents and fees required by Department of Homeland Security
(DHS) in connection with the filing of a petition are given under the instructions
portion of each petition. See 8 CFR 103.7 for a listing of DHS fees and see
www.uscis.gov for additional information on supporting documents and fees. Also
see 9 FAM 42.21 N13.3-3 for discussion of documents required for Form I-600,
Petition to Classify Orphan as an Immediate Relative.


9 FAM 42.41 N7 ESTABLISHING PETITIONER
STATUS

9 FAM 42.41 N7.1 Proof of U.S. Citizenship
(CT:VISA-1039; 09-26-2008)
a. Primary evidence that the petitioner is a naturalized U.S. citizen may consist of
the following:
(1) A birth certificate issued by a civil authority which establishes birth in the
United States;
(2) A Certificate of Naturalization or Certificate of Citizenship;
(3) An unexpired U.S. passport issued initially for a full ten-year period to a
petitioner over the age of 18 as a citizen of the United States (and not
merely a noncitizen national);
(4) An unexpired U.S. passport issued initially for a full five-year period to a
petitioner under the age of 18 as a citizen of the United States (and not


merely a noncitizen national);
(5) Department of State Form FS-240, Consular Report of Birth Abroad of a
Citizen of the United States of America.
b. If primary evidence is unavailable, the petitioner must present secondary
evidence. This evidence must be evaluated for authenticity and credibility.
Such evidence may include, but is not limited to, one or more of the following:
(1) A baptismal certificate with the seal of the church, showing the date and
place of birth in the United States and date of the baptism;
(2) Affidavits sworn to by persons who have personal knowledge and were
present at the time naturalization took place;
(3) Early school records showing the date of admission to the school, the
childs date and place of birth, and the name(s), date(s), and place(s) of
birth of the parent(s); or
(4) Census records showing name, date and place of birth, or age.
c. An approved Form I-600-A, Application for Advance Processing of Orphan
Petition for an adoptive or prospective adoptive parent attests to USCIS
determination that citizenship and age requirements have been met.

9 FAM 42.41 N7.1-1 U.S. Passport as Proof of Citizenship
(TL:VISA-621; 05-10-2004)
A U.S. citizen petitioner abroad may establish U.S. citizenship by presentation of
an unexpired U.S. passport issued initially for the full period of validity to the
petitioner as a citizen of the United States, not as a non-citizen national. If the
petitioner intends to mail the application to an DHS office, or is not carrying the
passport when seeking to file the petition at a consular office, citizenship may be
established by a statement by the consular officer that the petitioner has
presented such a passport on some occasion or that post records show the
petitioner to be a U.S. citizen who is the bearer of such a passport. This
statement may be written on or attached to the Form I-130, Petition for Alien
Relative, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or
Form I-600, Petition to Classify Orphan as an Immediate Relative. If the petition
is filed at a consular office and the consular officer is not fully satisfied that the
petitioner is a U.S. citizen rather than a national, the petition should be considered
not clearly approvable. (See 9 FAM 42.41 N4.2-3.)

9 FAM 42.41 N7.1-2 U.S. Citizen in Armed Forces
(TL:VISA-333; 11-15-2001)
If it is determined that it would cause unusual delay or hardship to obtain
documentary proof of birth in the United States, a U. S. citizen petitioner who is a
member of the U.S. Armed Forces and who is serving outside the United States


may submit a statement from the appropriate authority of the Armed Forces. The
statement should attest to the fact that the personnel records of the Armed Forces
show that the petitioner was born in the United States on a certain date (see 8
CFR 204.1(g)(2)(V)).

9 FAM 42.41 N7.2 Establishing Lawful Permanent
Resident (LPR) Status
(CT:VISA-881; 05-09-2007)
The Form I-551, Permanent Resident Card, or other proof given by DHS is
evidence of status as a lawful permanent resident.

9 FAM 42.41 N7.3 Photocopies of Supporting
Documents
(CT:VISA-1880; 09-11-2012)
a. Department of Homeland Security (DHS) regulations require legible, true copies
of original documents, including copies of naturalization certificates and
Permanent Resident Cards which are acceptable if filing petitions with DHS
adjudicators. A copy of a certified copy from a state bureau of vital statistics
which is certified by a notary public is NOT acceptable unless accompanied by
the copy containing the state seal.
b. DHS has determined, however, that the authority delegated to consular officers
to approve petitions will include only those cases in which the originals of the
required supporting documents are submitted. All documentation submitted in
support of visa petitions approved by consular officers must be original. If the
petitioner submits copies of required supporting documents and is unwilling to
submit the originals, the consular officer must consider the petition not clearly
approvable and refer the petition to DHS.


9 FAM 42.41 N8 PETITIONER AGE AND
COMPETENCY
(CT:VISA-881; 05-09-2007)
Under INA 201(b) (8 U.S.C. 1151(b)) a U.S. citizen petitioner must be at least 21
years of age to accord immediate relative status to an alien parent. Under INA
203(a)(4) (8 U.S.C. 1153(a)(4)) petitioners must be at least 21 years of age to
accord family-sponsored fourth preference status to a brother or sister. Although
it is unlikely that any person under age 14 will have reason to file a petition, it is
possible that such a person could be a spouse or parent and therefore be in a
position to file a petition on behalf of their spouse or child. Should this occur, a
parent, guardian, or other adult having a legitimate interest in a person who is


under 14 years of age may file a petition on that persons behalf, and the guardian
of a mentally incompetent person may file a petition on that persons behalf. (See
also 9 FAM 42.41 N4.2-4 for marriage of persons under the age of 18.) The INA
does not establish an age requirement for the petitioner for any of the other
immigrant classifications.


9 FAM 42.41 N9 PETITION BASED ON PROXY
MARRIAGE

9 FAM 42.41 N9.1 Consummated Proxy Marriage
(TL:VISA-170; 10-01-1997)
If the consular officer is satisfied that the marriage has been consummated, he or
she may proceed with processing the visa application based on the premise that a
consummated proxy marriage relates back to the date of the proxy ceremony.

9 FAM 42.41 N9.2 Unconsummated Proxy Marriage
(CT:VISA-1880; 09-11-2012)
If the marriage has not been consummated, the consular officer must return the
petition to Department of Homeland Security (DHS). (See 9 FAM 42.43 N3 and 9
FAM 42.43 Procedural Notes.) If the marriage is subsequently consummated, and
DHS approves a petition for the same preference classification, the new petition
approval can be regarded as a reaffirmation of the validity of the original petition
and the original priority date is retained.


9 FAM 42.41 N10 AUTOMATIC CONVERSION OF
PETITIONS

9 FAM 42.41 N10.1 Immediate Relative and Family-
Based Petitions
(TL:VISA-170; 10-01-1997)
See 9 FAM 42.31 N1.


9 FAM 42.41 N10.2 Petitions Approved Prior to 1965
Amendments
(TL:VISA-351; 01-29-2002)
Form I-130, Petition for Alien Relative, petitions approved in accordance with the
Immigration and Nationality Act of 1952 prior to the 1965 amendments were
automatically converted to the new preference or immediate relative status in
1965.

9 FAM 42.41 N10.3 Petitions Approved Prior to October
1, 1991
(CT:VISA-1880; 09-11-2012)
a. Family-sponsored petitions approved under the Immigration and Nationality Act
prior to October 1, 1991, automatically convert to the corresponding new family
preference category.
b. Employment-based third and sixth preference petitions filed before October 1,
1991, automatically accord the new employment-based second and third
preferences (E-2 and E-3), respectively. The following-to-join spouse or child
of a third preference alien is accorded status in the new employment second
preference. The following-to-join spouse or child of a sixth preference alien
beneficiary issued a visa prior to October 1, 1991 is accorded the new
employment third preference (E34 or E35) status. However, entitlement to
status on the basis of these employment-based petitions does not apply more
than two years after the priority date has been reached for visa issuance. In
compliance with 8 CFR 204.5(f), the Department has interpreted this provision
in a prospective sense; i.e., two years from October 1, 1991, or two years from
the date on which a visa number becomes available, whichever is later.

9 FAM 42.41 N10.3-1 Priority Dates Current on October 1,
1991 and Remained Current
(TL:VISA- 170; 10-01-1997)
If the priority date of an old third or sixth preference petition approved prior to
October 1, 1991 was current on that date, or subsequently became current, the
Department has determined that conversion is no longer applicable and is
considered to have expired on September 30, 1993, if:
(1) ) The priority date has remained continuously current; and
(2) ) The applicant did not execute an immigrant visa application before
a consular officer on or before September 30, 1993.


9 FAM 42.41 N10.3-2 Priority Dates Current Subsequent to
October 1, 1991
(TL:VISA- 170; 10-01-1997)
An old third or sixth preference petition, for which the priority date became
available subsequent to October 1, 1991, is considered to have expired on the
second anniversary of the date on which the priority date was reached, if:
(1) ) The priority date has been continuously available for the entire two
year period; and
(2) ) The beneficiary did not execute a visa application on or before the last
day of such two-year period.

9 FAM 42.41 N10.3-3 Interpretation of Notification That Visa
is Immediately Available
(TL:VISA- 170; 10-01-1997)
For the purpose of administering 8 CFR 204.5(f) (see 9 FAM 42.41 Exhibit I), the
Department has interpreted notification that an immigrant visa is immediately
available, to mean the monthly Visa Bulletin in which the beneficiarys priority
date is first listed. The two-year clock will begin on the first day of the month
following the publication of that Visa Bulletin unless the date should retrogress.
To avoid the loss of the old priority date, the beneficiary must apply for an
immigrant visa within the two-year period beginning on that date.

9 FAM 42.41 N10.3-4 Retrogression of Priority Date
(TL:VISA- 170; 10-01-1997)
If the priority date of an old third or sixth preference petition retrogresses before
the full two years have passed, the priority date will not be lost. In fact, a new
two-year period will begin for that priority date when the date again becomes
current.


9 FAM 42.41 N11 EFFECT OF MARRIAGE FRAUD
AMENDMENTS ACT OF 1986, PUBLIC LAW 99-639
(CT:VISA-1880; 09-11-2012)
a. The Marriage Fraud Amendments Act of 1986 prohibits Department of
Homeland Security (DHS) approval of petitions in certain instances where the
spouse of an alien obtained immigrant status on the basis of marriage which
took place while administrative or judicial proceedings were pending. (See 9
FAM 42.42 N13.1-2.)If the petition is approved by DHS in error, consular
officers must return the petition to the DHS adjudicating office. If such a


petition is presented to a consular officer for approval, the consular officer must
consider the petition not clearly approvable and forward the petition to DHS.
b. The Immigration Act of 1990, however, provides for an exemption if the
petitioner provides clear and convincing evidence that:
(1) ) The marriage was entered into 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 aliens
entry as an immigrant; and
(3) No fee or other consideration was given for the filing of the petition.


9 FAM 42.41 N12 PETITIONS WHERE
DEPARTMENT OF HOMELAND SECURITY (DHS)
MEMORANDUM IS ATTACHED
(CT:VISA-1880; 09-11-2012)
a. In rare instances, the consular officer may receive a petition from Department
of Homeland Security (DHS) accompanied by a memorandum containing
information which may relate to the alien's entitlement to status or visa
eligibility. In those instances, where the information relates to a minor
question of fact which the consular officer is able to resolve in the alien's favor,
endorse the memorandum with a brief statement indicating why the visa was
issued. Place the memorandum and petition in an envelope and attach it to the
sealed envelope for the visa.
b. If the alien is clearly not entitled to status, return the petition to the DHS
adjudicating office in accordance with the instructions in 9 FAM 42.43 N3.
c. If the information contained in the DHS memorandum raises questions
regarding the alien's eligibility or contains classified information, or if a
statement regarding the countervailing evidence would require a security or
administrative classification, you must submit the case to the Departments
Advisory Opinions Division (CA/VO/L/A) for an advisory opinion. The advisory
opinion request must provide:
(1) A copy of the information furnished by Department of Homeland Security
(DHS);
(2) ) The evidence developed by the consular officer; and
(3) ) The consular officer's recommendation regarding the alien's entitlement
to status or eligibility.


9 FAM 42.41 N13 DISPOSING OF APPROVED
VISA PETITIONS

9 FAM 42.41 N13.1 Petitions Filed with Department Of
Homeland Security (DHS)
(CT:VISA-1880; 09-11-2012)
DHS will endeavor to send approved petitions to the National Visa Center (NVC) on
a daily basis via first-class mail or express delivery. If, due to unanticipated
difficulty, the DHS Service Center is unable to ship petitions within 72 hours after
approval, DHS will so notify the NVC. DHS will include a computer-generated
manifest, arranged in ascending numerical order of DHS receipt numbers, in each
box of petitions shipped. White bar-code labels will be placed on the right-hand
corner of the petitions. No staples will be affixed through the labels. Where
required or requested, DHS will cable directly to the post or DHS office abroad,
information on immigrant petitions for orphans and approval of Forms I-600,
Petition to Classify Orphan as an Immediate Relative, advance processing
applications for orphans. When the petition indicates that the beneficiary intends
to adjust status, but no immigrant visa number is immediately available, DHS will
retain the petition until such time as a number becomes available.

9 FAM 42.41 N13.2 Receipt of Petition at Consular
Offices

9 FAM 42.41 N13.2-1 Petitions Accepted for Processing
(CT:VISA-881; 05-09-2007)
You may accept jurisdiction for processing an immigrant visa petition if the
petitioner meets the residency requirements (or emergent, humanitarian, or
national interest requirements discussed in 9 FAM 42.41 N4.2-5) and both the
petitioner and the visa applicant are physically present in their district and the
beneficiary is likely to be able to remain in the country for the time it normally
takes to process a visa. The beneficiary need not be a resident of the consular
district.

9 FAM 42.41 N13.2-2 Petitions Received for Aliens Outside
Consular District
(CT:VISA-1880; 09-11-2012)
If post receives a petition for an alien not residing in its consular district and the
post does not choose to process the application under its discretionary authority
(see 9 FAM 42.61 N3.2), posts have two options:


(1) Transfer the petition to the post having jurisdiction, usually the applicants
last place of residence abroad (see 9 FAM 42.41 PN3); or
(2) Keep the petition, if the city or country having jurisdiction is not designated
to handle immigrant visa applications. Post should not return immigrant
visa petitions to Department of Homeland Security (DHS).

9 FAM 42.41 N13.2-3 Notifying Beneficiary
(CT:VISA-1880; 09-11-2012)
The consular officer must notify the beneficiary of the receipt and disposition of
the petition. (See 9 FAM 42.41 PN1.) Should the consular officer retain the
petition at post, he or she must make clear to the applicant that the petition will
be kept on file until such time as a request for transfer is received from another
post.

9 FAM 42.41 N13.3 Petitions Received by National Visa
Center (NVC)
(CT:VISA-1039; 09-26-2008)
Upon receipt of an approved petition, NVC will send the beneficiary the Instruction
Package for Immigrant Visa Applicants (formerly packet 3). (See 9 FAM 42.63
PN5.)


9 FAM 42.41 N14 LOCATING POST TO ACCEPT
JURISDICTION
(CT:VISA-1880; 09-11-2012)
The consular officer must make it clear that it is the applicants responsibility to
locate a post willing to accept the case and to ask the receiving post to request
transfer of the petition on their behalf. (For further instructions regarding
transferring files, see 9 FAM 42.61 PN1.)


9 FAM 42.41 N15 REVOCATION AND
REVALIDATION OF PETITIONS
(TL:VISA-170; 10-01-1997)
See 9 FAM 42.43 Related Statutory Provisions and 9 FAM 42.43 Notes.




9 FAM 42.41
PROCEDURAL NOTES
(CT:VISA-1882; 09-12-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.41 PN1 NOTIFYING BENEFICIARY OF
APPROVED VISA PETITION

9 FAM 42.41 PN1.1 Beneficiaries of Immediate Relative
or Preference Petitions
(CT:VISA-1882; 09-12-2012)
Upon receipt of an approved petition granting an alien immediate relative or
preference status, the National Visa Center (NVC) must send the alien beneficiary
the Packet 3 or Packet 3A notifying the beneficiary of receipt of the petition and
advising the alien what steps, if any, to take in applying for a visa. (See 9 FAM
42.63 PN5.)

9 FAM 42.41 PN1.2 Beneficiaries of Orphan Petitions
(CT:VISA-1345; 10-14-2009)
Where required or when requested, U.S. Immigration and Citizenship Services
(USCIS) will cable or fax directly to the post or the USCIS officer abroad
information on immigrant petitions for orphans and approval of Form I-600-A,
Application for Advance Processing of Orphan Petition. Upon receipt of the cable
or fax, you will notify the petitioner of the steps to be taken for further processing
of the case.


9 FAM 42.41 PN2 ATTACHING PETITION AND
SUPPORTING DOCUMENTS TO VISA
(CT:VISA-1882; 09-12-2012)
See 9 FAM 42.73 PN3 and 9 FAM 42.73 PN4.


9 FAM 42.41 PN3 TRANSFERRING PETITION TO
ANOTHER POST


9 FAM 42.41 PN3.1 Transferring Files
(TL:VISA-170; 10-01-1997)
See 9 FAM 42.61 PN1.

9 FAM 42.41 PN3.2 Record of Transfer by Transferring
Post
(TL:VISA-388; 04-09-2002)
All cases must be transferred using the procedures contained in the Automated
Immigrant Visa Processing System. In no case should a paper file be transferred
without following proper procedures in the automated system. (See 9 FAM 42.61
PN1.3.)


9 FAM 42.41 PN4 ADAM WALSH ACT CLEARANCE
FROM USCIS OF PETITIONERS BEFORE
APPROVAL OF PETITION

9 FAM 42.41 PN4.1 Petition Approval Process
(CT:VISA-1882; 09-12-2012)
After accepting a properly filed petition with the fee, you must review the petition
to verify the relationship between the petitioner and the beneficiary. If the
relationship appears valid, you must send the petitioner's biodata to the National
Visa Center (NVC) to be forwarded to USCIS for a check under provisions of the
Adam Walsh Act before approving the petition.

9 FAM 42.41 PN4.2 Provisional Immigrant Visa (IV)
Case Should be Opened in Immigrant Visa Office (IVO)
(CT:VISA-1345; 10-14-2009)
A provisional immigrant visa (IV) case must be opened in Immigrant Visa Office
(IVO) when the petition has been filed and the fee paid. This is done so that a
unique case number can be generated. The case should remain in provisional
status until NVC has returned the results of the Adam Walsh Act check from
USCIS.


9 FAM 42.41 PN4.3 Petitioner's Biodata Transmitted to
National Visa Center (NVC)
(CT:VISA-1345; 10-14-2009)
a. Until the process can be done electronically through the IVO system, post must
e-mail the biodata of the petitioner in an Excel spreadsheet to NVC to forward
to USCIS for the Adam Walsh Act check. Each petitioner's last, first, and
middle name must be listed on a single row, and any aliases or versions of the
name must be listed in separate rows on the spreadsheet. All entries must be
in capital letters. The petitioner's name and the aliases will share the same
unique identifier that is the post case number. The following columns must be
used in this order:
A. Post 13 character case number
B. LAST NAME
C. FIRST NAME
D. MIDDLE NAME
E. Date of birth (MM/DD/YR)
DO NOT deviate from this format. Do not include any other information or
columns. DO NOT include social security number, country of birth,
beneficiaries' names, or background information. Do not use prefixes like Rev.
or Dr. and suffixes like Jr. or Sr. Do not use apostrophes, accent marks, or
other special characters including characters in foreign alphabets. Spaces may
be used in last, first, and middle names. Hyphenated names should be entered
first with the hyphen and then on another row as an alias with a space,
replacing the hyphen. Names with apostrophes should be entered first without
the apostrophe and no space, then as an alias with a space replacing the
apostrophe.
b. The spreadsheet must match the sample form below, although the columns
may be adjusted in size to contain the complete last, first, and middle names.
No names should be truncated in the spreadsheet. If the petitioner does not
have a first or middle name, those columns should be left blank. Do not use
notes like FNU or NMN.
Post Number Last
Name
First
Name
Middle
Name
DOB
(MM/DD/YEAR)
XYZ2007002001 OBRIAN JOHN HENRY 01/03/1971
XYZ2007002001 O BRIAN JOHN HENRY 01/03/1971
XYZ2007002001 JONES PAUL

03/01/1971
XYZ2007002003 ROJAS-DIAZ MARIA ANA 02/04/1976
XYZ2007002003 ROJAS DIAZ MARIA ANA 02/04/1976
XYZ2007002003 ROJAS MARIA ANA 02/04/1976


XYZ2007002003 DIAZ MARIA ANA 02/04/1976


c. The spreadsheet must be e-mailed as an attachment to NVCAWA@state.gov.
The subject of the e-mail should be in the following format: XYZAWA02-27-
07A for the first list of the day and any subsequent lists of petitioners' biodata
should be XYZAWA02-27-07B, etc.

9 FAM 42.41 PN4.4 Post Processing of Adam Walsh Act
Namecheck Status
(CT:VISA-1345; 10-14-2009)
a. National Visa Center (NVC) will forward to post the clearance response from
USCIS. Each petitioner must have a response indicating clearly that the case,
identified by the post case number, has cleared or did not clear the Adam
Walsh Act process. The approved results memo for each petition transmitted to
post by NVC should be scanned into the case and a copy attached to the
petition. Only information for the petitioner for that individual case should be
connected with a single case. For privacy purposes, Adam Walsh Act clearance
response results for a different petitioner should not be included in a case.
b. If the results memo returned from NVC for an individual petitioner reports that
the case identified by post case number has "cleared" the USCIS check, you
may approve the petition and begin processing the immigrant visa case.
c. If the status returned for an individual petitioner identified by post case number
is "not cleared" because of possible prior conviction of one or more of the cited
crimes under the Adam Walsh Act or due to system limitations, post should
invite the petitioner to the consular section for fingerprinting with the ink and
card process. Mail the fingerprint card, the petition, and other relevant
documents to the USCIS overseas office having jurisdiction over the post.
d. If the petitioner ultimately clears the USCIS review under the Adam Walsh Act,
the petition and documents will be returned to post for visa processing. If the
petition is found not to be approvable, the USCIS office will notify post, and
post should close the provisional case in the IVO system.

9 FAM 42.41 PN4.5 Form I-130 Petition for Alien
Relative Fees
(CT:VISA-1345; 10-14-2009)
You should take fees for Form I-130, Petition for Alien Relative, filed at the USCIS
office at post. You should not take fees for Form I-130 that are to be sent to
domestic USCIS offices for processing. In those countries where constituent posts
are served by a USCIS office at another post in the same country and USCIS will
accept petitions by mail, you should take the fee and ask the petitioner to forward


directly to the USCIS office the petition, fee receipt, and documents listed on the
Form I-130 instructions posted on the USCIS Web site. The petitioner is
responsible for mailing his complete petition packet to the USCIS office in country.
If there is a USCIS overseas office in the country, consular officers should not
review the documents or otherwise advise the petitioner on the process.






9 FAM 42.41 EXHIBIT I
8 CFR 204.5(f)
(CT:VISA-979; 07-11-2008)
(Effective Date: 05-22-2008)
(Office of Origin: CA/VO/L/R)

8 CFR

204.5(f) Maintaining the priority date of a third or sixth preference
petition filed prior to October 1, 1991

Any petition filed before October 1, 1991, and approved on any date, to
accord status under section 203(a)(3) or 203(a)(6) of the Act, as in effect
before October 1, 1991, shall be deemed a petition approved to accord
status under section 203(b)(2) or within the appropriate classification under
section 203(b)(3), respectively, of the Act as in effect on or after October 1,
1991, provided that the alien applies for an immigrant visa or adjustment of
status within the two years following notification that an immigrant visa is
immediately available for his or her use.






9 FAM 42.42
PETITIONS FOR IMMEDIATE RELATIVE
OR PREFERENCE STATUS
(CT:VISA-993; 08-12-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.42 RELATED STATUTORY
PROVISIONS
(CT:VISA-993; 08-12-2008)

See INA 201(b)(2)(A)(i) (8 U.S.C. 1151(b)(2)(A)(i)), INA 203(a), INA
203(b)(1)(B) and (C), INA 203(b)(2), INA 203(b)(3), INA 203(b)(4), INA
203(b)(5) (8 U.S.C. 1153(b)(1)(B) and (C), (b)(2), (b)(3), (b)(4), and
(b)(5)), INA 204(a)(2), part, INA 204(h) (8 U.S.C. 1154(a)(2) and (h)), and
INA 245(e)(1) (8 U.S.C. 1255(e)(1))

INA 201(b)(2)(A)(i)

b. Aliens Not Subject to Direct Numerical Limitations. - Aliens described in
this subsection, who are not subject to the worldwide levels or numerical
limitations of subsection (a), are as follows:

(2)(A)(i) Immediate relatives. - For purposes of this subsection, the
term immediate relatives means the children, spouses,
and parents of a citizen of the United States, except that,
in the case of parents, such citizens shall be at least 21
years of age. In the case of an alien who was the spouse
of a citizen of the United States for at least 2 years at the
time of the citizen's death and was not legally separated
from the citizen at the time of the citizen's death, the alien
(and each child of the alien) shall be considered, for
purposes of this subsection, to remain an immediate
relative after the date of the citizen's death but only if the
spouse files a petition under section 204(a)(1)(A)(ii) within
2 years after such date and only until the date the spouse
remarries. 3/ For purposes of this clause, an alien who has
filed a petition under clause (iii) or (iv) of section
204(a)(1)(A) of this Act remains an immediate relative in
the event that the United States citizen spouse or parent




loses United States citizenship on account of the abuse.

INA 203(a)
a. Preference Allocation for Family-Sponsored Immigrants. - Aliens subject
to the worldwide level specified in section 201(c) for family-sponsored
immigrants shall be allotted visas as follows:
(1) Unmarried sons and daughters of citizens. - Qualified immigrants
who are the unmarried sons or daughters of citizens of the United
States shall be allocated visas in a number not to exceed 23,400,
plus any visas not required for the class specified in paragraph
(4).
(2) Spouses and unmarried sons and unmarried daughters of
permanent resident aliens. - Qualified immigrants
(A) who are the spouses or children of an alien lawfully admitted
for permanent residence, or
(B) who are the unmarried sons or unmarried daughters (but are
not the children) of an alien lawfully admitted for permanent
residence, shall be allocated visas in a number not to exceed
114,200, plus the number (if any) by which such worldwide
level exceeds 226,000, plus any visas not required for the
class specified in paragraph (1); except that not less than 77
percent of such visa numbers shall be allocated to aliens
described in subparagraph (A).
(3) Married sons and married daughters of citizens. - Qualified
immigrants who are the married sons or married daughters of
citizens of the United States shall be allocated visas in a number
not to exceed 23,400, plus any visas not required for the classes
specified in paragraphs (1) and (2).
(4) Brothers and sisters of citizens. - Qualified immigrants who are
the brothers or sisters of citizens of the United States, if such
citizens are at least 21 years of age, shall be allocated visas in a
number not to exceed 65,000, plus any visas not required for the
classes specified in paragraphs (1) through (3).
INA 203(b)(1)(B) and (C)
b. Preference Allocation for Employment-Based Immigrants. - Aliens subject
to the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:
(1) Priority workers. - Visas shall first be made available in a number
not to exceed 28.6 percent of such worldwide level, plus any visas
not required for the classes specified in paragraphs (4) and (5), to




qualified immigrants who are aliens described in any of the
following subparagraphs (A) through (C):
(B) Outstanding professors and researchers. -An alien is
described in this subparagraph if
(i) the alien is recognized internationally as outstanding
in a specific academic area,
(ii) the alien has at least 3 years of experience in teaching or
research in the academic area, and
(iii) the alien seeks to enter the United States-
(I) for a tenured position (or tenure-track position)
within a university or institution of higher education to
teach in the academic area,
(II) for a comparable position with a university or institution
of higher education to conduct research in the area, or
(III) for a comparable position to conduct research in the
area with a department, division, or institute of a
private employer, if the department, division, or
institute employs at least 3 persons full-time in
research activities and has achieved documented
accomplishments in an academic field.
(C) Certain multinational executives and managers. An alien is
described in this subparagraph if the alien, in the 3 years
preceding the time of the alien's application for classification and
admission into the United States under this subparagraph, has
been employed for at least 1 year by a firm or corporation or
other legal entity or an affiliate or subsidiary thereof and the alien
seeks to enter the United States in order to continue to render
services to the same employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or executive.
INA 203(b)(2) (5), in part
b. Preference Allocation for Employment-Based Immigrants. - Aliens subject
to the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:

(2) Aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability.
(3) Skilled workers, professionals, and other workers.
(4) Certain special immigrants. - Visas shall be made available, in a
number not to exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in section 101(a)(27) (other




than those described in subparagraph (A) or (B) thereof), of which
not more than 5,000 may be made available in any fiscal year to
special immigrants described in subclause (II) or (III) of section
101(a)(27)(C)(ii) , 2/ and not more than 100 may be made
available in any fiscal year to special immigrants, excluding
spouses and children, who are described in section 101(a)(27)(M).
(5) Employment creation.
(A) In general. - Visas shall be made available, in a number not to
exceed 7.1 percent of such worldwide level, to qualified
immigrants seeking to enter the United States for the purpose
of engaging in a new commercial enterprise (including a limited
partnership)

INA 204(a)(2)
(2) (A) The Attorney General may not approve a spousal
second preference petition for the classification of the spouse of
an alien if the alien, by virtue of a prior marriage, has been
accorded the status of an alien lawfully admitted for permanent
residence as the spouse of a citizen of the United States or as
the spouse of an alien lawfully admitted for permanent
residence, unless
(i) a period of 5 years has elapsed after the date the alien
acquired the status of an alien lawfully admitted for
permanent residence, or
(ii) the alien establishes to the satisfaction of the Attorney
General by clear and convincing evidence that the prior
marriage (on the basis of which the alien obtained the
status of an alien lawfully admitted for permanent
residence) was not entered into for the purpose of evading
any provision of the immigration laws.
In this subparagraph, the term spousal second preference petition
refers to a petition, seeking preference status under section 1153
(a)(2) of this title, for an alien as a spouse of an alien lawfully
admitted for permanent residence.
(B) Subparagraph (A) shall not apply to a petition filed for the
classification of the spouse of an alien if the prior marriage of
the alien was terminated by the death of his or her spouse.
INA 204(h)
h. Survival of rights to petition




The legal termination of a marriage may not be the sole basis for
revocation under section 1155 of this title of a petition filed under
subsection (a)(1)(A)(iii) of this section or a petition filed under
subsection (a)(1)(B)(ii) of this section pursuant to conditions described in
subsection (a)(1)(A)(iii)(I) of this section. Remarriage of an alien whose
petition was approved under subsection (a)(1)(B)(ii) or (a)(1)(A)(iii) of
this section or marriage of an alien described in clause (iv) or (vi) of
subsection (a)(1)(A) of this section or in subsection (a)(1)(B)(iii) of this
section shall not be the basis for revocation of a petition approval under
section 1155 of this title.
INA 245(e)(1)
e. Restriction on adjustment of status based on marriages entered while in
admissibility or deportation proceedings; bona fide marriage exception
(1) Except as provided in paragraph (3), an alien who is seeking to
receive an immigrant visa on the basis of a marriage which was
entered into during the period described in paragraph (2) may not
have the aliens status adjusted under subsection (a) of this
section.
(2) The period described in this paragraph is the period during which
administrative or judicial proceedings are pending regarding the
aliens right to be admitted or remain in the United States.
(3) Paragraph (1) and section 1154 (g) of this title shall not apply
with respect to a marriage 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 in
accordance with the laws of the place where the marriage took
place and the marriage was not entered into for the purpose of
procuring the aliens admission as an immigrant and no fee or
other consideration was given (other than a fee or other
consideration to an attorney for assistance in preparation of a
lawful petition) for the filing of a petition under section 1154 (a) of
this title or subsection (d) or (p)
[2]
of section 1184 of this title
with respect to the alien spouse or alien son or daughter. In
accordance with regulations, there shall be only one level of
administrative appellate review for each alien under the previous
sentence.






9 FAM 42.42 RELATED REGULATORY
PROVISIONS
(CT:VISA-993; 08-12-2008)

See 22 CFR 42.42.




9 FAM 42.42
NOTES
(CT:VISA-2085; 04-28-2014)
(Office of Origin: CA/VO/L/R)


9 FAM 42.42 N1 NOTICE OF PETITION
APPROVAL
(CT:VISA-1415; 04-02-2010)
a. A consular officer must not issue an immigrant visa (IV) without receipt from
the Department of Homeland Security (DHS) of an approved immigrant visa
petition:
(1) Form I-130, Petition for Alien Relative;
(2) Form I-600, Petition to Classify Orphan as an Immediate Relative;
(3) Form I-800, Petition to Classify Convention Adoptee as an Immediate
Relative;
(4) Form I-140, Immigrant Petition for Alien Worker; or
(5) Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
b. In emergency situations only, consular officers may issue a visa based on the
following:
(1) Cable notification of such approval;
(2) Official notification Form I-797, Notice of Action, of such approval;
(3) An electronic case record provided by the National Visa Center (NVC); or
(4) Faxed notice of approval of Form I-600 received directly from the
approving DHS office.


9 FAM 42.42 N2 PETITION VALIDITY

9 FAM 42.42 N2.1 When Relationship Is Terminated
(CT:VISA-1617; 01-13-2011)
Unless an application is terminated pursuant to INA 203(g) (see 9 FAM 42.83) or
revoked pursuant to 8 CFR 205.1, the approval of a petition to classify an alien as
an immediate relative under INA 201(b) or a preference applicant under INA


203(a)(1), (2), (3), or (4) must remain valid for the duration of the relationship to
the petitioner, and of the petitioners status, as established in the petition. A
petition filed by a battered or abused spouse or child under INA
204(a)(1)(A)(iii)(I) or INA 204(a)(1)(B)(iii), however, may not be revoked solely
due to termination of the relationship.

9 FAM 42.42 N2.2 Death of Petitioner with Petition
Pending
(CT:VISA-1676; 09-06-2011)
USCIS regulations allow for the automatic conversion of a Petition for Alien
Relative, Form I-130, to a Petition for Amerasian, Widow(er), or Special
Immigrant, Form I-360, upon the petitioners death in the case of an immediate
relative spouse (now widow(er)) of a U.S. citizen. No further action is required on
the part of USCIS to automatically convert the petition, nor does any revocation
and reinstatement need to be performed. See 8 CFR 204.2(h)(2).

9 FAM 42.42 N2.3 Widow(er)s with Petition Pending
(CT:VISA-1617; 01-13-2011)
Widow(er)s married less than two years may also self petition, and are included in
the auto conversion regulation. Children of the widow(er) are also included on the
widow(er)s Form I-130/Form I-360 converted petition without the need for a
separate I-360 or I-130 petition (see the 2010 FY DHS Approps Act, Public Law No
111-83, Section 568(c)).

9 FAM 42.42 N2.4 Petitioner Killed in September 11,
2001 Terrorist Attack
(CT:VISA-1617; 01-13-2011)
Under section 421(b)(1)(B)(i) of the USA PATRIOT Act, a petition approved for the
spouse or child, son, or daughter of an alien killed in the September 11, 2001
terrorist attacks must remain valid indefinitely and continues as if the petitioner
had not died. The beneficiary may retain his or her priority date.


9 FAM 42.42 N3 FAMILY-BASED PETITIONS
UNDER USA PATRIOT ACT


9 FAM 42.42 N3.1 When Family-based Petition Has
Been Filed
(CT:VISA-1415; 04-02-2010)
a. Section 421(b) of the USA PATRIOT Act preserves immigration benefits for
certain surviving family members of a LPR who died as a result of the
September 11, 2001 terrorist attacks for whom petitions had been filed on or
before September 11, 2001.
b. Under Section 421 of the Act, the spouse or child may self-petition for special
immigrant status. (See 9 FAM 42.32(d)(9) N3.) The derivative child of such
applicant must follow-to-join the principal applicant by September 11, 2003.
c. Under Section 423 of the Act, the petition for the spouse or child remains valid
indefinitely and the applicant may continue to be processed as if the LPR had
not died. The beneficiary may retain his or her priority date.
d. Under Section 424 of the Act, any alien who is the beneficiary of a petition filed
on or before September 11, 2001, and whose 21st birthday occurs after
September 30, 2001, must be considered to be a child for 45 days after the
aliens 21st birthday.

9 FAM 42.42 N3.1-1 Applying for Status Under USA PATRIOT
Act
(CT:VISA-1617; 01-13-2011)
Under Section 421, applicants must file a Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant, with the Department of Homeland Security
(DHS) service center that has jurisdiction over their place of residence. A new
petition is not required to retain the priority date already granted.

9 FAM 42.42 N3.1-2 Consular Processing
(CT:VISA-1617; 01-13-2011)
a. Immigrant Visa (IV) processing under Section 421 of the USA PATRIOT Act is
standard once the approved Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, is received from DHS via National Visa Center (NVC), except
no Form I-864, Affidavit of Support Under Section 213A of the Act, is required
and INA 212(a)(4) (8 U.S.C. 1182(a)(4)) does not apply.
b. IV Processing is standard once the priority date becomes current and post
receives from the NVC Form I-130, Petition for Alien Relative, filed by the lawful
permanent resident (LPR) on or before his or her death on September 11,
2001, except no Form I-864, Affidavit of Support Under Section 213A of the
Act, is required and INA 212(a)(4) (8 U.S.C. 1182(a)(4)) does not apply.
Applicants will be issued IR-1 visas. As such petitions remain valid for years
and are already in the "pipeline," there will be no notation on the petition that


beneficiaries continue to qualify under the USA PATRIOT Act despite the death
of the petitioner. This information would likely only come to a consular officer's
attention during document collection and the IV interview.
c. Under 423(b) of the Act, petitions for a spouse, child or unmarried son or
daughter remain valid indefinitely and may continue to be processed as if the
LPR petitioner had not died. The beneficiary retains his or her priority date.
d. Under 424 of the Act, a child who is the beneficiary of a petition filed prior to
September 11, 2001, must be considered a child for 45 days after the aliens
21st birthday.
e. Posts should annotate visas issued under the USA PATRIOT Act as follows:
SPbeneficiary of section , USA PATRIOT ACT

9 FAM 42.42 N3.2 When No Family-based Petition Had
Been Filed
(CT:VISA-1415; 04-02-2010)
Under Section 423(a) of the USA PATRIOT Act, if no family-based petition was filed
for a surviving spouse, child or adult son or daughter of a LPR killed in the
September 11 attacks, such alien may file a self-petition using Form I-130,
Petition for Alien Relative. The applicant will be processed for an IV as if he or she
would be permanent resident had not he or she died as a result of the September
11 attacks. In addition to the usual documentary requirements, such petitioners
and derivatives must demonstrate that they were present in the United States on
September 11, 2001, that the spouse or parent was killed as a result of the
September 11 attacks (see 9 FAM 40.1 N12), and that the LPR had status on
September 11, 2001.

9 FAM 42.42 N3.2-1 How to Apply
(CT:VISA-1415; 04-02-2010)
The applicant must file a Form I-130, Petition for Alien Relative, with the
Department of Homeland Security (DHS) service center that has jurisdiction over
the applicants place of residence. It is, however, likely that any eligible
beneficiaries are in the United States and will file at a DHS office.

9 FAM 42.42 N3.2-2 Consular Processing
(CT:VISA-1435; 05-28-2010)
Immigrant Visa (IV) processing is standard once an approved petition is received.
Under Section 213A of the Act, no Form I-864, Affidavit of Support Under Section
213A of the Act, may be required and applicants are exempt from INA 212(a)(4)
(8 U.S.C. 1182(a)(4)) ineligibility. The class of admission codes should be as if a
normal second preference visa.


9 FAM 42.42 N3.3 Cases for Which Both the USA
PATRIOT Act and the Child Status Protection Act Apply
(CT:VISA-1568; 10-04-2010)
For further information on cases in which both the USA PATRIOT Act and the Child
Status Protection Act (CSPA) apply, see 9 FAM 42.42 N12.8.


9 FAM 42.42 N4 EMPLOYMENT PREFERENCE
(CT:VISA-1415; 04-02-2010)
Unless an application is terminated pursuant to INA 203(g) (8 U.S.C. 1153(g))
(see 9 FAM 42.83 N2.1 and 9 FAM 42.83 PN5.1) or is revoked under 8 CFR 205.1,
the approval of an employment preference petition based on an approved labor
certification is valid indefinitely until the alien immigrates or adjusts status.

9 FAM 42.42 N4.1 Change in Job Location
(CT:VISA-677; 01-25-2005)
Except for a Schedule A labor certification, which is valid anywhere in the United
States, a labor certification is valid only for the area within normal commuting
distance of the site of the original offer of employment. (Any location within a
Metropolitan Statistical Area is deemed to be within normal commuting distance.)
If there is a change in job location, the consular officer must return the petition to
the DHS jurisdiction office for action, and the petitioner must file a new petition
with the DHS Service Center having jurisdiction over the intended place of
employment.

9 FAM 42.42 N4.2 Change of Employer
(CT:VISA-677; 01-25-2005)
If the beneficiary of an approved petition changes employers, the consular officer
should send the petition to the DHS jurisdictional office. DHS will reaffirm the
validity of a previously approved petition only when there is a successor-ship in
interest (i.e., when the business is merged, acquired, or purchased by another
business). In addition, the new employer must offer the same wages and working
conditions, offer the beneficiary the same job as stated on the original labor
certification, and must continue to operate the same type of business as the
original employer.


9 FAM 42.42 N4.3 Company Name Change
(CT:VISA-677; 01-25-2005)
A situation may arise whereby a petitioning business will have changed its name
between the time a petition is approved and the date of the beneficiary's visa
issuance. In such instances, DHS does not need to review the petition or issue
any further documentation if the only change is the change in the name of the
company. If the consular officer is satisfied that the evidence presented makes
clear that only the company name has changed, as opposed to a change of
ownership or company location, DHS need not be consulted. The visa must be
annotated; e.g., "abc, inc. formerly xyz, inc."


9 FAM 42.42 N5 SELF-PETITIONING FOR
IMMEDIATE RELATIVE (IR) OR FAMILY
PREFERENCE STATUS

9 FAM 42.42 N5.1 Widow/Widower of U.S. Citizen
(CT:VISA-1568; 10-04-2010)
a. The spouse of a deceased U.S. citizen may file a Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant, for classification as an immediate
relative under INA 201(b) (8 U.S.C. 1151(b)) provided the spouse:
(1) Was the U.S. citizens legal spouse;
(2) Was not legally separated at the time of the spouses death;
(3) Has not remarried; and
(4) Either files a petition under INA 204(a)(1)(A)(ii) (8 U.S.C.
1154(a)(1)(A)(ii)) within two years of the spouses death; or
(5) Is the beneficiary of a Form I-130, Petition for Alien Relative, filed on the
widow(er)s behalf by the U.S. citizen spouse prior to his or her death.
Such petitions will automatically convert to a Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant, so long as, on the date of the
U.S. citizen spouses death, the beneficiary qualified as an immediate
relative under the INA.
b. The child of a qualifying widow or widower is also entitled to status as a
derivative if accompanying or following-to-join the principal beneficiary.


9 FAM 42.42 N5.2 Battered and/or Abused Spouse or
Child of U.S. Citizen or Lawful Permanent Resident
(LPR)

9 FAM 42.42 N5.2-1 General
(CT:VISA-1568; 10-04-2010)
Section 40701 of the Violent Crime Control Act (Public Law 103-322), also known
as the Violence Against Women Act of 1994 (VAWA), signed into law on
September 13, 1994, amended INA 204 (8 U.S.C. 1154) to allow certain spouses
and children of U.S. citizens and permanent resident aliens to self-petition for
immediate relative (IR) and family second preference classification. Although it is
anticipated that most applicants will seek adjustment of status, some aliens may
apply for visas. (See 9 FAM 42.42 PN4.)

9 FAM 42.42 N5.2-2 Requirements for Battered/Abused
Spouse or Child
(CT:VISA-1435; 05-28-2010)
The alien spouse or child who has been battered by, or subjected to extreme
cruelty committed by, a U.S. citizen or permanent resident spouse or parent may
file a petition for IR or family second preference classification if the:
(1) Alien is residing in the United States with the spouse or parent;
(2) Alien is of good moral character;
(3) Alien may be classified as a spouse or child under INA 201(b)(2)(A)(i) (8
U.S.C. 1151(b)(2)(A)(i)) or INA 203(a)(2)(A) (8 U.S.C. 1153(a)(2)(A));
(4) Marriage was entered into in good faith;
(5) Alien or the aliens child has been battered by, or has been the subject of
extreme cruelty perpetrated by the aliens spouse; and
(6) Aliens deportation would result in extreme hardship to the alien or the
aliens child.

9 FAM 42.42 N5.2-3 Priority Date of Self-Petition
(CT:VISA-1910; 10-02-2012)
The priority date of a self-petition is the date on which the petition is properly
filed, provided it is properly signed and executed, the required fee is attached, and
it otherwise complies with 8 CFR 103.2. If the alien is the beneficiary of an
earlier-filed visa family-based visa petition by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child, the earlier priority
date may be assigned.


9 FAM 42.42 N5.2-4 Effect on Other Approved Petitions
(CT:VISA-1415; 04-02-2010)
The approval of a self-petition has no effect on a relative petition. A spouse or
child may be both the beneficiary of a self-petition and the beneficiary of a relative
visa petition filed by the abuser. Qualified persons may seek immigrant visas
(IVs) based on either petition whichever is most advantageous.

9 FAM 42.42 N5.2-5 Spousal Self-Petitions Based on Abuse of
Child
(CT:VISA-1415; 04-02-2010)
A spouse may file a self-petition based on abuse committed against the spouses
child born in wedlock, a stepchild, a legitimate child, a child born out of wedlock,
or an adopted child.

9 FAM 42.42 N5.2-6 Petition Conversion
(CT:VISA-1415; 04-02-2010)
a. A self-petition on behalf of a child will be automatically converted and the
priority date will be preserved in the following instances:
(1) ) The approved self-petition for IR classification for a child of a U.S.
citizen must be automatically converted to a second or fourth preference
petition when the self-petitioner either reaches 21 years of age or
marries; and
(2) ) The approved self-petition for second preference status for a child of a
lawful permanent resident (LPR) must be automatically converted to a
petition for classification as the unmarried son or daughter of a LPR when
the unmarried self-petitioner reaches 21 years of age.
b. There is, however, no automatic upgrade of the second preference petition to
IR classification if the abuser becomes a U.S. citizen, although the abused child
can file a new self-petition for IR classification. Renunciation of citizenship or
abandonment of LPR status by the abuser will not affect the validity of an
approved petition.

9 FAM 42.42 N5.2-7 Where to File a Petition
(TL:VISA-485; 11-06-2002)
See 9 FAM 42.42 PN4.


9 FAM 42.42 N6 IMMEDIATE RELATIVE (IR)
PETITIONS


(CT:VISA-1415; 04-02-2010)
See 9 FAM 42.21 N2.1.


9 FAM 42.42 N7 ORPHAN PETITIONS
(TL:VISA-470; 10-07-2002)
See 9 FAM 42.21 N13.2.


9 FAM 42.42 N8 FAMILY-SPONSORED PETITIONS
(TL:VISA-470; 10-07-2002)
See 9 FAM 42.31 Notes.


9 FAM 42.42 N9 EMPLOYMENT-BASED
PETITIONS
(CT:VISA-1415; 04-02-2010)
See 9 FAM 42.32(a) Related Statutory Provisions; 9 FAM 42.32(b) Related
Statutory Provisions; 9 FAM 42.32(c) Related Statutory Provisions; 9 FAM
42.32(d)(1) Related Statutory Provisions; 9 FAM 42.32(d)(2) Related Statutory
Provisions; 9 FAM 42.32(d)(3) Related Statutory Provisions; 9 FAM 42.32(d)(4)
Related Statutory Provisions; 9 FAM 42.32(d)(5) Related Statutory Provisions; 9
FAM 42.32(d)(6) Related Statutory Provisions; 9 FAM 42.32(d)(7) Related
Statutory Provisions; and 9 FAM 42.32(e) Related Statutory Provisions.


9 FAM 42.42 N10 DIVERSITY PETITIONS
(CT:VISA-1415; 04-02-2010)
See 9 FAM 42.33 N5.2.


9 FAM 42.42 N11 DERIVATIVE STATUS FOR
SPOUSE OR CHILD
(CT:VISA-1910; 10-02-2012)
a. A spouse or child acquired prior to the principal aliens admission to the United
States or the aliens adjustment of status to that of a lawful permanent resident
(LPR), or a child born of a marriage that which existed prior to the principal
aliens admission to the United States as an immigrant, or adjustment of status,
who is following-to-join the principal alien should be accorded derivative status


under INA 203(d) (8 U.S.C. 1153(d)). No second preference petition is
required.
b. Although the spouse or child is entitled to derivative status, a recession of the
cut-off date in the derivative category resulting in the unavailability of a
number in the derivative category might encourage the filing of a second
preference petition. However, there is normally a substantial amount of time
involved before the petition could be approved, and the second preference
might also be delayed. The decision to file or not to file a second preference
petition must be the petitioners. Consular officers must neither encourage nor
discourage the filing of a second preference petition but may provide copies of
recent Visa Office bulletins, which indicate the movement of priority dates. In
unusual circumstances, it is possible that slow movement in the beneficiarys
derivative class might indicate that the filing of a second preference petition
may be beneficial.


9 FAM 42.42 N12 FAMILY-BASED PETITIONS
UNDER THE CHILD STATUS PROTECTION ACT

9 FAM 42.42 N12.1 The Child Status Protection Act
(CSPA)
(CT:VISA-2056; 12-03-2013)
a. The Child Status Protection Act (CSPA), Public Law 107-208, permits an
applicant for certain immigration benefits to retain classification as a child
under the INA, even if he or she has reached the age of 21. If an alien qualifies
for CSPA benefits, the aliens age is frozen at the age calculation provided for in
the CSPA. An alien whose CSPA age is determined to be younger than 21 and
is unmarried will continue to be treated as a child for immigration purposes
throughout the processing of the case.
b. The CSPA potentially applies to virtually all immigrant visa cases including:
immediate relatives, family and employment-based visa classifications,
derivatives in Diversity Visa (DV) cases, derivatives in Special Immigrant Visa
(SIV) cases, beneficiaries under the Violence Against Women Act (VAWA), and
derivatives in asylee and refugee cases (for classes not covered by CSPA, see 9
FAM 42.42 N12.3).

9 FAM 42.42 N12.2 Applicability of the CSPA
(CT:VISA-1568; 10-04-2010)
a. The CSPA was enacted into law on August 6, 2002 and applies to any alien who
had an approved immigrant visa (IV) petition prior to the enactment of the
CSPA, but had not yet applied for permanent residence (either an IV application


or an application for adjustment of status).
b. In immediate relative (IR) cases and immediate beneficiary (IB) cases under
the Violence Against Women Act, if the alien was under the age of 21 at the
time a petition was filed by his or her parent for classification as an IR or IB the
alien will not age out provided the alien did not have a final decision prior to
August 6, 2002 on an application for permanent residence or an immigrant visa
application.
c. The CSPA also applies to an alien whose visa became available on or after
August 7, 2001 and who did not apply for permanent residence within one year
of the visa availability, but would have qualified for CSPA coverage had he or
she applied but for prior guidance from USCIS concerning the CSPA effective
date.

9 FAM 42.42 N12.3 Inapplicability of the CSPA
(CT:VISA-1568; 10-04-2010)
a. Notwithstanding the visa classifications for which the CSPA does apply (see 9
FAM 42.42 N12.2), the CSPA does not apply to any alien:
(1) who, prior to August 6, 2002, the date the CSPA was enacted, had a final
decision on an IV application or adjustment of status application based on
an IV petition in which the applicant claimed to be a child; and
(2) who aged-out (i.e., had reached the age of 21) before August 6, 2002.
b. The CSPA applies only to IV classifications expressly specified in the statute.
The CSPA does not provide child age protection for nonimmigrant visas (NIVs)
(e.g. K or V). Additionally, beneficiaries of petitions and their derivatives under
the following programs are not specifically provided for in the CSPA:
Nicaraguan Adjustment and Central American Relief Act (NACARA, see 9
FAM 42.33 N1)
Haitian Refugee Immigrant Fairness Act (HRIFA)
Family Unity (see 9 FAM 40.92 N4.2)
Cuban Adjustment Act
Chinese Student Protection Act
Special Immigrant Juvenile (see 9 FAM 42.32(d)(6))

9 FAM 42.42 N12.4 Calculation of CSPA Age for
Preference Categories and Derivative Petitions
(CT:VISA-1910; 10-02-2012)
a. For preference category and derivative petitions, the CSPA age is determined
on the date that the visa, or in the case of derivative beneficiaries, the principal
aliens visa became available (i.e., the date on which the priority date became
current and the petition was approved, whichever came later). The CSPA age is


the result of subtracting the number of days that the IV petition was pending
with USCIS (from date of receipt to date of approval, including any period of
administrative review) from the actual age of the applicant on the date that the
visa became available. You should note that in some cases, such as
employment preferences cases based on the filing of a labor certification, the
priority date is not the same as the petition filing date. The petition filing and
petition approval dates are the only relevant dates. Time waiting for a labor
certification to be approved or for a priority date to become current is not taken
into account.
b. For DV cases the time period during which the petition is pending is
necessarily different. That time period is calculated using the first day of the
DV application period for the program year in which the principal alien qualified
and the date on which notifications that entrants had been selected become
available. That time difference will be subtracted from the derivative aliens
age on the date the visa becomes available to the principal alien. The date a
visa becomes available for a DV case is the first day on which the
principal aliens rank selection number is current for visa processing.
c. For SIV cases (other than special immigrants from Iraq and Afghanistan who
will have a petition approved by USCIS) the time period during which the
petition is pending is calculated using the time between approval by the
Department and when the consular post acts on the DS-1884. The date a visa
becomes available for an SIV case is the date on which the consular post acts
on the approved DS-1884.
d. If you need to determine the date on which a particular priority date first fell
within the cut-off date (for purposes of determining what the alien's age was on
the date the case became current), posts should refer to their monthly Visa
Bulletin files. Alternatively, officers may access this information through the
CCD:
(1) ) Go to the Consular Consolidated Database Web site, then go to the
"Public" tab and scroll down to the "IV Cutoff Dates by Visa Class." Here,
enter a post code and a time period.
(2) If post's records or this online site do not have the necessary information,
posts may contact CA/VO/F/I for further assistance on historical
movements of the cut-off dates. Posts should note that in following to join
cases the date of first visa availability is not the date when the principal
alien adjusted status in the U.S. Adjustment of status often does not take
place until long after a visa is first available to the principal alien.
e. If an alien benefits from both the 45-day provision of the USA PATRIOT Act (see
9 FAM 42.42 N3.1 paragraph d) and the age-out protection in the CSPA, posts
should apply both statutes to the advantage of the alien beneficiary. (See 9
FAM 42.42 N12.8.)
f. While the CSPA may prevent the alien's age from changing, the alien must still


meet the other criteria for "child" status, including being unmarried. Therefore,
if the alien marries, the alien will lose "child" status (even though the alien's
age, for immigration purposes, may be under 21 as a result of the CSPA). A
subsequent divorce may not restore child status if it occurs after the childs
21st birthday.

9 FAM 42.42 N12.5 Conversion of Petition Status
(CT:VISA-1568; 10-04-2010)
CSPA coverage may vary depending on the changed circumstances affecting visa
petitions, as noted in some of the examples below. This is true for both
immediate relative and preference beneficiaries.

9 FAM 42.42 N12.5-1 Visa Classification Under an IR Category
(CT:VISA-1568; 10-04-2010)
a. For IR and IB cases, if the alien beneficiary is under the age of 21 on the date
of the petition filing, mathematically the alien cannot age-out. The alien
beneficiary will qualify as a child as long as he or she does not marry.
b. For petitions filed for an alien beneficiary as the child of a lawful permanent
resident (LPR) where the petition was subsequently changed to an immediate
relative petition due to the naturalization of the parent while the alien
beneficiary was younger than 21, then mathematically the alien cannot age out.

9 FAM 42.42 N12.5-2 Visa Classification Under a Preference
Category
(CT:VISA-1568; 10-04-2010)
a. If it is determined that the child of the beneficiary of a second preference
petition is over the age of 21 for CSPA purposes, and the petitioner naturalizes,
the petition is automatically converted to either first or third preference
(provided the marriage occurred after the naturalization of the petitioner). In
such instances the beneficiary will retain the priority date.
b. Beneficiaries of family second preference petitions filed as F2B that were
automatically converted to family first preference F1 upon the petitioning
parents naturalization may exercise the right to opt-out of the conversion.
This also applies even if the petition in question was originally filed in the F2A
category but has now been converted to F2B. Such automatic conversion from
second to first preference status could disadvantage an applicant due to the
less favorable cut-off dates for certain oversubscribed nationalities.
c. Currently, only USCIS can approve opt-out requests. Petitioners,
beneficiaries, and their legal representatives should be advised that they must
file a request in writing with the USCIS District Office having jurisdiction over


the beneficiarys place of residence (see 9 FAM Appendix N, Exhibit II). The
District Office should notify the appropriate visa issuing office if the request has
been approved.
d. For a derivative beneficiary in family and employment based cases, DV cases,
and SIV cases, if the derivative beneficiarys CSPA age is under 21, the alien
must seek to acquire lawful permanent resident (LPR) status within one year of
visa availability in order for CPSA coverage to continue (see 9 FAM 42.42
N12.6). Be aware, however, that retrogression of visa numbers that affects
visa availability during that year may extend possible CSPA coverage (see 9
FAM 42.42 N12.7 Retrogression of Visa Numbers).

9 FAM 42.42 N12.6 Sought to Acquire LPR Status
Provision
(CT:VISA-2085; 04-28-2014)
a. In family and employment-based preference, DV, and SIV cases the alien must
seek to acquire LPR status within one year of visa availability. The one year
requirement does not apply in IR or immediate beneficiary IB cases. The one
year requirement generally means that the applicant must have submitted the
completed Form DS-260 within one year of a visa becoming available. (Note
that you can also accept submission of Form DS-230, the form that preceded
Form DS-260). However, if the principal applicant adjusted to LPR status in the
United States and the derivative seeks a visa to follow to join, then the law
requires generally that the principal has filed a Form I-824 within one year of a
visa becoming available. The submission of a Form DS-260 that covers only
the principal applicant will not serve to meet the requirement for the alien child.
You should be aware that because the Form I-824 did not have a field
specifically to list derivative beneficiaries, there is no requirement that the
principal applicant attempt to amend the form to reflect the names of derivative
applicants. Therefore, the timely filing of the Form I-824 by the principal
applicant in the United States will meet the CSPA requirement to seek to
acquire LPR status within one year of visa availability. The filing of a Form I-
485, Application to Adjust Status, by the principal alien in the United States
does not satisfy the sought to acquire provision on behalf of a following to join
derivative.
b. INA 203(h) requires that an alien beneficiary seek to acquire LPR status within
one year, not that the alien actually did so acquire such status within one year.
Therefore if the alien files a Form DS-260 but has his or her IV refused or is the
beneficiary of a Form I-824 that is denied, the act of filing FormDS-260 or Form
I-824 still satisfies the statute.


9 FAM 42.42 N12.7 Retrogression of Visa Numbers
(CT:VISA-1568; 10-04-2010)
In order to seek to acquire lawful permanent residence an alien beneficiary must
actually have one full year of visa availability. If a visa availability date
retrogresses (e.g., employment-based third preference numbers are unavailable)
or the preference category changes (e.g., F1 converts to F3) within one year of
visa availability and the visa applicant has not yet sought to acquire LPR status,
then once a visa number becomes available again the one year period starts over.
The alien beneficiarys age under the CSPA is redetermined using the subsequent
visa availability date.

9 FAM 42.42 N12.8 Applicants Qualifying Under
Section 424 of the USA PATRIOT Act or the CSPA
(CT:VISA-1754; 10-24-2011)
a. In all cases in which an applicant qualifies under section 424 of the USA
PATRIOT Act for visa validity for 45 days beyond the applicants 21st birthday,
the visa should be issued for the additional 45 days. The USA PATRIOT Act
applies to petitions filed on or before September 11, 2001 for which the
applicant aged out after September 11, 2001.
b. Posts must override the age 21 cutoff date in the IV software in order to apply
the extra days. Some cases will qualify under the 45 days of the USA PATRIOT
Act and the CSPA. In those cases the 45 days of the USA PATRIOT Act should
be included in calculation of the aliens age under the CSPA (see 9 FAM 42.42
12.4 paragraph e).
c. Any post that is not able to process either a USA PATRIOT Act case or a CSPA
case to conclusion using the IV system should request assistance from the CA
support Desk or by e-mail at CAServiceDesk@state.gov.
d. For more information on processing applicants qualifying under the USA
PATRIOT Act, see 9 FAM 42.42 N3.

9 FAM 42.42 N12.9 Consular Processing in CSPA Cases
- Advisory Opinions
(CT:VISA-2085; 04-28-2014)
a. The Department recognizes the complexity of the CSPA legislation. Advisory
opinions (AOs) should be submitted to the Department (CA/VO/L/A) in two
specific instances:
(1) If the alien applied before August 6, 2002 and was refused under 221(g) or
on some other ground besides aging-out, but that other refusal ground
has been overcome/waived; or


(2) If the officer encounters a case involving a derivative following to join a
legally admitted immigrant, or adjusted principal, who has not filed Form I-
824, Application for Action on an Approved Application or Petition, on the
derivatives behalf within the required time frame, but the consular officer
determined that the derivative has taken some other concrete step to
obtain LPR status within the required one year time frame.
b. If post has any questions about the applicability of the CSPA in a particular
case, an advisory opinion request may be submitted to the Department
(CA/VO/L/A). Any such requests should include the following information:
(1) ) The alien's date of birth;
(2) ) The IV category;
(3) Whether the alien is a principal or derivative;
(4) Whether the petitioner naturalized and, if so, the date of naturalization;
(5) ) The alien's marital status and, if ever married, the dates of marriage
and dates of divorces;
(6) ) The priority date of the petition;
(7) ) The date the petition was filed;
(8) ) The date the petition was approved;
(9) ) The date the priority date became current;
(10) The alien's age on the date that a visa became available (i.e., age on date
of petition approval or on date priority date became current, whichever is
later);
(11) The date the alien submitted the Form DS-230 Part I, Form DS-260 or the
date the principal filed Form I-824;
(12) The date(s) the principal and relevant derivative alien applied for the IV;
and
(13) If any IV application(s) were made prior to the effective date of the CSPA,
the outcome of the prior application(s).


9 FAM 42.42 N13 PETITIONS THAT CANNOT BE
APPROVED


9 FAM 42.42 N13.1 Certain Second Preference
Petitions by Aliens Attaining Lawful Permanent
Resident (LPR) Status on Basis of Previous Marriage
(CT:VISA-1910; 10-02-2012)
The following conditions must be met before a second preference petition can be
approved for the spouse of an alien who obtained lawful permanent resident (LPR)
status through an earlier marriage:
(1) Petitioner has been a permanent resident for at least five years; or
(2) Petitioners prior marriage on the basis of which the alien obtained LPR was
terminated through the death of the spouse; or
(3) Petitioner establishes by clear and convincing evidence that the prior
marriage was not entered into for the purpose of evading immigration
laws.

9 FAM 42.42 N13.1-1 Petitions Filed at Consular Offices Abroad
(CT:VISA-1568; 10-04-2010)
If a consular officer is presented a petition for approval and is satisfied that the
petitioner has been a permanent resident for at least five years, or that the
previous marriage was terminated through the death of the spouse, the consular
officer may approve such petitions. However, consular officers must consider all
other petitions filed by a petitioner who attained LPR status on the basis of a
previous marriage, not clearly approvable and should send them, along with the
supporting documents, to DHS. (See 9 FAM 42.41 N4.)

9 FAM 42.42 N13.1-2 Petitions Approved by Department of
Homeland Security (DHS)
(CT:VISA-1568; 10-04-2010)
If the consular officer receives a DHS-approved petition and upon review
determines that the petitioners previous marriage, which served as the basis for
attaining LPR status, appears to have been entered into solely to evade the
immigration law, the consular officer must return the petition to the DHS
approving office for review and possible revocation. (See 9 FAM 42.43 N2.2.)


9 FAM 42.42 N13.2 Petitions Based on Marriage
Occurring While Alien is in Exclusion or Deportation
Proceedings or Related Judicial Proceedings

9 FAM 42.42 N13.2-1 Background
(CT:VISA-1568; 10-04-2010)
a. The Marriage Fraud Amendment Act of 1986 (Public Law 99-639), prohibits the
approval of petitions for aliens seeking to receive an immigrant visa (IV) on the
basis of a marriage which was entered into after November 10, 1986, and while
administrative or judicial proceedings were pending regarding the aliens right
to enter or remain in the United States until the alien has resided outside the
United States for a two-year period beginning after the date of the marriage.
b. Section 702 of the Immigration Act of 1990 (Public Law 101-649), amended
INA 204 (8 U.S.C. 1154) and INA 245 (8 U.S.C. 1255), to provide for an
exception to the prohibition if there is clear and convincing evidence that the
marriage was entered into in good faith. (See 9 FAM 42.42 Related Statutory
Provisions.)

9 FAM 42.42 N13.2-2 Two-Year Residency Outside United
States
(CT:VISA-1568; 10-04-2010)
a. A petition may not be approved to grant an alien immediate relative (IR) status
or preference status by reason of a marriage which was entered into during
administrative or judicial proceedings regarding the aliens right to be admitted
or remain in the United States until the alien has resided outside the United
States for a two-year period commencing after the date of the marriage.
b. An exception to the above may be made if there is clear and convincing
evidence that the marriage was entered into in good faith.

9 FAM 42.42 N13.2-3 Petitions Not Clearly Approvable
(CT:VISA-1910; 10-02-2012)
Consular officers receiving a petition which appears to fall within the category
described in 9 FAM 42.42 N13.1-1 above must consider the petition not clearly
approvable and must send the petition, along with the supporting documents to
DHS for reaffirmation or revocation.


9 FAM 42.42 N13.3 Aliens Attempting or Conspiring to
Enter Into Marriage to Evade Immigration Laws
(CT:VISA-1568; 10-04-2010)
Section 204(c) of the Marriage Fraud Amendment Act of 1986 prohibits the
approval of a visa petition filed on behalf of an alien who has been accorded, or
sought to be accorded, an IR or preference status as the spouse of a citizen of the
United States or the spouse of an alien lawfully admitted for permanent residence,
by reason of a marriage determined by the Attorney General to have been entered
into for the purpose of evading the immigration laws or the Attorney General has
determined that the alien has attempted or conspired to enter into a marriage for
the purpose of evading the immigration laws. The petition should be denied
regardless of whether the alien received a benefit through the attempt or
conspiracy. Although it is not necessary for the alien to have been convicted of, or
even prosecuted for, the attempt or conspiracy, the evidence must be documented
in the aliens file.

9 FAM 42.42 N13.3-1 Petitions Filed at Consular Offices Abroad
(CT:VISA-1568; 10-04-2010)
If the consular officer is presented with such a petition for approval, the petition
should be considered not clearly approvable and should be sent, along with the
supporting documents, to the appropriate DHS regional office.

9 FAM 42.42 N13.3-2 Petitions Filed with Department of
Homeland Security (DHS)
(CT:VISA-1568; 10-04-2010)
If the consular officer receives a DHS-approved petition and upon review
determines that the marriage was entered into for the purpose of evading the
immigration laws, the consular officer must return the petition to the National Visa
Center (NVC), which will forward to DHS for review and possible revocation. (See
9 FAM 42.43 N3.)


9 FAM 42.42 N14 NATURALIZATION
SUBSEQUENT TO PETITION
(CT:VISA-1568; 10-04-2010)
See 9 FAM 42.21 N6.


9 FAM 42.42 N15 VISA PETITION REVOCATION


(CT:VISA-1568; 10-04-2010)
See 9 FAM 42.43 Related Statutory Provisions.




9 FAM 42.42
PROCEDURAL NOTES
(CT:VISA-1910; 10-02-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.42 PN1 INQUIRING ABOUT THE
STATUS OF PETITIONS
(TL:VISA-563; 08-01-2003)
Posts normally should not send telegrams to the Department or directly to
Department of Homeland Security (DHS) inquiring about the status of petitions.
As an alternative, the consular officer should advise an alien seeking such
assistance to ask the petitioner to obtain the information on the pending visa
petition directly from DHS. Petitioners should direct such information inquiries to
the DHS Service Center with which the petition was filed. Posts may submit to the
Department cases which have public relations significance, however, stating the
reasons for such action in the post's telegram.


9 FAM 42.42 PN2 RECOMMENDING
REINSTATEMENT OF PETITION
(CT:VISA-1412; 03-29-2010)
a. If the consular officer believes that a petition revoked under 8 CFR 205.1(a)(3)
warrants DHS consideration for humanitarian reasons, the consular officer shall
prepare a memorandum requesting such consideration and forward it with the
petition to DHS. In evaluating requests for reinstatement of a petition under
such circumstances, DHS has considered the following factors:
(1) Disruption of an established family unit;
(2) Hardship to U.S. citizens or lawful permanent residents;
(3) If beneficiary is elderly or in poor health;
(4) If beneficiary has had lengthy residence in the United States;
(5) If beneficiary has no home to go to;
(6) Undue delay by DHS or consular officer in processing petition and visa; and
(7) If beneficiary has strong family ties in the United States.
b. In the case of a petition approved by a stateside Department of Homeland
Security (DHS) office, the consular officer shall send the memorandum and


petition through the National Visa Center (NVC) (see 9 FAM 42.43 N3) to the
DHS District Director having jurisdiction over the petitioners place of residence
in the United States. If the petition was approved either by an DHS officer
abroad or by a consular officer, the consular officer shall send the petition and
memorandum to the DHS District Director having jurisdiction over the DHS
office or the consular post abroad.
c. If the consular officer does not believe that the humanitarian reasons are
sufficient to warrant DHS action, but the alien beneficiary or other interested
party inquires about such action, the consular officer shall instruct the
individual concerned to communicate with the approving DHS office.


9 FAM 42.42 PN3 DETERMINING DERIVATIVE
STATUS WHEN PRINCIPAL ADJUSTS
(CT:VISA-1363; 10-28-2009)
a. When the principal alien in a preference status who acquires permanent
resident status by adjustment under INA 245 indicates that he or she has
family who will follow-to-join, DHS generally sends the Form I-895, Attestation
of Alien and Memorandum of Creation of Record of Lawful Permanent
Residence, to the consular office at the time of the principal aliens adjustment.
If, however, the Form I-895 has not been received, and the consular officer
cannot determine that the principal aliens date of admission was prior to the
cut-off date for the numerical limitation applicable to the spouse or child, the
consular officer must seek verification of the principal aliens admission to the
United States from DHS directly to accord the family derivative status under
INA 203(d).
b. See 9 FAM 40.41 N5.5 for the Form I-864, Affidavit of Support Under Section
213A of the Act, requirement in such cases.

9 FAM 42.42 PN3.1 Post Records
(CT:VISA-1910; 10-02-2012)
a. In some instances, the post will have processed the principal alien's visa and
will indicate the:
(1) Visa classification;
(2) Date of visa issuance;
(3) Chargeability; and
(4) Priority date.
b. Based on this record, post can easily verify and process the family member's
visa applications.


9 FAM 42.42 PN3.2 Form I-551, Permanent Resident
Card
(TL:VISA-185; 02-26-1999)
Apart from a complete file at post, the principal alien's Form I-551, Permanent
Resident Card, is probably the best evidence of lawful permanent resident status.
The Form I-551 indicates the visa category and date of entry into the United
States. Posts are advised, however, that a resident alien does not receive a Form
I-551 immediately. The demand on the Department of Homeland Security (DHS)
card facilities to produce an increasing variety and number of cards has
significantly increased the waiting period for the Permanent Resident Cards. The
wait for a card can be up to a year, and, in some cases, even longer. Posts are,
therefore, cautioned not to require the Form I-551 as a prerequisite for all
following-to-join cases.

9 FAM 42.42 PN3.3 Alien Documentation and
Identification System (ADIT) Stamps
(CT:VISA-1412; 03-29-2010)
a. When an immigrant enters the United States, DHS endorses his or her passport
with an ADIT stamp. The ADIT stamp shows the:
(1) Date of entry into the United States;
(2) Visa category; and
(3) Employment authorization.
b. This is the only evidence that the resident alien will carry until the Form I-551,
Permanent Resident Card, is received. ADIT stamps have, however, proven to
be highly susceptible to fraud and thus should be cautiously accepted as
primary evidence of following-to-join status. However, an ADIT stamp can be a
very useful secondary evidence; indicating that the individual may have a claim
to derivative status and/or as a source of necessary data that may be missing
from a file.

9 FAM 42.42 PN3.4 Form I-824, Application for Action
on an Approved Application or Petition
(CT:VISA-1910; 10-02-2012)
Lawful permanent residents (LPRs) who obtained status by adjustment of status in
the United States, can request that Department of Homeland Security (DHS) send
the Form I-824, Application for Action on an Approved Application or Petition, to
post as verification of their status. The Form I-824 provides the information
necessary to process a following-to-join case. At the LPR's request, DHS will
sometimes send a cable to post verifying the principal alien's resident status.


9 FAM 42.42 PN4 SELF-PETITIONING FOR
BATTERED SPOUSES AND CHILDREN
(TL:VISA-563; 08-01-2003)
A self-petition cannot be filed or accepted at a U.S. embassy or consulate abroad.
A self-petition also cannot be filed at a DHS Service office abroad; it must be filed
at the DHS Vermont Service Center. The Vermont Service Center has been
designated to handle all petitions filed by self-petitioning battered aliens. The
Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, should be
mailed to:
DHS Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479-0001
ATTN: Family Service Product Line (VAWA)


9 FAM 42.42 PN5 APPLICANTS QUALIFYING
UNDER SECTION 424 OF THE USA PATRIOT ACT
(CT:VISA-846; 11-01-2006)
In all cases in which an applicant qualifies under Section 424 of the USA Patriot
Act for visa validity for 45 days beyond the applicants 21st birthday, the visa
should be issued for the additional 45 days. Posts must override the age 21 cutoff
date in the Immigrant Visa (IV) software in order to apply the extra days.






9 FAM 42.43
SUSPENSION OR TERMINATION OF
ACTION IN PETITION CASES
(CT:VISA-1418; 04-09-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.43 RELATED STATUTORY
PROVISIONS
(CT:VISA-985; 07-29-2008)

See INA 203(g) (8 U.S.C. 1153(g))

INA 203(g)
g. Lists

For purposes of carrying out the Secretarys responsibilities in the orderly
administration of this section, the Secretary of State may make
reasonable estimates of the anticipated numbers of visas to be issued
during any quarter of any fiscal year within each of the categories under
subsections (a), (b), and (c) of this section and to rely upon such
estimates in authorizing the issuance of visas. The Secretary of State
shall terminate the registration of any alien who fails to apply for an
immigrant visa within one year following notification to the alien of the
availability of such visa, but the Secretary shall reinstate the registration
of any such alien who establishes within 2 years following the date of
notification of the availability of such visa that such failure to apply was
due to circumstances beyond the aliens control.


9 FAM 42.43 RELATED REGULATORY
PROVISIONS
(CT:VISA-1418; 04-09-2010)

See 22 CFR 42.43 and 8 CFR 205

22 CFR 42.43 Suspension or termination of action in petition cases.




(a) Suspension of action. The consular officer shall suspend action in a
petition case and return the petition, with a report of the facts, for
reconsideration by DHS if the petitioner requests suspension of action, or
if the officer knows or has reason to believe that approval of the petition
was obtained by fraud, misrepresentation, or other unlawful means, or
that the beneficiary is not entitled, for some other reason, to the status
approved.

(b) Termination of action.

(1) The consular officer shall terminate action in a petition case upon
receipt from DHS of notice of revocation of the petition in
accordance with DHS regulations.

(2) The consular officer shall terminate action in a petition case subject
to the provisions of INA 203(g) in accordance with the provisions of
Sec. 42.83.

8 CFR 205.1 Automatic Revocation

(a) Reasons for automatic revocation. The approval of a petition or self-
petition made under section 204 of the Act and in accordance with part
204 of this chapter is revoked as of the date of approval:

(1) If the Secretary of State shall terminate the registration of the
beneficiary pursuant to the provisions of section 203(e) of the Act
before October 1, 1991, or section 203(g) of the Act on or after
October 1, 1994;

(2) If the filing fee and associated service charge are not paid within 14
days of the notification to the remitter that his or her check or other
financial instrument used to pay the filing fee has been returned as
not payable; or

(3) If any of the following circumstances occur before the beneficiary's
or self-petitioner's journey to the United States commences or, if
the beneficiary or self-petitioner is an applicant for adjustment of
status to that of a permanent resident, before the decision on his or
her adjustment application becomes final:

(i) Immediate relative and family-sponsored petitions,
other than Amerasian petitions:

(A) Upon written notice of withdrawal filed by the petitioner or
self-petitioner with any officer of the Service who is
authorized to grant or deny petitions;




(B) Upon the death of the beneficiary or the self-petitioner; or

(C) Upon the death of the petitioner, unless:

(1) The petition is deemed under 8 CFR 204.2(i)(1)(iv) to
have been approved as a Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant, under 8 CFR 204.2(b); or

(2) U.S. Citizenship and Immigration Services (USCIS)
determines, as a matter of discretion exercised for
humanitarian reasons in light of the facts of a particular case,
that it is inappropriate to revoke the approval of the petition.
USCIS may make this determination only if the principal
beneficiary of the visa petition asks for reinstatement of the
approval of the petition and establishes that a person related
to the principal beneficiary in one of the ways described in
section 213A(f)(5)(B) of the Act is willing and able to file an
affidavit of support under 8 CFR part 213a as a substitute
sponsor.

(D) Upon the legal termination of the marriage when a citizen or
lawful permanent resident of the United States has petitioned
to accord his or her spouse immediate relative or family-
sponsored preference immigrant classification under section
201(b) or section 203(a)(2) of the Act. The approval of a
spousal self-petition based on the relationship to an abusive
citizen or lawful permanent resident of the United States filed
under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act,
however, will not be revoked solely because of the
termination of the marriage to the abuser;

(E) Upon the remarriage of the spouse of an abusive citizen or
lawful permanent resident of the United States when the
spouse has self-petitioned under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act for immediate relative classification
under section 201(b) of the Act or for preference classification
under section 203(a)(2) of the Act;

(F) Upon a child reaching the age of 21, when he or she has been
accorded immediate relative status under section 201(b) of
the Act. A petition filed on behalf of a child under section
204(a)(1)(A)(i) of the Act or a self-petition filed by a child of
an abusive United States citizen under section
204(a)(1)(A)(iv) of the Act, however, will remain valid for the
duration of the relationship to accord preference status under
section 203(a)(1) of the Act if the beneficiary remains




unmarried, or to accord preference status under section
203(a)(3) of the Act if he or she marries;

(G) Upon the marriage of a child, when he or she has been
accorded immediate relative status under section 201(b) of
the Act. A petition filed on behalf of the child under section
204(a)(1)(A)(i) of the Act or a self-petition filed by a child of
an abusive United States citizen under section
204(a)(1)(A)(iv) of the Act, however, will remain valid for the
duration of the relationship to accord preference status under
section 203(a)(3) of the Act if he or she marries;

(H) Upon the marriage of a person accorded preference status as
a son or daughter of a United States citizen under section
203(a)(1) of the Act. A petition filed on behalf of the son or
daughter, however, will remain valid for the duration of the
relationship to accord preference status under section
203(a)(3) of the Act;

(I) Upon the marriage of a person accorded status as a son or
daughter of a lawful permanent resident alien under section
203(a)(2) of the Act; or

(J) Upon legal termination of the petitioner's status as an alien
admitted for lawful permanent residence in the United States
unless the petitioner became a United States citizen. The
provisions of 8 CFR 204.2(i)(3) shall apply if the petitioner
became a United States citizen.

(ii) Petition for Public Law 97-359 Amerasian:

(A) Upon formal notice of withdrawal filed by the petitioner with
the officer who approved the petition;

(B) Upon the death of the beneficiary;

(C) Upon the death or bankruptcy of the sponsor who executed
Form I-361, Affidavit of Financial Support and Intent to
Petition for Legal Custody, for Public Law 97-359 Amerasian.
In that event, a new petition may be filed in the beneficiary's
behalf with the documentary evidence relating to sponsorship
and, in the case of a beneficiary under 18 years of age,
placement. If the new petition is approved, it will be given
the priority date of the previously approved petition;

(D) Upon the death or substitution of the petitioner if other than
the beneficiary or sponsor. However, if the petitioner dies or




no longer desires or is able to proceed with the petition, and
another person 18 years of age or older, an emancipated
minor, or a corporation incorporated in the United States
desires to be substituted for the deceased or original
petitioner, a written request may be submitted to the Service
or American consular office where the petition is located to
reinstate the petition and restore the original priority date;

(E) Upon the beneficiary's reaching the age of 21 when the
beneficiary has been accorded classification under section
201(b) of the Act. Provided that all requirements of section
204(f) of the Act continue to be met, however, the petition is
to be considered valid for purposes of according the
beneficiary preference classification under section 203(a)(1)
of the Act if the beneficiary remains unmarried or under
section 203(a)(3) if the beneficiary marries; or

(F) Upon the beneficiary's marriage when the beneficiary has
been accorded classification under section 201(b) or section
203(a)(1) of the Act. Provided that all requirements of
section 204(f) of the Act continue to be met, however, the
petition is to be considered valid for purposes of according the
beneficiary preference classification under section 203(a)(3)
of the Act.

(iii) Petitions under section 203(b), other than special
immigrant juvenile petitions:

(A) Upon invalidation pursuant to 20 CFR Part 656 of the labor
certification in support of the petition;

(B) Upon the death of the petitioner or beneficiary;

(C) Upon written notice of withdrawal filed by the petitioner, in
employment-based preference cases, with any officer of the
Service who is authorized to grant or deny petitions; or

(D) Upon termination of the employer's business in an
employment-based preference case under section
203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the
Act.

(iv) Special immigrant juvenile petitions. Unless the
beneficiary met all of the eligibility requirements as of
November 29, 1990, and the petition requirements as of
November 29, 1990, and the petition for classification as a




special immigrant juvenile was filed before June 1, 1994, or
unless the change in circumstances resulted from the
beneficiary's adoption or placement in a guardianship
situation:

(A) Upon the beneficiary reaching the age of 21;

(B) Upon the marriage of the beneficiary;

(C) Upon the termination of the beneficiary's dependency upon
the juvenile court;

(D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or

(E) Upon the determination in administrative or judicial
proceedings that it is in the beneficiary's best interest to be
returned to the country of nationality or last habitual
residence of the beneficiary or of his or her parent or parents.

(b) Notice. When it shall appear to the director that the approval of a
petition has been automatically revoked, he or she shall cause a notice of
such revocation to be sent promptly to the consular office having
jurisdiction over the visa application and a copy of such notice to be
mailed to the petitioner's last known address.

205.2 Revocation on Notice

(a) General. Any Service officer authorized to approve a petition under
section 204 of the Act may revoke the approval of that petition upon
notice to the petitioner on any ground other than those specified in 205.1
when the necessity for the revocation comes to the attention of this
Service.

(b) Notice of intent. Revocation of the approval of a petition or self-
petition under paragraph (a) of this section will be made only on notice to
the petitioner or self-petitioner. The petitioner or self-petitioner must be
given the opportunity to offer evidence in support of the petition or self-
petition and in opposition to the grounds alleged for revocation of the
approval.

(c) Notification of revocation. If, upon reconsideration, the approval
previously granted is revoked, the director shall provide the petitioner or
the self-petitioner with a written notification of the decision that explains
the specific reasons for the revocation. The director shall notify the
consular officer having jurisdiction over the visa application, if applicable,
of the revocation of an approval.




(d) Appeals. The petitioner or self-petitioner may appeal the decision to
revoke the approval within 15 days after the service of notice of the
revocation. The appeal must be filed as provided in part 3 of this
chapter, unless the Associate Commissioner for Examinations exercises
appellate jurisdiction over the revocation under part 103 of this chapter.
Appeals filed with the Associate Commissioner for Examinations must
meet the requirements of part 103 of this chapter.




9 FAM 42.43
NOTES
(CT:VISA-1894; 09-20-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.43 N1 SUSPENDING ACTION IN
PETITION CASES
(CT:VISA-1433; 05-27-2010)
a. The Department of Homeland Security (DHS) possesses exclusive authority
over the approval and denial of immigrant visa petitions (except for those filed
for aliens classifiable under INA 203(c) (8 U.S.C. 1153(c)) or INA
101(a)(27)(D)) (8 U.S.C. 1101(a)(27)(D)). You should bear in mind that the
Department considers the approval of a visa petition prima facie evidence of
the relationship between the petitioner and the beneficiary.
b. Therefore, it is your responsibility to review, not to readjudicate petitions.
However, in the course of that review, if you obtain sufficient facts so that you
know or have reason to believe that the beneficiary is not entitled to the status
approved in the petition you will return the petition to the U.S. Citizenship &
Immigration Services (USCIS) through the National Visa Center (NVC).


9 FAM 42.43 N2 WHEN TO RETURN PETITIONS
(CT:VISA-872; 03-23-2007)
You will suspend action and return the petition to USCIS (see 9 FAM 42.43 N3)
through NVC if:
(1) ) The petitioner requests suspension of action;
(2) ) You know, or have reason to believe the petition approval was obtained
by fraud, misrepresentation, or other unlawful means; or
(3) ) You know or have reason to believe that, despite the absence of fraud,
due to changed circumstances or clear error in approving the petition the
beneficiary is not entitled to the approved status.


9 FAM 42.43 N2.1 "Reason to Believe"
(CT:VISA-872; 03-23-2007)
In general, knowledge and reason to believe must be based upon evidence that
USCIS did not have available at the time of adjudication and that such evidence, if
available, would have resulted in the petition being denied. This evidence often
arises as a result of or during the interview of the beneficiary. Reason to believe
must be more than mere conjecture or speculationthere must exist the
probability, supported by evidence, that the alien is not entitled to status.

9 FAM 42.43 N2.2 Cases of Sham Marriages
(CT:VISA-872; 03-23-2007)
USCIS has minimum evidentiary standards that must be established before
revocation proceedings in a case based upon a marital relationship may begin.
These minimum evidentiary standards are:
(1) A written statement from one or both of the parties to the marriage that
the marriage was entered into primarily for immigration purposes;
(2) Documentary evidence that money changed hands under circumstances
such that a reasonable person would conclude the marriage was a paid
arrangement for immigration purposes; or
(3) Extensive factual evidence developed by the consular officer that would
convince a reasonable person that the marriage was a sham marriage
entered into to evade immigration laws.


9 FAM 42.43 N3 RETURNING PETITIONS
(CT:VISA-1433; 05-27-2010)
When action is suspended you will:
(1) Prepare a memorandum which constitutes a comprehensive report to
USCIS explaining in detail the reasons why the beneficiary appears not to
be entitled to status (see 9 FAM 42.43 PN1);
(2) Send the petition along with Form DS-3096, IV Petition Revocation Request
Cover Sheet-National Visa Center, directly to:
National Visa Center
31 Rochester Ave.
Portsmouth, NH 03801
Attn: Fraud Prevention Manager
(3) If fraud is suspected, send a copy of the memorandum to the Department
(CA/FPP);
(4) ) Retain a copy of the petition, the supporting documents and the


memorandum. All immigrant visa petitions being returned for revocation
must contain the original petition along with the revocation request. If the
original petition has been lost or misplaced, please indicate this in your
revocation request memorandum; and
(5) It is mandatory to scan all revocation requests into the Consular
Consolidated Database (CCD), along with at least a minimal amount of
supporting documentation.


9 FAM 42.43 N4 REAFFIRMATION OF VISA
PETITIONS
(CT:VISA-872; 03-23-2007)
If USCIS reaffirms a petition which has been returned, and you have no additional
factual evidence to submit to support the belief that an alien is not entitled to
status, except in the rare cases discussed in 9 FAM 42.43 N4.1 below, you will
process the case to conclusion.

9 FAM 42.43 N4.1 When Consul Disagrees with
Reaffirmation But Has No Evidence
(CT:VISA-872; 03-23-2007)
a. In the rare case where you may irreconcilably disagree with the USCIS decision
to uphold the validity of the petition, if you have no new evidence to present
which was not previously considered by USCIS, you will send the entire case to
the Department (CA/VO/L/A) for review and discussion with USCIS/HQ. Such
referrals should be rare, however, since the burden of proof still rests with
USCIS and protracted delay without sufficient reason is unfair to the visa
applicant.
b. It should be remembered that USCIS bears a high burden of proof (good and
sufficient cause) in revocation proceedings. Although you may believe that the
evidence leads a reasonable person to believe that the alien is not entitled to
status, the evidence of record may not be sufficient to meet the higher
standard of proof required in these proceedings.

9 FAM 42.43 N4.2 Consul Disagrees with Reaffirmation
and Has New Evidence to Present
(CT:VISA-872; 03-23-2007)
Despite the fact that USCIS reaffirms the petition, if you discover substantial new
evidence not considered by USCIS in its decision to reaffirm, you may return the
petition to USCIS through NVC without referring the case to the Department
(CA/VO/L/A).


9 FAM 42.43 N5 RECONSTRUCTING
ERRONEOUSLY SUSPENDED EW3 PETITIONS
(CT:VISA-872; 03-23-2007)
a. If upon review, you determine that a petition was erroneously suspended and
returned to USCIS, posts should consider the petition to be readjudicated. In
accordance with 9 FAM 42.43 N3, posts should retain a copy of a petition, along
with the supporting documents, which is returned to USCIS. When applicants
reapply for a visa based on these petitions, you will strike the cancellation mark
for those labor certifications marked canceled. The labor certification should
now be treated as valid and marked in the upper right hand corner:
"OVERCOME: LABOR CERTIFICATION CANCELLATION REVERSED"
NOTE: The date, post and consular officer's signature should appear over the
post stamp.
b. If the post has not maintained a copy of part, or all, of the petition including the
labor certification, post is authorized to accept as valid a certified copy of the
petition or part of the petition, if there is no reason to believe that such copy is
materially different from the original. The post may also obtain documents
from the USCIS service center to which they originally returned the petition,
although USCIS may not have retained a copy.
c. If the post issued a visa based on the reconstructed petition, post should
package the petition under normal procedures with an additional official
notation to USCIS at the port-of-entry indicating that the petition has been
reconstructed by the consular officer, and has been cleared by USCIS/HQ and
should be accepted as valid. The official notification to the USCIS port-of-entry
should include the standard language - "Reconstructed Petition Approved" the
date, post and consular officer's signature over the post stamp on the first page
of the petition.


9 FAM 42.43 N6 EXTENDING PETITION
FOLLOWING PETITIONER'S DEATH
(CT:VISA-1894; 09-20-2012)
A petition automatically revoked, due to the death of the petitioner, may be
reinstated by USCIS if you believe that special humanitarian consideration
warrants reinstatement. (See 9 FAM 42.42 N2.2 for information on automatic
conversion of a Petition for Alien Relative, Form I-130, to a Petition for Amerasian
Widow(er), or Special Immigrant, Form I-360, upon the petitioner's death in the
case of an immediate relative spouse (now widow(er) of a U.S. citizen).


9 FAM 42.43 N7 INVESTIGATION REQUESTS
(CT:VISA-872; 03-23-2007)
In some cases you may determine that there is sufficient evidence to justify
requesting a USCIS investigation in order to combine USCIS findings with the
facts developed at post to make a case for revocation. You will submit such a case
to USCIS as an investigation request. (See 9 FAM 42.43 PN4.)


9 FAM 42.43 N8 DEPARTMENT OF HOMELAND
SECURITY (DHS) REGULATIONS GOVERNING
REVOCATION OF PETITIONS
(CT:VISA-1433; 05-27-2010)
DHS regulations governing the revocation of petitions are provided in 9 FAM
42.43, Related Statutory Provisions.


9 FAM 42.43 N9 TERMINATION OF ACTION
(CT:VISA-1433; 05-27-2010)
You will terminate action on a visa petition:
(1) Upon receipt of notification from USCIS that the petition has been revoked
under 8 CFR 205.1;
(2) If the petition is automatically revoked under 8 CFR 205.1; or
(3) If the petition is automatically revoked under INA 203(g) (8 U.S.C.
1153(g)). (See 9 FAM 42.43 PN2.)


9 FAM 42.43 N10 RETENTION / NONRETENTION
OF PRIORITY DATE WHEN PETITION REVOKED

9 FAM 42.43 N10.1 Petition Filed by Same Petitioner
for Same Beneficiary under Same Preference
(CT:VISA-1894; 09-20-2012)
When a visa petition has been approved, and subsequently a new petition by the
same petitioner is approved for the same preference classification on behalf of the
same beneficiary, regard the latter approval as a reaffirmation or reinstatement of
the validity of the original petition. This is not the case, however, when the
original petition has been terminated pursuant to section 203(g) of the Act, or


revoked pursuant to 8 CFR 205 or when an immigrant visa has been issued to the
beneficiary as a result of the petition approval. (See 9 FAM 42.83 Related
Statutory Provisions.)

9 FAM 42.43 N10.2 Family Preference Petition Filed by
Different Petitioner or According Different Preference

9 FAM 42.43 N10.2-1 Abandonment of LPR Status to Confer
More Beneficial Status
(CT:VISA-833; 08-16-2006)
There is no legal restriction preventing a lawful permanent resident (LPR) from
obtaining another immigrant visa in a different preference status in order to confer
derivative status on a spouse or child. There is also no requirement that the alien
resident abandon his LPR status.

9 FAM 42.43 N10.2-2 Priority Date Not Retained
(CT:VISA-1433; 05-27-2010)
The beneficiary of a new family preference petition may not retain the priority date
of a revoked petition if:
(1) ) The new petition accords a different preference status;
(2) ) The new petition is filed by a different petitioner; or
(3) ) The old petition was revoked under INA 203(g) (8 U.S.C. 1153(g)).
The preference priority date in such a case is the filing date of the new petition.

9 FAM 42.43 N10.3 Employment Preference Petition
Filed by Different Petitioner or According Different
Preference
(CT:VISA-1433; 05-27-2010)
A petition approved for an alien under INA 203(b)(1), (2) or (3) (8 U.S.C.
1153(b)(1), (2) or (3)) accords the alien the priority date of the approved petition
for any subsequently filed petition under INA 203(b)(1), (2) or (3) (8 U.S.C.
1153(b)(1), (2) or (3)). This priority date is maintained even if the petitioner is
different from the original petitioner. A petition revoked under INA 203(g), 204(e)
or 205 (8 U.S.C. 1153(g), 204(e) or 205) will not confer a priority date.




9 FAM 42.43
PROCEDURAL NOTES
(CT:VISA-1999; 06-11-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.43 PN1 RETURNING PETITIONS FOR
POSSIBLE REVOCATION
(CT:VISA-1999; 06-11-2013)
a. If U.S. Citizenship and Immigration Services (USCIS) requests the return of a
visa petition, or if you know or have reason to believe, that the alien beneficiary
of an approved petition is not entitled to the accorded status, you will return
the petition to USCIS through the National Visa Center (NVC). (See 9 FAM
42.43 N3.) No petition revocation requests should be sent directly to USCIS in
the United States. All cases that are immigrant visa (IV), and K, V, asylee and
refugee petitions being returned for revocation should be sent to NVC for
processing.
(1) ) The only exception to this will be that when Form I-130, Petition for Alien
Relative filed and approved overseas, or found not clearly approvable by
you, will be sent directly to the appropriate overseas USCIS regional office.
That office will make the determination on the request. Do not send
petitions initially filed at posts abroad to NVC. (See 9 FAM 42.41 N4.2-2
and 9 FAM Appendix N 201.)
(2) ) The original petition, along with all supporting documents, will be
returned along with Form DS-3096, IV Petition Revocation Request Cover
Sheet - National Visa Center, and a memorandum supporting the
recommendation for revocation. The report must be comprehensive,
clearly showing factual and concrete reasons for revocation. The report
must be well reasoned and analytical rather than conclusory. Observations
made by you cannot be conclusive, speculative, equivocal or irrelevant.
b. When returning petitions for revocation, include as much information as
possible. Provide documentation, including relevant translations, memoranda
of interviews, etc. USCIS must have the back-up documentation; just saying
something is so will not meet the evidentiary standards required of USCIS to
permit or sustain a revocation. If a case is being returned because the
petitioner and applicant failed a Deoxyribonucleic Acid (DNA) test, be sure to
include the DNA test results. When possible, take sworn statements, especially
when an applicant and/or petitioner admits during the interview that the
primary purpose of the relationship is to circumvent U.S. immigration laws.


Signed statements are of greater value than second hand reports. When a
statement is prepared in English by a non-native English speaker, it should be
proofread carefully. Posts can consult with CA/VO/L/A on cases where there
are questions or concerns over the sufficiency of evidence cited in the memo
supporting a petition return.
c. If returning a petition for revocation based on a local custom/law or religious
doctrine, be sure to include documentation of the custom/law/doctrine together
with an English translation. For example, if you are returning a petition
because a religious text that states a woman must wait a certain period of time
after divorcing in order to remarry, include a copy of the relevant passage for
the USCIS adjudicator to review. In most cases, USCIS will not have the ability
to look up local customs/laws or religious doctrines, so it is important for posts
to provide as much information as possible.
d. When post determines that a petition should be returned with a request for
revocation, the procedures set out in the revocation guide available on the
CA/FPP Web site should be followed. Additional assistance in writing revocation
memoranda can be found on the "Fraud Prevention Resources" page of the
Consular Affairs Intranet site which has sample revocation letters for a variety
of petition types.


9 FAM 42.43 PN2 PETITIONS TERMINATED
UNDER INA 203(G)

9 FAM 42.43 PN2.1 Post Action
(CT:VISA-1945; 11-21-2012)
When a registration is terminated under INA 203(g) posts must take the following
action:
(1) Send the applicant Final Notice of Cancellation of Registration, under
Section 203(g). (See 9 FAM 42.83 Related Statutory Provisions and 9 FAM
42.83 Notes);
(2) Destroy the petition; and
(3) Send a memorandum to NVC advising them of the destruction of the
petition.

9 FAM 42.43 PN2.2 National Visa Center Action
(CT:VISA-1945; 11-21-2012)
Upon notification of the termination of registration and the destruction of the visa
petition, NVC must make a record of the following information:


(1) The Aliens name;
(2) The Aliens date and place of birth;
(3) The Aliens priority date; and
(4) ) The date of termination of the petition.
This information will be made available to USCIS prior to granting of requests for
old priority dates.


9 FAM 42.43 PN3 DISCLOSING INFORMATION
FROM VISA FILES TO U.S. CITIZENSHIP AND
IMMIGRATION SERVICES (USCIS) IN PETITION
REVOCATION CASES
(CT:VISA-873; 03-23-2007)
a. Because petitioners have a right to know why their petitions are denied, or
approval is being revoked, all information provided to USCIS in revocation
proceedings which is not classified is subject to release by USCIS. In this
regard, information coming from sources which the post feels should be held
confidential and not released to the petitioner should be presented to USCIS in
a form which protects the identity of the source. All classified information
should be clearly identified as classified and not releasable to prevent accidental
release by USCIS.
b. As the final statutory responsibility for evaluating the factual evidence and
drawing legal conclusions rests with USCIS, posts should take care to present
the factual record developed pertaining to the provability of the petition and
avoid unnecessary evaluative or conclusive comments and the inclusion of
information not directly relevant to the issue. Posts should also refrain from
including derogatory characterizations and emotionally charged or imprecise
phrases in reports to USCIS. These remarks have little evidentiary value, and
may prove embarrassing when they end up in the hands of the petitioner. (For
release of information directly by you, to the petitioner see 9 FAM 40.4 Related
Statutory Provisions and 9 FAM 40.4 Notes.)


9 FAM 42.43 PN4 PREPARING INVESTIGATION
REQUESTS
(CT:VISA-897; 06-19-2007)
It is essential in preparing this type of case to specify exactly what aspects of the
case should be pursued in the United States. For USCIS to make a case for
revocation, they must have all the facts developed overseas as well as those facts


developed in the course of their investigation. You should carefully set forth all
the facts that can reasonably be developed to be included in the memo requesting
the investigation. You should include the originals of all documents that have a
bearing on the case as evidence.


9 FAM 42.43 PN5 RECEIVING REQUESTS FROM
PETITIONER, APPLICANT OR REPRESENTATIVE
(CT:VISA-873; 03-23-2007)
If post receives a request from the petitioner, applicant, or
attorney/representative on the status of a petition that has been returned to
USCIS for revocation, post should refer the requestor to the USCIS office that
adjudicated the petition, not to NVC. Petitions sent to NVC are only retained for a
short time before they are sent to USCIS. It may be helpful for post to remember
that processing and investigations at NVC are internal and non-adjudicatory,
meaning that NVCs results and conclusions are advisory only for posts and USCIS
but have no legal effect. Therefore, it is important that petitioners, applicants,
and attorney/representatives not be referred to NVC.




9 FAM 42.44
CHANGES TO DNA RELATIONSHIP TESTING
PROCEDURES
(CT:VISA-1947; 12-06-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.44 RELATED STATUTORY PROVISIONS
(CT:VISA-1947; 12-06-2012)
See INA 222(b);
INA 222(b)
Every alien applying for an immigrant visa shall present a valid unexpired passport
or other suitable travel document, or document of identity and nationality, if such
document is required under the regulations issued by the Secretary of State. The
immigrant shall furnish to the consular officer with his application a copy of a
certification by the appropriate police authorities stating what their records show
concerning the immigrant; a certified copy of any existing prison record, military
record, and record of his birth; and a certified copy of all other records or
documents concerning him or his case which may be required by the consular
officer. The copy of each document so furnished shall be permanently attached to
the application and become a part thereof. In the event that the immigrant
establishes to the satisfaction of the consular officer that any document or record
required by this subsection is unobtainable, the consular officer may permit the
immigrant to submit in lieu of such document or record other satisfactory evidence
of the fact to which such document or record would, if obtainable, pertain. All
immigrant visa applications shall be reviewed and adjudicated by a consular
officer.
See also 22 CFR 42.65 Supporting documents.
b. Basic documents required. An alien applying for an immigrant visa shall be
required to furnish, if obtainable: A copy of a police certificate or certificates; a
certified copy of any existing prison record, military record, and record of birth;
and a certified copy of all other records or documents which the consular officer
considers necessary.
c. Definitions.
(5) Other records or documents include any records or documents establishing
the applicant's relationship to a spouse or children, if any, and any records
or documents pertinent to a determination of the applicant's identity,
classification, or any other matter relating to the applicant's visa eligibility.
9 FAM 42.44 Regs/Statutes Page 1 of 1




9 FAM 42.44
NOTES
(CT:VISA-1932; 10-10-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.44 N1 GENERAL INFORMATION ON
DNA TESTING
(CT:VISA-1324; 09-25-2009)
a. Deoxyribonucleic Acid (DNA) testing is the most accurate and widely available
technology to test a biological relationship. The types of tests used by the DNA
scientific community continue to evolve; currently, the Polymerase Chain
Reaction-Short Tandem Repeat (PCR-STR) and the Restriction Fragment Length
Polymorphism (RFLP) methods are the two tests that we believe to be the most
advanced, offering the best results. These tests are preferred over older
technologies such as human leukocyte antigens (HLA) and human blood alleles
(ABO) blood typing because they do not require blood samples and are more
accurate when all parties are not available for testing and/or when the other
possible father (in a paternity case) or mother (in a maternity case) is thought
to be related to the tested party.
b. DNA testing reliability has advanced to the industry-accepted standard of 99.5
percent. Consular officers may only accept test results reporting a 99.5 percent
or greater degree of certainty with respect to paternity/maternity as sufficient
to support a biological relationship between a parent and child in visa cases.
However, a test that supports paternity/maternity to a degree less than 99.5
percent generally can be followed by retests to determine if the 99.5 percent
accuracy can be achieved. If, after several attempts, it is not possible to reach
the accepted level, and you remain unconvinced of the bona fides of the
relationship in question, return the petition to the Department of Homeland
Security (DHS)/U.S. Citizenship and Immigration Services (USCIS) via the
National Visa Center along with a memo explaining the return and a copy of the
DNA test(s) results.


9 FAM 42.44 N2 DNA TESTING COLLECTION
METHOD
(CT:VISA-1324; 09-25-2009)
a. The preferred specimen collection technique for DNA testing is by buccal (cheek
or mouth cavity) swab. When buccal swabs are taken, cells are collected from


the inside cheek using a long cotton swab. Cheek swabs are preferred over
blood samples because they are easier to collect, non-invasive, painless, and
easier to ship. The accuracy of a DNA test conducted with a cheek swab is
equivalent to a test conducted using a blood test, and, unlike blood, cheek
swabs are not considered to be bio-hazardous. Inform panel physicians and lab
technicians that this is the preferred collection method for immigration cases.
b. Post must obtain advance approval from the Post Liaison Division (CA/VO/F/P)
if you are unable to use buccal swabs and must use blood draws instead.


9 FAM 42.44 N3 WHEN TO RECOMMEND GENETIC
TESTING TO VERIFY RELATIONSHIPS
(CT:VISA-1324; 09-25-2009)
a. Genetic testing is a useful tool for verifying an alleged biological relationship
when no other form of credible evidence is available in conjunction with an
immigrant visa (IV) application. Commonly tested relationships requiring DNA
testing include paternity, maternity, full-siblingship, or half-siblingship. More
distant relationships cannot be proven reliably using DNA testing. Testing to
establish relationships other than parent/child, such as sibling, may also be
recommended but only in addition to a parent/child test (see 9 FAM 42.44 N4).
b. DNA technology is the only non-documentary method accepted for proof of a
biological relationship. However, due to the expense, complexity, and logistical
delays inherent in parentage testing, genetic testing should be used only if no
other credible proof (documentation, photos, etc.) of the relationship exists.
The process is time-consuming for the applicant, the petitioner, and the
consular section, and it does not necessarily yield conclusive results. You must
exhaust all other possible methods of confirming a relationship before
recommending a DNA test; it should be a last resort rather than a first.
NOTE: you may recommend DNA testing, but may not require it.
c. When genetic testing appears warranted, advise the applicant that genetic
testing may establish the validity of the relationship; that such testing is
entirely voluntary; and that all costs of testing and related expenses must be
borne by the petitioner and/or beneficiary and paid to the laboratory in
advance. In addition, caution the applicant that submitting to testing does not
guarantee the subsequent issuance of a visa.


9 FAM 42.44 N4 WHEN NOT TO RECOMMEND
GENETIC TESTING TO VERIFY RELATIONSHIPS
(CT:VISA-1324; 09-25-2009)
a. You may recommend DNA testing to establish a blood relationship that would


qualify an applicant for an immigration benefit. You may not request DNA
testing in an attempt to disprove a relationship. For example, do not request
DNA testing between marital partners on suspicion that they are blood
relatives.
b. Do not recommend direct sibling testing without parental testing. Direct testing
between siblings may show an apparent lack of relationship even when the
individuals are full siblings because of the variations in genetic contribution by
each parent to individual children. For all sibling cases, each sibling must be
tested against the parents (vice direct sibling-to-sibling testing) of the sibling
group and return at least a 99.5 percent probability of maternity/paternity. If
the results of the sibling-to-parent tests meet the 99.5 percent standard, then
the sibling relationship is established through DNA.
c. Recommend a DNA test of step-children only to establish paternity or maternity
with the biological parent/spouse of the qualified petitioner. Do not recommend
DNA testing to test for half sibling relationships, cousins, or other such
extended relationships, as these tests cannot reach the minimum requirement
of 99.5 percent probability.


9 FAM 42.44 N5 GENETIC TESTING AS A BASIS
FOR FORM I-130, PETITION FOR ALIEN RELATIVE
(CT:VISA-1324; 09-25-2009)
a. Return to USCIS any petitions for which the biological relationship has been
disproven by DNA test results.
b. Do not approve a Form I-130, Petition for Alien Relative, which lacks
documentary evidence and relies upon genetic testing as sole proof of the
qualifying relationship. Such cases are not clearly approvable and therefore the
petitions must be forwarded to USCIS for adjudication. Explain in the
accompanying memorandum why other evidence of the alleged relationship is
unavailable or not credible, that the case is not clearly approvable, and alert
USCIS to the need for genetic testing.
c. USCIS, on the other hand, can approve a petition based solely on genetic
testing, and may request a post's assistance in ensuring that the potential
beneficiary submits to such testing under appropriate safeguards. USCIS may
also approve a Form I-130 contingent upon verification of an alleged
relationship through genetic testing.


9 FAM 42.44 N6 SELECTION OF AABB LAB
(CT:VISA-1932; 10-10-2012)
a. Any DNA testing for visa or citizenship purposes must be processed by a lab


that is accredited by the American Association of Blood Banks (AABB). Names
of AABB accredited labs can be found on the AABB Accredited Relationship
Testing Facilities Web site.
NOTE: The list of laboratories on the site is based on the physical location of
the lab's headquarters, and the operations of most labs are not restricted to
that location. Therefore, the petitioner should be able to choose from the full
list of AABB laboratories that conduct DNA testing.
b. The petitioner must select an AABB-accredited laboratory, contact the lab
directly, make the necessary arrangements for sample collection and testing,
and include payment for all tested parties.
c. Under no circumstances should petitioners use third-party vendors to select
their lab, arrange appointments, or transport the specimens outside of the lab
chain-of-custody controls. Third-party vendors include, but are not limited to,
private companies or clearinghouses that serve as intermediaries to make
appointments on behalf of petitioners, applicants or beneficiaries. A petitioner
or applicant must independently choose the AABB accredited DNA testing lab,
make the sample collection appointment directly with the lab, and, if in the
United States, go in person to the lab's designated sample collection site. If the
sample collection site is not at the lab's DNA testing facility, the collection site
must then send the sample to the main AABB lab testing site directly, through
the lab's internal, controlled system. The authority for collecting DNA
specimens in the United States resides exclusively with the AABB labs and their
directly affiliated collection sites.
d. Under no circumstances should petitioners or applicants, including those in the
United States, directly receive test kits for use in establishing a claimed
relationship in connection with a visa petition or citizenship claim. The DNA
samples for the petitioner must be collected at a designated AABB testing site,
lab, or clinic, unless the petitioner is located in a country where an AABB lab is
not located. If the petitioner is overseas and there is no AABB lab that country,
the DNA sample may be collected at post following the collection procedures
outlined in this section. The AABB laboratory selected by the petitioner will
send a test kit, including a pre-paid, pre-addressed return envelope and explicit
sampling instructions, directly to the consular section (and petitioner if
applicable).
e. Post must note and report to CA/VO/F/P any anomalies, such as petitioners
traveling unusual distances to get to a collection site when other collection sites
are available closer to them.


9 FAM 42.44 N7 STANDARDS FOR THE
COLLECTION OF THE DNA SAMPLES


(CT:VISA-1628; 03-01-2011)
a. Though advanced, DNA results are only accurate if strict standards are followed
for every sample collected. The AABB establishes standards for relationship
testing, and the Department of State follows these standards for use in the
collection of DNA samples to verify relationships for IVs, passports, and other
benefits based on biological relationships.
b. There are four essential elements that must be understood and maintained to
protect the integrity of the DNA collection and relationship testing procedures:
(1) As DNA testing is voluntary, the individual being tested must consent to
the testing;
(2) ) The identity of the individual being tested must be verified and
confirmed by a cleared American;
(3) ) The integrity of the sample must be maintained through a strict chain
of custody; and
(4) ) The actual collection of the DNA sample must be witnessed by a
cleared American.
c. Effective immediately, all DNA collections must take place at the embassy or
consulate and not at the panel physician's office or other lab facility.
Department of State medical officers may not collect biological samples for
genetic testing purposes. Furthermore, under no circumstances should
consular officers attempt to collect samples themselves. All sample collection
must be done by medical personnel employed by the panel physician.
d. Consular management must approve each lab technician prior to his or her
authorization to collect DNA samples from applicants. Each panel physician's
office must recommend several lab technicians who will then be cleared and
approved by post. The completion of a CLASS namecheck and review of
previous visa application(s) and RSO records is the minimum required clearance
to approve a lab technician for operation inside the consulate. Post should take
factors including multiple visa refusals into consideration prior to clearing the
technician for conducting DNA testing.
e. Post must choose a site in the consular section for collection of the buccal swab.
The collection must be witnessed by the consular officer or another cleared
American, and in certain circumstances, section management as well. Posts
may wish to explore privacy options, including (but not limited to) privacy
booths, interview windows with a curtain separator for privacy, or a regular
interview window. Regardless of the final collection location, both the applicant
and medical technician must be in the immediate presence of the cleared
American witness at all times.
f. Any American citizen employee of the consular section, possessing a valid
"Secret" or higher national security clearance may serve as the cleared
American witness for DNA tests. At post's discretion, locally employed staff (LE


staff) may accompany the cleared American to witness the collection.
However, a cleared American must be the official witness of DNA testing
procedures.
g. Post must observe the guidelines outlined herein in order to maintain clear
chain of custody, including a log to monitor accountability through all steps.
See 9 FAM 42.44 Exhibit I for the template for the required accountability log.
h. DNA procedures should be posted on the post's Web sites as general
information to the public, and updated annually. Any questions about what
should be included in this information should be directed to CA/VO/F/P.
i. Any additional post-specific internal controls and procedures involving DNA
testing, not included in this cable, must be approved in advance by CA/VO/F/P.


9 FAM 42.44 N8 DNA TESTING PROCEDURES
(CT:VISA-1628; 03-01-2011)
a. Petitioner/putative parent selects AABB accredited lab (see 9 FAM 42.44 N6).
b. The selected AABB lab sends the beneficiary DNA testing kit(s) directly to the
consular section.
c. The Accountable Consular Officer (ACO) checks in all test kits on the DNA
accountability log (see 9 FAM 42.44 Exhibit I for Sample Log) upon receipt in
the consular section. This consists of ensuring that the kit has not been opened
or damaged and if the kit includes a seal, confirming the kit seal is intact,
adding the kit to the accountability log stored in the ACO safe, and storing it in
the ACO safe or a bar lock cabinet. The safe where the DNA kits are stored
must be accessible only to the ACO or designated backup.
d. Once the ACO records receipt of the collection kit, the consular section must
contact the applicant to schedule an appointment date for DNA collection and
tell the applicant that he/she must bring his/her passport and a photograph.
e. On the DNA collection appointment date, a lab technician from the panel
physician's office must come to the consular section to collect the DNA
sample(s).
f. Immediately prior to the testing, the ACO checks the test kit out of the safe and
gives it to the cleared American witness who will witness the collection,
recording the cleared American witness's name in the accountability log. The
witness verifies that the kit is unopened, and if applicable, the seal is intact.
The cleared American witness is responsible for the custody of the testing
materials until he or she applies the security seal to the mailing package.
g. The cleared American witness should review the instructions sent by the AABB
lab prior to the DNA collection, so as to be familiar enough with the sample
collection technique to recognize if it is not being executed properly by the lab
technician.


h. At the time of testing, the cleared American witness must have the medical
technician and applicant/beneficiary come to the interview window or
designated location within the consular section, one applicant at a time.
i. The cleared American witness must personally verify the identity of the donor
through:
(1) Presentation of passport; and
(2) Verifying that the applicant signs on the back of his or her photograph for
attachment to the chain of custody document(s).
j. Once the identity of the applicant has been confirmed, the cleared American
witness must do the following:
(1) Collect the signed applicant photograph and supporting documents from
the applicant;
(2) Provide the sealed DNA kit to the lab technician or panel physician;
(3) ) Witness the collection of the buccal swab from the donor/applicant;
(4) Legibly record required information on chain-of-custody documents. This
function may not be performed by locally employed staff (LE staff) or an
outside party;
NOTE: Minimal chain of custody requirements include, but are not limited to:
Date and time of the sample collection
Name and signature of lab technician conducting the swabs. Name is
verified with the technician's ID badge or card
Name and signature of the cleared American witness
Other specific information required by the AABB laboratory as indicated in
the kit instructions
(5) ) Witness the lab technician placing the completed DNA sample into the
protective sleeve or pouch provided by the lab, accept the specimen from
the lab technician or panel physician, and personally seal and sign the
sample in accordance with the kit instructions;
(6) Seal the specimen in the pre-paid shipping envelope provided by the lab.
The sample must be in the direct possession of the same cleared American
who witnessed the sample collection until the return mailing envelope is
sealed in accordance with the instructions from the lab or shipping
company. See 9 FAM 42.44 N9 for further details on storing and shipping
DNA samples;
(7) ) Record in the applicant's case notes:
(a) His/her name as witness to the collection;
(b) Date and time of sample collection;
(c) The name of the lab technician (from ID badge or card);


(d) The name of the lab or panel physician where the technician is
employed; and
(e) A clear description of the relationship(s) being tested (e.g., probability
that the tested mother or father is the mother/father of the child
tested).
(8) Scan all chain-of-custody documents into the CCD and associate them with
the applicant's case. Be sure that the information provided to the AABB lab
clearly defines the relationship(s) to be tested. The request should be
specific, not "are the parties related?", but rather "is the petitioner the
mother/father of the tested applicant?"
(9) For reporting purposes, DNA cases may be marked as referrals to the
Fraud Prevention Unit (FPU) in the IVO and NIV systems. The case must
indicate that the reason for the referral is that the case is pending DNA
testing.


9 FAM 42.44 N9 STORING AND SHIPPING OF
DNA SAMPLES
(CT:VISA-1324; 09-25-2009)
a. Once the test is completed, the DNA samples must be placed into the pre-paid
shipping envelope, sealed, and shipped as soon as possible - preferably the
same day. The shipping envelope may not be shipped through the local mail
services and must be shipped by a company similar to FedEx or DHL. The
cleared American must ensure that all documentation, including supporting
forms, photos of the donors, chain-of-custody documents, etc., requested in
the test kit, accompany the specimen. Once the kit is sealed, the cleared
American is responsible for delivering or ensuring pick-up of the test kit(s) by
the mail service. He/she is responsible for the kits until they are turned over
for shipment.
b. All DNA samples must be shipped within 24-48 hours after collection is
complete. If kits cannot be shipped on the same day the sample is collected,
then the sample must be returned to the ACO for storage until it is released for
shipment. The DNA sample kit and all chain of custody materials are controlled
items and must be stored securely, at minimum in a bar-lock safe, until the kit
is shipped back to the U.S.-based lab.
c. When the test kit is shipped, a receipt for all kits must be collected from the
shipper, the shipment date and tracking number must be entered into the case
notes, and the airbill must be scanned into the appropriate case records.
d. Under no circumstances may posts use the diplomatic pouch or local mail
services to return samples to the testing laboratory.
e. Any variations from these DNA procedures must be approved by CA/VO/F/P in


advance and will be considered on a case-by-case basis.


9 FAM 42.44 N10 COMMUNICATING THE
RESULTS OF THE DNA TEST
(CT:VISA-1932; 10-10-2012)
a. In all phases of testing, communication of the results of the test must be
directly between consular officers or cleared Americans and the laboratory.
Posts have the option to receive DNA test results electronically from AABB labs.
AABB laboratories may send all test results directly to consular sections via
email or retrieve the results via secure portal, if the lab has this capability.
Consular sections must establish a dedicated e-mail address to receive DNA
results if they do not have one already. A consular officer or cleared American
must open the e-mail from the lab containing the results or log onto the secure
portal to retrieve the results. Consular managers will ensure that access to this
email account and the secure portal is safeguarded. LE staff are not authorized
to access the e-mail account or secure portal.
b. If not receiving the results electronically, posts must continue following the
procedures outlined below. The procedures for receiving DNA test results via
courier have not changed. If receiving results via courier, AABB laboratories
will send the test results to consular sections in sealed envelopes with the same
type of security tape used when samples are taken. Only a consular officer or
cleared American may open the sealed envelopes and perform step (1) below.
Follow the following steps when receiving e-mail results as well:
(1) A cleared American receives and opens the sealed DNA results letter and
enters the results of the test into the ECAS case notes, recording the
probability of relationship determined by the testing. Results must be
recorded using the following standard phrase: "DNA results indicate
xx.xx% likelihood of paternity (or maternity) with PA."
(2) After a cleared American enters the results into the ECAS case notes, the
results must be scanned into the case record. A locally employed staff (LE
staff) member may do the scanning provided that the results have already
been entered into the case notes.
(3) The applicant or petitioner bears full financial responsibility for DNA testing
and there is no legal basis for preventing him/her from also receiving a
copy of the results directly from the laboratory. Post should not give
copies of DNA test results directly to petitioners, applicants, or other
parties without express consent from the Department.


9 FAM 42.44 N11 REPORTING POSSIBLE
COMPROMISE OF DNA SAMPLE OR RESULTS


(CT:VISA-1932; 10-10-2012)
a. Under no circumstances may any other party, including those being tested, be
permitted to carry or transport biological samples or test results. If a cleared
American or any other member of the consular team observes or has any
reason to suspect that the test specimen or results have been tampered with,
or may have even momentarily or inadvertently been subject to a compromised
chain of custody, immediately notify post management, CA/VO/F/P, and
CA/FPP. In the event of an actual or suspected breach of custody, post must
suspend processing of the IV case until it has consulted with, and obtained
clearance from, CA/VO/F/P and CA/FPP.
b. Any procedural questions about this guidance should be directed to CA/VO/F/P
or to CA/FPP.


9 FAM 42.44 N12 RETENTION AND
DESTRUCTION OF UNUSED DNA KITS
(CT:VISA-1932; 10-10-2012)
a. Dispose of unused DNA kits after one year. DNA kits have a shelf-life of several
years, so disposing of unused kits after one year will prevent usage of an
expired kit. To determine the one-year time frame, use the date when the
petitioner, beneficiary, or applicant was first contacted to appear for sample
collection in the consular section. If this date is unknown, use the date of the
DNA kits arrival in the consular section, which should be recorded in the DNA
Accountability log.
b. When DNA kits reach the one-year mark, dispose of them, shred the enclosed
documentation, and record the destruction in the DNA Accountability log.
c. Discard the unused kits rather than use them for another case. Do not use the
unused kits for another case because a petitioner has already paid to have the
kit shipped to the consular section and the kit is associated with that particular
case. The petitioner must select the lab and contact the lab directly to arrange
the test. There are numerous AABB labs from which to choose and the
petitioner may select one based on his or her location or individual preference.
See 9 FAM 42.44 N6. Post must ensure that it does not give the impression
that it is endorsing a particular AABB lab. For this reason, post should discard
any unused DNA kits.




9 FAM 42.44 EXHIBIT I
SAMPLE DNA ACCOUNTABILILTY LOG
(CT:VISA-1773; 11-16-2011)
(Office of Origin: CA/VO/L/R)


Date kit
Received
Case
Number
Surname Given
Name
Kit #
and
Lab
Name
Signature
of ACO
Date kit
removed for
DNA sampling
(dd/mm/yyyy)
Name and
Initials of
Cleared
American
witness who
received
DNA kit
Signature of
ACO
Date kit
delivered
to
shipping
company






















9 FAM 42.51
DEPARTMENT CONTROL OF NUMERICAL
LIMITATIONS
(CT:VISA-1890; 09-18-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.51 RELATED STATUTORY PROVISIONS
(CT:VISA-1890; 09-18-2012)
See INA 201 (8 U.S.C. 1151), INA 202(a), INA 202(e) (8 U.S.C. 1152(a) and (e)),
INA 203(a), INA 203(b), INA 203(g) (8 U.S.C. 1153(a), (b)(6), and (g)), and INA
206 (8 U.S.C. 1156)
INA 201 Worldwide Level of Immigration
(a)In general. - Exclusive of aliens described in subsection (b), aliens born in a
foreign state or dependent area who may be issued immigrant visas or who
may otherwise acquire the status of an alien lawfully admitted to the United
States for permanent residence are limited to-
(1) family-sponsored immigrants described in section 203(a) (or who are
admitted under section 211(a) on the basis of a prior issuance of a visa to
their accompanying parent under section 203(a)) in a number not to
exceed in any fiscal year the number specified in subsection (c) for that
year, and not to exceed in any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection for all of such fiscal
year;
(2) employment-based immigrants described in section 203(b) (or who are
admitted under section 211(a) on the basis of a prior issuance of a visa to
their accompanying parent under section 203(b)), in a number not to
exceed in any fiscal year the number specified in subsection (d) for that
year, and not to exceed in any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection for all of such fiscal
year; and
(3) for fiscal years beginning with fiscal year 1995, diversity immigrants
described in section 203(c) (or who are admitted under section 211(a) on
the basis of a prior issuance of a visa to their accompanying parent under
section 203(c)) in a number not to exceed in any fiscal year the number
specified in subsection (e) for that year, and not to exceed in any of the
first 3 quarters of any fiscal year 27 percent of the worldwide level under
such subsection for all of such fiscal year.


(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens described in this
subsection, who are not subject to the worldwide levels or numerical limitations
of subsection (a), are as follows:
(1) (A) Special immigrants described in subparagraph (A) or (B) of section
101(a)(27).
(B) Aliens who are admitted under section 207 or whose status is adjusted
under section 209.
(C) Aliens whose status is adjusted to permanent residence under section
210, or 245A.
(D) Aliens whose removal is canceled under section 240A(a).
(E) Aliens provided permanent resident status under section 249.
(2) (A) (i) Immediate relatives. - For purposes of this subsection, the term
immediate relatives means the children, spouses, and parents of a citizen
of the United States, except that, in the case of parents, such citizens shall
be at least 21 years of age. In the case of an alien who was the spouse of a
citizen of the United States and was not legally separated from the citizen
at the time of the citizen's death, the alien (and each child of the alien)
shall be considered, for purposes of this subsection, to remain an
immediate relative after the date of the citizen's death but only if the
spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after
such date and only until the date the spouse remarries. For purposes of
this clause, an alien who has filed a petition under clause (iii) or (iv) of
section 204(a)(1)(A) of this Act remains an immediate relative in the event
that the United States citizen spouse or parent loses United States
citizenship on account of the abuse.
(ii) Aliens admitted under section 211(a) on the basis of a prior
issuance of a visa to their accompanying parent who is such an
immediate relative.
(B) Aliens born to an alien lawfully admitted for permanent residence
during a temporary visit abroad.
(c) Worldwide Level of Family-Sponsored Immigrants.
(1) (A) The worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is, subject to subparagraph (B), equal to
(i) 480,000, minus
(ii) the sum of the number computed under paragraph (2) and the
number computed under paragraph (4), plus
(iii) the number (if any) computed under paragraph (3).
(B) (i) For each of fiscal years 1992, 1993, and 1994, 465,000 shall be
substituted for 480,000 in subparagraph (A)(i).


(ii) In no case shall the number computed under subparagraph (A) be
less than 226,000.
(2) ) The number computed under this paragraph for a fiscal year is the sum
of the number of aliens described in subparagraphs (A) and (B) of
subsection (b)(2) who were issued immigrant visas or who otherwise
acquired the status of aliens lawfully admitted to the United States for
permanent residence in the previous fiscal year.
(3) (A) The number computed under this paragraph for fiscal year 1992 is
zero.
(B) The number computed under this paragraph for fiscal year 1993 is the
difference (if any) between the worldwide level established under
paragraph (1) for the previous fiscal year and the number of visas
issued under section 203(a) during that fiscal year.
(C) The number computed under this paragraph for a subsequent fiscal
year is the difference (if any) between the maximum number of visas
which may be issued under section 203(b) (relating to employment-
based immigrants) during the previous fiscal year and the number of
visas issued under that section during that year.
(4) The number computed under this paragraph for a fiscal year (beginning
with fiscal year 1999) is the number of aliens who were paroled into the
United States under section 212(d)(5) in the second preceding fiscal year-
(A) who did not depart from the United States (without advance parole)
within 365 days; and
(B) who (i) did not acquire the status of aliens lawfully admitted to the
United States for permanent residence in the two preceding fiscal
years, or (ii) acquired such status in such years under a provision of
law (other than section 201(b)) which exempts such adjustment from
the numerical limitation on the worldwide level of immigration under
this section.
(5) If any alien described in paragraph (4) (other than an alien described in
paragraph (4)(B)(ii)) is subsequently admitted as an alien lawfully
admitted for permanent residence, such alien shall not again be considered
for purposes of paragraph (1).
(d) Worldwide level of employment-based immigrants.
(1) The worldwide level of employment-based immigrants under this subsection
for a fiscal year is equal to-
(A) 140,000 plus
(B) the number computed under paragraph (2).
(2) (A) The number computed under this paragraph for fiscal year 1992 is
zero.


(B) The number computed under this paragraph for fiscal year 1993 is the
difference (if any) between the worldwide level established under
paragraph (1) for the previous fiscal year and the number of visas
issued under section 203(b) during that fiscal year.
(C) The number computed under this paragraph for a subsequent fiscal
year is the difference (if any) between the maximum number of visas
which may be issued under section 203(a) (relating to family-
sponsored immigrants) during the previous fiscal year and the number
of visas issued under that section during that year.
(e) Worldwide level of diversity immigrants.- The worldwide level of diversity
immigrants is equal to 55,000 for each fiscal year.
(f) Rules for determining whether certain aliens are immediate relatives.
(1) Age on petition filing date. - Except as provided in paragraphs (2) and (3),
for purposes of subsection (b)(2)(A)(i), a determination of whether an alien
satisfies the age requirement in the matter preceding subparagraph (A) of
section 101(b)(1) shall be made using the age of the alien on the date on
which the petition is filed with the Attorney General under section 204 to
classify the alien as an immediate relative under subsection (b)(2)(A)(i).
(2) Age on parents naturalization date. - In the case of a petition under
section 204 initially filed for an alien child's classification as a family-
sponsored immigrant under section 203(a)(2)(A), based on the child's
parent being lawfully admitted for permanent residence, if the petition is
later converted, due to the naturalization of the parent, to a petition to
classify the alien as an immediate relative under subsection (b)(2)(A)(i),
the determination described in paragraph (1) shall be made using the age
of the alien on the date of the parent's naturalization.
(3) Age on marriage termination date. - In the case of a petition under section
204 initially filed for an alien's classification as a family-sponsored
immigrant under section 203(a)(3), based on the alien's being a married
son or daughter of a citizen, if the petition is later converted, due to the
legal termination of the alien's marriage, to a petition to classify the alien
as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried
son or daughter of a citizen under section 203(a)(1), the determination
described in paragraph (1) shall be made using the age of the alien on the
date of the termination of the marriage.
(4) Application to self-petitions. - Paragraphs (1) through (3) shall apply to
self-petitioners and derivatives of self-petitioners.
INA 202 Numerical Limitations on Individual Foreign States
(a) Per Country Level.
(1) Nondiscrimination.
(A) Except as specifically provided in paragraph (2) and in sections


101(a)(27) , 201(b)(2)(A)(i) , and 203, no person shall receive any
preference or priority or be discriminated against in the issuance of an
immigrant visa because of the person's race, sex, nationality, place of
birth, or place of residence.
(B) Nothing in this paragraph shall be construed to limit the authority of
the Secretary of State to determine the procedures for the processing
of immigrant visa applications or the locations where such applications
will be processed.
(2) Per country levels for family-sponsored and employment-based immigrants.
- Subject to paragraphs (3), (4), and (5) the total number of immigrant
visas made available to natives of any single foreign state or dependent
area under subsections (a) and (b) of section 203 in any fiscal year may
not exceed 7 percent (in the case of a single foreign state) or 2 percent (in
the case of a dependent area) of the total number of such visas made
available under such subsections in that fiscal year.
(3) Exception if additional visas available. - If because of the application of
paragraph (2) with respect to one or more foreign states or dependent
areas, the total number of visas available under both subsections (a) and
(b) of section 203 for a calendar quarter exceeds the number of qualified
immigrants who otherwise may be issued such a visa, paragraph (2) shall
not apply to visas made available to such states or areas during the
remainder of such calendar quarter.
(4) Special rules for spouses and children of lawful permanent resident aliens.
(A) 75 percent of 2nd preference set-aside for spouses and children not
subject to per country limitation.
(i) In general. - Of the visa numbers made available under
section 203(a) to immigrants described in section 203(a)(2)(A)
in any fiscal year, 75 percent of the 2-A floor (as defined in
clause (ii)) shall be issued without regard to the numerical
limitation under paragraph (2).
(ii) 2-A floor defined. - In this paragraph, the term "2-A floor"
means, for a fiscal year, 77 percent of the total number of visas
made available under section 203(a) to immigrants described in
section 203(a)(2) in the fiscal year.
(B) Treatment of remaining 25 percent for countries subject to subsection
(e).-
(i) In general. - Of the visa numbers made available under
section 203(a) to immigrants described in section 203(a)(2)(A)
in any fiscal year, the remaining 25 percent of the 2-A floor shall
be available in the case of a state or area that is subject to
subsection (e) only to the extent that the total number of visas
issued in accordance with subparagraph (A) to natives of the


foreign state or area is less than the subsection (e) ceiling (as
defined in clause (ii)).
(ii) Subsection (e) ceiling defined. - In clause (i), the term
"subsection (e) ceiling" means, for a foreign state or dependent
area, 77 percent of the maximum number of visas that may be
made available under section 203(a) to immigrants who are
natives of the state or area under section 203(a)(2) consistent
with subsection (e).
(C) Treatment of unmarried sons and daughters in countries subject to
subsection (e). - In the case of a foreign state or dependent area to
which subsection (e) applies, the number of immigrant visas that may
be made available to natives of the state or area under section
203(a)(2)(B) may not exceed
(i) 23 percent of the maximum number of visas that may be
made available under section 203(a) to immigrants of the state
or area described in section 203(a)(2) consistent with subsection
(e), or
(ii) the number (if any) by which the maximum number of visas
that may be made available under section 203(a) to immigrants
of the state or area described in section 203(a)(2) consistent
with subsection (e) exceeds the number of visas issued under
section 203(a)(2)(A) , whichever is greater.
(D) Limiting pass down for certain countries subject to subsection (e). - In
the case of a foreign state or dependent area to which subsection (e)
applies, if the total number of visas issued under section 203(a)(2)
exceeds the maximum number of visas that may be made available to
immigrants of the state or area under section 203(a)(2) consistent
with subsection (e) (determined without regard to this paragraph), in
applying paragraphs (3) and (4) of section 203(a) under subsection
(e)(2) all visas shall be deemed to have been required for the classes
specified in paragraphs (1) and (2) of such section.
(5) Rules for employment-based immigrants.
(A) Employment-based immigrants not subject to per country limitation if
additional visas available. - If the total number of visas available under
paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar
quarter exceeds the number of qualified immigrants who may
otherwise be issued such visas, the visas made available under that
paragraph shall be issued without regard to the numerical limitation
under paragraph (2) of this subsection during the remainder of the
calendar quarter.
(B) Limiting fall across for certain countries subject to subsection (e). - In
the case of a foreign state or dependent area to which subsection (e)


applies, if the total number of visas issued under section 203(b)
exceeds the maximum number of visas that may be made available to
immigrants of the state or area under section 203(b)consistent with
subsection (e) (determined without regard to this paragraph),in
applying subsection (e) all visas shall be deemed to have been
required for the classes of aliens specified in section 203(b).
INA 202(e) Special Rules for Countries at Ceiling. - If it is determined that
the total number of immigrant visas made available under subsections (a) and (b)
of section 203 to natives of any single foreign state or dependent area will exceed
the numerical limitation specified in subsection (a)(2) in any fiscal year, in
determining the allotment of immigrant visa numbers to natives under subsections
(a) and (b) of section 203, visa numbers with respect to natives of that state or
area shall be allocated (to the extent practicable and otherwise consistent with this
section and section 203) in a manner so that
(1) the ratio of the visa numbers made available under section 203(a) to the
visa numbers made available under section 203(b) is equal to the ratio of
the worldwide level of immigration under section 201(c) to such level under
section 201 (d);
(2) except as provided in subsection (a)(4), the proportion of the visa numbers
made available under each of paragraphs (1) through (4) of section 203(a)
is equal to the ratio of the total number of visas made available under the
respective paragraph to the total number of visas made available under
section 203(a), and
(3) except as provided in subsection (a)(5), the proportion of the visa numbers
made available under each of paragraphs (1) through (5) of section 203(b)
is equal to the ratio of the total number of visas made available under the
respective paragraph to the total number of visas made available under
section 203(b).
Nothing in this subsection shall be construed as limiting the number of visas that
may be issued to natives of a foreign state or dependent area under section
203(a) or 203(b) if there is insufficient demand for visas for such natives under
section 203(b) or 203(a), respectively, or as limiting the number of visas that may
be issued under section 203(a)(2)(A) pursuant to subsection (a)(4)(A).
INA 203 Allocation of Immigrant Visas
(a)Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to the
worldwide level specified in section 201(c) for family-sponsored immigrants
shall be allotted visas as follows:
(1) Unmarried sons and daughters of citizens. - Qualified immigrants who are
the unmarried sons or daughters of citizens of the United States shall be
allocated visas in a number not to exceed 23,400, plus any visas not
required for the class specified in paragraph (4).
(2) Spouses and unmarried sons and unmarried daughters of permanent


resident aliens. - Qualified immigrants
(A) who are the spouses or children of an alien lawfully admitted for
permanent residence, or
(B) who are the unmarried sons or unmarried daughters (but are not the
children) of an alien lawfully admitted for permanent residence, shall
be allocated visas in a number not to exceed 114,200, plus the
number (if any) by which such worldwide level exceeds 226,000, plus
any visas not required for the class specified in paragraph (1); except
that not less than 77 percent of such visa numbers shall be allocated
to aliens described in subparagraph (A).
(3) Married sons and married daughters of citizens. - Qualified immigrants who
are the married sons or married daughters of citizens of the United States
shall be allocated visas in a number not to exceed 23,400, plus any visas
not required for the classes specified in paragraphs (1) and (2).
(4) Brothers and sisters of citizens. - Qualified immigrants who are the
brothers or sisters of citizens of the United States, if such citizens are at
least 21 years of age, shall be allocated visas in a number not to exceed
65,000, plus any visas not required for the classes specified in paragraphs
(1) through (3).
(b)Preference Allocation for Employment-Based Immigrants. - Aliens subject to the
worldwide level specified in section 201(d) for employment-based immigrants in
a fiscal year shall be allotted visas as follows:
(1) Priority workers. - Visas shall first be made available in a number not to
exceed 28.6 percent of such worldwide level, plus any visas not required
for the classes specified in paragraphs (4) and (5), to qualified immigrants
who are aliens described in any of the following subparagraphs (A) through
(C):
(A) Aliens with extraordinary ability. - An alien is described in this
subparagraph if
(i) the alien has extraordinary ability in the sciences, arts, education,
business, or athletics which has been demonstrated by sustained
national or international acclaim and whose achievements have been
recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the
area of extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit
prospectively the United States.
(B) Outstanding professors and researchers. -An alien is described in this
subparagraph if
(i) the alien is recognized internationally as outstanding in a specific


academic area,
(ii) the alien has at least 3 years of experience in teaching or research
in the academic area, and
(iii) the alien seeks to enter the United States-
(I) for a tenured position (or tenure-track position) within a
university or institution of higher education to teach in the
academic area,
(II) for a comparable position with a university or institution of
higher education to conduct research in the area, or
(III) for a comparable position to conduct research in the area
with a department, division, or institute of a private employer, if
the department, division, or institute employs at least 3 persons
full-time in research activities and has achieved documented
accomplishments in an academic field.
(C) Certain multinational executives and managers. - An alien is described
in this subparagraph if the alien, in the 3 years preceding the time of
the alien's application for classification and admission into the United
States under this subparagraph, has been employed for at least 1 year
by a firm or corporation or other legal entity or an affiliate or
subsidiary thereof and the alien seeks to enter the United States in
order to continue to render services to the same employer or to a
subsidiary or affiliate thereof in a capacity that is managerial or
executive.
(2) Aliens who are members of the professions holding advanced degrees or
aliens of exceptional ability.
(A) In general. - Visas shall be made available, in a number not to exceed
28.6 percent of such worldwide level, plus any visas not required for
the classes specified in paragraph (1), to qualified immigrants who are
members of the professions holding advanced degrees or their
equivalent or who because of their exceptional ability in the sciences,
arts, or business, will substantially benefit prospectively the national
economy, cultural or educational interests, or welfare of the United
States, and whose services in the sciences, arts, professions, or
business are sought by an employer in the United States.
(B) Waiver of job offer.
(i) Subject to clause (ii), the Attorney General may, when the Attorney
General deems it to be in the national interest, waive the requirements
of subparagraph (A) that an alien's services in the sciences, arts,
professions, or business be sought by an employer in the United
States.
(ii) (I) The Attorney General shall grant a national interest waiver


pursuant to clause (i) on behalf of any alien physician with
respect to whom a petition for preference classification has been
filed under subparagraph (A) if
(aa) the alien physician agrees to work full time as a
physician in an area or areas designated by the Secretary of
Health and Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of
the Secretary of Veterans Affairs; and
(bb) a Federal agency or a department of public health in
any State has previously determined that the alien physician's
work in such an area or at such facility was in the public interest.
(II) No permanent resident visa may be issued to an alien physician
described in subclause (I) by the Secretary of State under
section 204(b), and the Attorney General may not adjust the
status of such an alien physician from that of a nonimmigrant
alien to that of a permanent resident alien under section 245,
until such time as the alien has worked full time as a physician
for an aggregate of 5 years (not including the time served in the
status of an alien described in section 101(a)(15)(J)), in an area
or areas designated by the Secretary of Health and Human
Services as having a shortage of health care professionals or at a
health care facility under the jurisdiction of the Secretary of
Veterans Affairs.
(III) Nothing in this subparagraph may be construed to prevent the
filing of a petition with the Attorney General for classification
under section 204(a), or the filing of an application for
adjustment of status under section 245, by an alien physician
described in subclause (I) prior to the date by which such alien
physician has completed the service described in subclause (II).
(IV) The requirements of this subsection do not affect waivers on
behalf of alien physicians approved under section 203(b)(2)(B)
before the enactment date of this subsection. In the case of a
physician for whom an application for a waiver was filed under
section 203(b)(2)(B) prior to November 1, 1998, the Attorney
General shall grant a national interest waiver pursuant to section
203(b)(2)(B) except that the alien is required to have worked
full time as a physician for an aggregate of 3 years (not including
time served in the status of an alien described in section
101(a)(15)(J)) before a visa can be issued to the alien under
section 204(b) or the status of the alien is adjusted to
permanent resident under section 245.
(C) Determination of exceptional ability. - In determining under
subparagraph (A) whether an immigrant has exceptional ability, the


possession of a degree, diploma, certificate, or similar award from a
college, university, school, or other institution of learning or a license
to practice or certification for a particular profession or occupation
shall not by itself be considered sufficient evidence of such exceptional
ability.
(3) Skilled workers, professionals, and other workers.-
(A) In general. - Visas shall be made available, in a number not to exceed
28.6 percent of such worldwide level, plus any visas not required for
the classes specified in paragraphs (1) and (2), to the following classes
of aliens who are not described in paragraph (2):
(i) Skilled workers. - Qualified immigrants who are capable, at
the time of petitioning for classification under this paragraph, of
performing skilled labor (requiring at least 2 years training or
experience), not of a temporary or seasonal nature, for which
qualified workers are not available in the United States.
(ii) Professionals. - Qualified immigrants who hold baccalaureate
degrees and who are members of the professions.
(iii) Other workers. - Other qualified immigrants who are
capable, at the time of petitioning for classification under this
paragraph, of performing unskilled labor, not of a temporary or
seasonal nature, for which qualified workers are not available in
the United States.
(B) Limitation on other workers. - Not more than 10,000 of the visas made
available under this paragraph in any fiscal year may be available for
qualified immigrants described in subparagraph (A)(iii).
(C) Labor certification required. - An immigrant visa may not be issued to
an immigrant under subparagraph (A) until the consular officer is in
receipt of a determination made by the Secretary of Labor pursuant to
the provisions of section 212(a)(5)(A).
(4) Certain special immigrants. - Visas shall be made available, in a number
not to exceed 7.1 percent of such worldwide level, to qualified special
immigrants described in section 101(a)(27) (other than those described in
subparagraph (A) or (B) thereof), of which not more than 5,000 may be
made available in any fiscal year to special immigrants described in
subclause (II) or (III) of section 101(a)(27)(C)(ii), and not more than 100
may be made available in any fiscal year to special immigrants, excluding
spouses and children, who are described in section 101(a)(27)(M).
(5) Employment creation.
(A) In general. - Visas shall be made available, in a number not to exceed
7.1 percent of such worldwide level, to qualified immigrants seeking to
enter the United States for the purpose of engaging in a new


commercial enterprise (including a limited partnership)
(i) in which such alien has invested (after the date of the enactment
of the Immigration Act of 1990) or, is actively in the process of
investing, capital in an amount not less than the amount
specified in subparagraph (C), and
(ii) which will benefit the United States economy and create full-time
employment for not fewer than 10 United States citizens or
aliens lawfully admitted for permanent residence or other
immigrants lawfully authorized to be employed in the United
States (other than the immigrant and the immigrant's spouse,
sons, or daughters).
(B) Set-aside for targeted employment areas. -
(i) In general. - Not less than 3,000 of the visas made available
under this paragraph in each fiscal year shall be reserved for
qualified immigrants who invest in a new commercial enterprise
described in subparagraph (A) which will create employment in a
targeted employment area.
(ii) Targeted employment area defined. - In this paragraph, the
term targeted employment area means, at the time of the
investment, a rural area or an area which has experienced high
unemployment (of at least 150 percent of the national average
rate).
(iii) Rural area defined. - In this paragraph, the term rural area
means any area other than an area within a metropolitan
statistical area or within the outer boundary of any city or town
having a population of 20,000 or more (based on the most
recent decennial census of the United States).
(C) Amount of capital required.
(i) In general. - Except as otherwise provided in this subparagraph,
the amount of capital required under subparagraph (A) shall be
$1,000,000. The Attorney General, in consultation with the
Secretary of Labor and the Secretary of State, may from time to
time prescribe regulations increasing the dollar amount specified
under the previous sentence.
(ii) Adjustment for targeted employment areas.- The Attorney
General may, in the case of investment made in a targeted
employment area, specify an amount of capital required under
subparagraph (A) that is less than (but not less than 1/2 of) the
amount specified in clause (i).
(iii) Adjustment for high employment areas.-In the case of an
investment made in a part of a metropolitan statistical area that


at the time of the investment
(I) is not a targeted employment area, and
(II) is an area with an unemployment rate significantly below the
national average unemployment rate, the Attorney General may
specify an amount of capital required under subparagraph (A)
that is greater than (but not greater than 3 times) the amount
specified in clause (i).
(D) Full-time employment defined. - In this paragraph, the term `full-time
employment' means employment in a position that requires at least 35
hours of service per week at any time, regardless of who fills the
position.
(6) Special rules for "K" special immigrants.
(A) Not counted against numerical limitation in year involved. - Subject to
subparagraph (B), the number of immigrant visas made available to
special immigrants under section 101(a)(27)(K) in a fiscal year shall
not be subject to the numerical limitations of this subsection or of
section 202(a).
(B) Counted against numerical limitations in following year.
(i) Reduction in employment-based immigrant classifications. - The
number of visas made available in any fiscal year under
paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the
number of visas made available in the previous fiscal year to
special immigrants described in section 101(a)(27)(K).
(ii) Reduction in per country level. - The number of visas made
available in each fiscal year to natives of a foreign state under
section 202(a) shall be reduced by the number of visas made
available in the previous fiscal year to special immigrants
described in section 101(a)(27)(K) who are natives of the
foreign state.
(iii) Reduction in employment-based immigrant classifications within
per country ceiling. - In the case of a foreign state subject to
section 202(e) in a fiscal year (and in the previous fiscal year),
the number of visas made available and allocated to each of
paragraphs (1) through (3) of this subsection in the fiscal year
shall be reduced by 1/3 of the number of visas made available in
the previous fiscal year to special immigrants described in
section 101(a)(27)(K) who are natives of the foreign state.
****
(g) Lists. For purposes of carrying out the Secretarys responsibilities in the
orderly administration of this section, the Secretary of State may make
reasonable estimates of the anticipated numbers of visas to be issued during


any quarter of any fiscal year within each of the categories under subsections
(a), (b), and (c) of this section and to rely upon such estimates in authorizing
the issuance of visas. The Secretary of State shall terminate the registration of
any alien who fails to apply for an immigrant visa within one year following
notification to the alien of the availability of such visa, but the Secretary shall
reinstate the registration of any such alien who establishes within 2 years
following the date of notification of the availability of such visa that such failure
to apply was due to circumstances beyond the aliens control.
INA 206 Unused Immigrant Visas
If an immigrant having an immigrant visa is denied admission to the United States
and removed, or does not apply for admission before the expiration of the validity
of his visa, or if an alien having an immigrant visa issued to him as a preference
immigrant is found not to be a preference immigrant, an immigrant visa or a
preference immigrant visa, as the case may be, may be issued in lieu thereof to
another qualified alien.


9 FAM 42.51 RELATED REGULATORY PROVISIONS
(CT:VISA-1534; 09-23-2010)
22 CFR 42.51 Department control of numerical limitations
(a)Centralized control. Centralized control of the numerical limitations on
immigration specified in INA 201, 202, and 203 is established in the
Department. The Department shall limit the number of immigrant visas that
may be issued and the number of adjustments of status that may be granted to
aliens subject to these numerical limitations to a number:
(1) Not to exceed 27 percent of the world-wide total made available under INA
203 (a), (b) and (c) in any of the first three quarters of any fiscal year; and
(2) Not to exceed, in any month of a fiscal year, 10% of the world-wide total
made available under INA 203 (a), (b) and (c) plus any balance remaining
from authorizations for preceding months in the same fiscal year.
(b) Allocation of numbers. Within the foregoing limitations, the Department shall
allocate immigrant visa numbers for use in connection with the issuance of
immigrant visas and adjustments based on the chronological order of the
priority dates of visa applicants classified under INA 203 (a) and (b) reported
by consular officers pursuant to section 42.55(b) and of applicants for
adjustment of status as reported by officers of the DHS, taking into account the
requirements of INA 202(e) in such allocations. In the case of applicants under
INA 203(c), visa numbers shall be allocated within the limitation for each
specified geographical region in the random order determined in accordance
with sec. 42.33(c) of this part.
(c) Recaptured visa numbers. An immigrant visa number shall be returned to the
Department for reallocation within the fiscal year in which the visa was issued


when:
(1) An immigrant having an immigrant visa is excluded from the United States
and deported;
(2) An immigrant does not apply for admission to the United States before the
expiration of the validity of the visa;
(3) An alien having a preference immigrant visa is found not to be a preference
immigrant; or
(4) An immigrant visa is revoked pursuant to section 42.82.
[56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 63 FR
48578, Sept. 11, 1998]


U.S. Department of State Foreign Affairs Manual Volume 9 - Visas




9 FAM 42.51
NOTES
(CT:VISA-1535; 09-23-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.51 N1 MONTHLY ALLOTMENT OF
IMMIGRANT VISA NUMBERS
(CT:VISA-1535; 09-23-2010)

The Department allocates immigrant visa numbers monthly through the
Immigrant Visa Allocation Management System on the basis of Reports 20,
Monthly Report of Documentarily Qualified Applicants. (See 9 FAM 42.51 PN1
and 9 FAM Appendix I.)






































9 FAM 42.51
PROCEDURAL NOTES
(CT:VISA-2045; 10-16-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.51 PN1 MONTHLY REQUEST FOR
IMMIGRANT VISA (IV) NUMBERS
(CT:VISA-1531; 09-23-2010)
a. The Department allocates visa numbers on the basis of monthly reports of
documentarily qualified visa applicants submitted by the posts, the National
Visa Center (NVC), and the Kentucky Consular Center (KCC). Issuing offices
abroad must prepare and submit Report 20, Monthly Report of Documentarily
Qualified Immigrant Visa Demand, so that it reaches the Immigrant Visa
Control and Reporting Division (CA/VO/F/I) by the first of the month. Posts
authorized to issue immigrant visas (IV) but having no reportable applicants in
a given month need not submit Report 20.
b. The monthly allotment of IV numbers is close to the maximum permissible.
Therefore, only a few IV numbers remain for allocation in response to individual
requests from posts. For this reason, posts should not request allocation of IV
numbers for applicants who become documentarily qualified after the
submission of the report unless special circumstances exist in an individual case
necessitating immediate issuance of a visa. A post with unused numbers in a
particular category/chargeability which would otherwise be returned to
CA/VO/F/I at the end of the month should use such numbers before requesting
additional allocations in the same category/chargeability. During the last
month of a fiscal year, there are generally fewer IV numbers available for
individual allocation than in any other month, and only requests for the most
compelling cases can be honored during that time.


9 FAM 42.51 PN2 RETURNING UNUSED VISA
NUMBERS
(CT:VISA-2045; 10-16-2013)
Posts shall return unused visa numbers allocated for a specific month to the
Department (CA/VO/F/I) by Report 22, Monthly Returns. Report 22, Monthly
Returns must be sent within five calendar days after the end of each month. (See
9 FAM Appendix I.)


9 FAM 42.51 PN3 RECAPTURED VISAS
(CT:VISA-1004; 09-04-2008)
A recaptured visa is a visa that is known to have not been used (e.g., the bearer
died or was unable to travel during the validity period). Such visas should be
recaptured and the visa number returned to the Department unless the same
applicant wants to replace his or her visa during the same fiscal year. (See 9 FAM
42.74 Notes.)

9 FAM 42.51 PN3.1 Importance of Prompt Return
(CT:VISA-1531; 09-23-2010)
Posts must return recaptured numbers to the Department (CA/VO/F/I) as soon as
they have been recaptured. A visa number returned during the fiscal year of
original issuance may be reallocated by the Department during the same fiscal
year. It is essential that visa numbers recaptured near the end of a fiscal year be
returned as promptly as possible so that they may be used elsewhere before the
end of the fiscal year.

9 FAM 42.51 PN3.2 Using VISAS GIRAFFE Format to
Return Recaptured Numbers
(CT:VISA-1733; 10-06-2011)
Posts must return recaptured visa numbers by telegram or e-mail using the code
word GIRAFFE followed by the words Recaptured Visa Numbers. This is
designed to preclude any possible confusion of these returns with returns of other
unused visa numbers. The issuance date (month and year) of the allotted number
being returned should also be indicated. (See 9 FAM Appendix E, 303 for VISAS
GIRAFFE format.) Posts should make a notation of the recapture and return in
their records.

9 FAM 42.51 PN3.3 Recaptured Immediate Relative
Visa
(CT:VISA-1004; 09-04-2008)
Immediate relative visas are not subject to numerical limit, and therefore no visa
numbers are allocated or used for immediate relative visa issuances. Under the
terms of the Immigration and Nationality Act (INA) as revised by the Immigration
Act of 1990, however, each years total of immediate relatives must be considered
when the Department calculates the family preference numerical limit for the
following year. Thus, it is important for the Department to know when immediate
relative visas are unused by the recipients so that such visas will not be counted in
determining the family preference limit. Posts are asked to report such


recaptured immediate relative visas to CA/VO/F/I in the same manner as
recaptured visa numbers; they should be identified as Recaptured Immediate
Relative Visa(s), and the month and year of visa issuance should be indicated.




9 FAM 42.52
POST RECORDS OF VISA APPLICATIONS
(CT:VISA-2034; 10-03-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.52 RELATED STATUTORY PROVISIONS
(CT:VISA-1548; 09-27-2010)
See INA 203(e)(3) (8 U.S.C. 1153(e)(3))
INA 203(e) Allocation of Immigrant Visas
(e) Order of consideration.
(3) Waiting lists of applicants for visas under this section shall be maintained in
accordance with regulations prescribed by the Secretary of State.


9 FAM 42.52 RELATED REGULATORY
PROVISIONS
(CT:VISA-2034; 10-03-2013)
See 22 CFR 42.52 (Post records of visa applications).
a. Waiting list. Records of individual visa applicants entitled to an immigrant
classification and their priority dates shall be maintained at posts at which
immigrant visas are issued. These records shall indicate the chronological and
preferential order in which consideration may be given to immigrant visa
applications within the several immigrant classifications subject to the
numerical limitations specified in INA 201, 202, and 203. Similar records shall
be kept for the classes specified in INA 201(b)(2) and 101(a)(27) (A) and (B)
which are not subject to numerical limitations. The records which pertain to
applicants subject to numerical limitations constitute waiting lists within the
meaning of INA 203(e)(3) as redesignated by the Immigration Act of 1990.
b. Entitlement to immigrant classification. An alien shall be entitled to immigrant
classification if the alien:
(1) Is the beneficiary of an approved petition according immediate relative or
preference status;
(2) Has satisfied the consular officer that the alien is entitled to special
immigrant status under INA(101)(a)(27) (A) or (B);
(3) Is entitled to status as a Vietnam Amerasian under section 584(b)(1) of


section 101(e) of Public Law 100202 as amended by Public Law 101167
and re-amended by Public Law 101513; or
(4) Beginning in FY95, is entitled to status as a diversity immigrant under INA
203(c).
c. Record made when entitlement to immigrant classification is established.
(1) A record that an alien is entitled to an immigrant visa classification shall be
made whenever the consular officer is satisfiedor receives evidencethat
the alien is within the criteria set forth in paragraph (b) of this section.
(2) A separate record shall be made of family members entitled to derivative
immigrant status whenever the consular officer determines that a spouse
or child is chargeable to a different foreign state or other numerical
limitation than the principal alien. The provisions of INA 202(b) are to be
applied as appropriate when either the spouse or parent is reached on the
waiting list.
(3) A separate record shall be made of a spouse or child entitled to derivative
immigrant status whenever the consular officer determines that the
principal alien intends to precede the family.




9 FAM 42.52
NOTES
(CT:VISA-1859; 08-15-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.52 N1 POST RECORDS OF IMMIGRANT
VISA APPLICATIONS
(CT:VISA-1559; 09-30-2010)
All immigrant visa processing posts now utilize the modernized immigrant visa
system. The Form OF-224, Immigrant Visa Control Card (Background
Investigation), and Form OF-224-B, Immigrant Visa Control Card, are no longer
authorized and should not be used. The Immigration Visa Automated Control
System (IVACS) has also been replaced. Consular officers and staff must comply
with all record keeping requirements of the automated system, detailed in User
Reference Manuals.


9 FAM 42.52 N2 INITIAL CASE CREATION
(CT:VISA-1365; 10-28-2009)
Post should create a visa case as soon as practical after receipt of a petition filed
at post. When case data are received electronically from National Visa Center
(NVC), Kentucky Consular Center (KCC) or another post, the data should be
loaded into posts automated system as soon as possible after receipt. Accurate
data entry is vitally important for processing purposes, particularly name check
and clearance procedures.


9 FAM 42.52 N3 SUBSEQUENT CASE ACTIONS

9 FAM 42.52 N3.1 Immigrant Visa System Contains
Record of All Processing Steps
(CT:VISA-694; 02-09-2005)
All actions taken in processing the case must be entered into the automated
immigrant visa processing system, preferably at the time the action occurs.

9 FAM 42.52 N3.2 Alien Entitled to More Than One


Classification
(CT:VISA-694; 02-09-2005)
If an applicant becomes entitled to more than one immigrant classification, a
separate case should be created in the automated system for each classification.
The two cases should be physically filed in the same folder.

9 FAM 42.52 N3.3 When a Qualifying Date Is Reached
(CT:VISA-1365; 10-28-2009)
When an alien's priority date is earlier than the qualifying date established by the
Department (see 9 FAM 42.55 PN1.1), and if it is not necessary to have a labor
certification revalidated, the automated system will generate a cover letter to be
mailed to the applicant or his or her agent with the appropriate information sheets
and forms for further processing. The date of this action is automatically entered
into the automated system and it is important that posts actually mail the
information package as soon as possible after printing. If the applicant is
classifiable in more than one category, only the record for each classification in
which the applicant's priority date is earlier than the qualifying date can be
annotated in the automated system. Consular managers should ensure that the
comments feature in any other cases is updated to reflect actions taken.

9 FAM 42.52 N3.4 When an Alien Has Required
Documents
(CT:VISA-1859; 08-15-2012)
When an applicant notifies the post that the applicant is prepared to present the
required documents, post must enter the date into the automated system to
indicate that the applicant is documentarily qualified (see 9 FAM 42.55 PN1.2 for
discussion of the concept of "documentarily qualified").

9 FAM 42.52 N3.5 Reporting Priority Date to
Department
(CT:VISA-1859; 08-15-2012)
Post must include the priority dates of all applicants who have become
documentarily qualified since the previous report in the post's monthly report of
documentarily qualified demand. (See 9 FAM 42.55 N1.1.) This is automatically
done when post generates Report 20, Monthly Report of Documentarily Qualified
Immigrant Visa Demand, in the automated immigrant visa processing system.


9 FAM 42.52 N3.6 When Visa Numbers Are Received
(CT:VISA-1559; 09-30-2010)
The National Visa Center (NVC) provides the IV (non-DV) scheduling functions for
the majority of posts worldwide. Appointments are generally scheduled in the
chronological order of the documentarily qualified applicants. Posts provide NVC
with their appointment capacity and the percentage of cases/applicants post
desires for Immediate Relative and Preference categories. Other considerations,
such as possible mailing delays or travel time by applicants to post, may be taken
into consideration in scheduling appointments. Once the scheduling is completed
by NVC, post will receive visa numbers for the numerically controlled immigrant
visa applicants from CA/VO/F/I. The case files and electronic data will be received
from NVC. When visa numbers and the electronic data files are received, posts
should ensure that these items are properly recorded in the automated immigrant
visa processing system (IVO). NVC will send all Appointment Letters for cases
scheduled through NVC. Post will use IVO to send any appointment letters
scheduled at post.

9 FAM 42.52 N3.7 Appointment for Alien Not Subject to
Numerical Limitations
(CT:VISA-1559; 09-30-2010)
a. As referenced in 9 FAM 42.52 N3.6, NVC provides the IV (non-DV) scheduling
functions for the majority of posts worldwide. Appointments are generally
scheduled in the chronological order of the documentarily qualified applicants.
Posts provide NVC with their appointment capacity and the percentage of
cases/applicants post desires for Immediate Relative and Preference categories.
Other considerations, such as possible mailing delays or travel time by
applicants to post, may be taken into consideration in scheduling appointments.
When an appointment date is scheduled (either by NVC or post) for an alien not
subject to numerical limitations, the post should enter the appointment date
into the automated immigrant visa processing system (IVO). For appointments
scheduled through NVC, the case files and electronic data will be received from
NVC.
b. NVC will send all Appointment Letters for cases scheduled through NVC. Post
will use IVO to send any appointment letters scheduled at post.


9 FAM 42.52 N4 INACTIVE CASES
(CT:VISA-1559; 09-30-2010)
Consular managers should periodically use the various reporting features available
in the automated immigrant visa processing system to monitor the status of


pending immigrant visa (IV) cases, including those considered inactive and
undergoing termination processing, and long-pending INA 221(g) refusal cases.


9 FAM 42.52 N5 TERMINATING REGISTRATION
(CT:VISA-1559; 09-30-2010)
Cases should be terminated if the applicant has not applied or responded to follow-
up mailings by post or the National Visa Center (NVC) within one year, or fails to
present evidence purporting to overcome the basis of an INA 221(g) refusal within
one year. Consular officers should refer to 9 FAM 42.83 Notes and Procedural
Notes regarding termination of registration.


9 FAM 42.52 N6 TRANSFERRING CASE TO
ANOTHER POST
(CT:VISA-1859; 08-15-2012)
When a case is transferred to another post, posts must follow procedures for case
transfer provided in the automated immigrant visa processing system. In no case
may an IV case be physically transferred without following proper electronic
transfer procedures.


9 FAM 42.52 N7 RECORD DISPOSITION AT POST
(CT:VISA-1559; 09-30-2010)
The large size of many immigrant visa (IV) records makes it particularly important
that posts adhere strictly to records disposition guidelines for these cases. Posts
retain no paper record of immigrant visas (IV) issued. All records for issued cases
are retained in the automated system. Documents retained in pending, inactive,
and refused cases should be pared to the minimum necessary under regulation,
and case files should be destroyed or otherwise disposed of as provided for in the
Records Disposition Schedule.




9 FAM 42.53
PRIORITY DATE OF INDIVIDUAL
APPLICANTS
(CT:VISA-2037; 10-03-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.53 RELATED STATUTORY PROVISIONS
(CT:VISA-2037; 10-03-2013)
See INA 203(a) (8 U.S.C. 1153(a)), INA 203(b) (8 U.S.C. 1153(b)), INA 203(d) (8
U.S.C. 1153(d)), INA 203(e) (8 U.S.C. 1153(e)), and INA 203(g) (8 U.S.C.
1153(g))

INA 203(a), (b), (d), (e), (g) Allocation of Immigrant Visas
(a)Preference allocation for family-sponsored immigrants. Aliens subject to the
worldwide level specified in section 201(c) for family-sponsored immigrants
shall be allotted visas as follows:
(1) Unmarried sons and daughters of citizens. Qualified immigrants who are
the unmarried sons or daughters of citizens of the United States shall be
allocated visas in a number not to exceed 23,400, plus any visas not
required for the class specified in paragraph (4).
(2) Spouses and unmarried sons and unmarried daughters of permanent
resident aliens.
Qualified immigrants
(A) Who are the spouses or children of an alien lawfully admitted for
permanent residence, or
(B) Who are the unmarried sons or unmarried daughters (but are not the
children) of an alien lawfully admitted for permanent residence,
shall be allocated visas in a number not to exceed 114,200, plus the number (if
any) by which such worldwide level exceeds 226,000, plus any visas not
required for the class specified in paragraph (1); except that not less than 77
percent of such visa numbers shall be allocated to aliens described in
subparagraph (A).
(3) Married sons and married daughters of citizens. Qualified immigrants
who are the married sons or married daughters of citizens of the United
States shall be allocated visas in a number not to exceed 23,400, plus any
visas not required for the classes specified in paragraphs (1) and (2).


(4) Brothers and sisters of citizens. Qualified immigrants who are the
brothers or sisters of citizens of the United States, if such citizens are at
least 21 years of age, shall be allocated visas in a number not to exceed
65,000, plus any visas not required for the classes specified in paragraphs
(1) through (3).
(b) Preference allocation for employment-based immigrants. Aliens subject to
the worldwide level specified in section 201(d) for employment-based
immigrants in a fiscal year shall be allotted visas as follows:
(1) Priority workers. Visas shall first be made available in a number not to
exceed 28.6 percent of such worldwide level, plus any visas not required
for the classes specified in paragraphs (4) and (5), to qualified immigrants
who are aliens described in any of the following subparagraphs (A) through
(C):
(A) Aliens with extraordinary ability. An alien is described in this
subparagraph if
(i) The alien has extraordinary ability in the sciences, arts,
education, business, or athletics which has been demonstrated
by sustained national or international acclaim and whose
achievements have been recognized in the field through
extensive documentation,
(ii) The alien seeks to enter the United States to continue work in
the area of extraordinary ability, and
(iii) The aliens entry into the United States will substantially benefit
prospectively the United States.
(B) Outstanding professors and researchers. An alien is described in this
subparagraph if
(i) The alien is recognized internationally as outstanding in a
specific academic area,
(ii) The alien has at least 3 years of experience in teaching or
research in the academic area, and
(iii) The alien seeks to enter the United States
(I) For a tenured position (or tenure-track position) within a
university or institution of higher education to teach in the
academic area,
(II) For a comparable position with a university or institution of
higher education to conduct research in the area, or
(III) For a comparable position to conduct research in the area
with a department, division, or institute of a private employer, if
the department, division, or institute employs at least 3 persons
full-time in research activities and has achieved documented


accomplishments in an academic field.
(C) Certain multinational executives and managers. An alien is described
in this subparagraph if the alien, in the 3 years preceding the time of
the aliens application for classification and admission into the United
States under this subparagraph, has been employed for at least 1 year
by a firm or corporation or other legal entity or an affiliate or
subsidiary thereof and the alien seeks to enter the United States in
order to continue to render services to the same employer or to a
subsidiary or affiliate thereof in a capacity that is managerial or
executive.
(2) Aliens who are members of the professions holding advanced degrees or
aliens of exceptional ability. -
(A) In general. Visas shall be made available, in a number not to exceed
28.6 percent of such worldwide level, plus any visas not required for
the classes specified in paragraph (1), to qualified immigrants who are
members of the professions holding advanced degrees or their
equivalent or who because of their exceptional ability in the sciences,
arts, or business, will substantially benefit prospectively the national
economy, cultural or educational interests, or welfare of the United
States, and whose services in the sciences, arts, professions, or
business are sought by an employer in the United States.
(B) Waiver of job offer.
(i) National interest waiver. - Subject to clause (ii), the Attorney
General may, when the Attorney General deems it to be in the
national interest, waive the requirements of subparagraph (A)
that an aliens services in the sciences, arts, professions, or
business be sought by an employer in the United States.
(ii) Physicians working in shortage areas or veterans facilities.
(I) In general. The Attorney General shall grant a national interest
waiver pursuant to clause (i) on behalf of any alien physician
with respect to whom a petition for preference classification has
been filed under subparagraph (A) if
(aa) The alien physician agrees to work full time as a physician
in an area or areas designated by the Secretary of Health and
Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of
the Secretary of Veterans Affairs; and
(bb) A Federal agency or a department of public health in any
State has previously determined that the alien physicians work
in such an area or at such facility was in the public interest.
(II) Prohibition. No permanent resident visa may be issued to an


alien physician described in subclause (I) by the Secretary of
State under section 204 (b), and the Attorney General may not
adjust the status of such an alien physician from that of a
nonimmigrant alien to that of a permanent resident alien under
section 245, until such time as the alien has worked full time as
a physician for an aggregate of 5 years (not including the time
served in the status of an alien described in section
101(a)(15)(J)), in an area or areas designated by the Secretary
of Health and Human Services as having a shortage of health
care professionals or at a health care facility under the
jurisdiction of the Secretary of Veterans Affairs.
(III) Statutory construction. Nothing in this subparagraph may be
construed to prevent the filing of a petition with the Attorney
General for classification under section 204 (a), or the filing of
an application for adjustment of status under section 245, by an
alien physician described in subclause (I) prior to the date by
which such alien physician has completed the service described
in subclause (II).
(IV) Effective date. The requirements of this subsection do not
affect waivers on behalf of alien physicians approved under
section 203(b)(2)(B) before the enactment date of this
subsection. In the case of a physician for whom an application
for a waiver was filed under section 203(b)(2)(B) prior to
November 1, 1998, the Attorney General shall grant a national
interest waiver pursuant to section 203(b)(2)(B) except that the
alien is required to have worked full time as a physician for an
aggregate of 3 years (not including time served in the status of
an alien described in section 101 (a)(15)(J)) before a visa can be
issued to the alien under section 204 (b) or the status of the
alien is adjusted to permanent resident under section 245.
(C) Determination of exceptional ability. In determining under
subparagraph (A) whether an immigrant has exceptional ability, the
possession of a degree, diploma, certificate, or similar award from a
college, university, school, or other institution of learning or a license
to practice or certification for a particular profession or occupation
shall not by itself be considered sufficient evidence of such exceptional
ability.
(3) Skilled workers, professionals, and other workers.
(A) In general. Visas shall be made available, in a number not to exceed
28.6 percent of such worldwide level, plus any visas not required for
the classes specified in paragraphs (1) and (2), to the following classes
of aliens who are not described in paragraph (2):
(i) Skilled workers.- Qualified immigrants who are capable, at the


time of petitioning for classification under this paragraph, of
performing skilled labor (requiring at least 2 years training or
experience), not of a temporary or seasonal nature, for which
qualified workers are not available in the United States.
(ii) Professionals.- Qualified immigrants who hold baccalaureate
degrees and who are members of the professions.
(iii) Other workers.- Other qualified immigrants who are capable, at
the time of petitioning for classification under this paragraph, of
performing unskilled labor, not of a temporary or seasonal
nature, for which qualified workers are not available in the
United States.
(B) Limitation on other workers. Not more than 10,000 of the visas
made available under this paragraph in any fiscal year may be
available for qualified immigrants described in subparagraph (A)(iii).
(C) Labor certification required. An immigrant visa may not be issued to
an immigrant under subparagraph (A) until the consular officer is in
receipt of a determination made by the Secretary of Labor pursuant to
the provisions of section 212(a)(5)(A).
(4) Certain special immigrants. Visas shall be made available, in a number
not to exceed 7.1 percent of such worldwide level, to qualified special
immigrants described in section 101 (a)(27) (other than those described in
subparagraph (A) or (B) thereof), of which not more than 5,000 may be
made available in any fiscal year to special immigrants described in
subclause (II) or (III) of section 101 (a)(27)(C)(ii), and not more than 100
may be made available in any fiscal year to special immigrants, excluding
spouses and children, who are described in section 101 (a)(27)(M).
(5) Employment creation.
(A) In general. Visas shall be made available, in a number not to exceed
7.1 percent of such worldwide level, to qualified immigrants seeking to
enter the United States for the purpose of engaging in a new
commercial enterprise (including a limited partnership)
(i) In which such alien has invested (after the date of the
enactment of the Immigration Act of 1990) or, is actively in the
process of investing, capital in an amount not less than the
amount specified in subparagraph (C), and
(ii) Which will benefit the United States economy and create full-
time employment for not fewer than 10 United States citizens or
aliens lawfully admitted for permanent residence or other
immigrants lawfully authorized to be employed in the United
States (other than the immigrant and the immigrants spouse,
sons, or daughters).


(B) Set-aside for targeted employment areas.
(i) In general. Not less than 3,000 of the visas made available
under this paragraph in each fiscal year shall be reserved for
qualified immigrants who invest in a new commercial enterprise
described in subparagraph (A) which will create employment in a
targeted employment area.
(ii) Targeted employment area defined. In this paragraph, the
term targeted employment area means, at the time of the
investment, a rural area or an area which has experienced high
unemployment (of at least 150 percent of the national average
rate).
(iii) Rural area defined. In this paragraph, the term rural area
means any area other than an area within a metropolitan
statistical area or within the outer boundary of any city or town
having a population of 20,000 or more (based on the most
recent decennial census of the United States).
(C) Amount of capital required.
(i) In general. Except as otherwise provided in this subparagraph,
the amount of capital required under subparagraph (A) shall be
$1,000,000. The Attorney General, in consultation with the
Secretary of Labor and the Secretary of State, may from time to
time prescribe regulations increasing the dollar amount specified
under the previous sentence.
(ii) Adjustment for targeted employment areas. The Attorney
General may, in the case of investment made in a targeted
employment area, specify an amount of capital required under
subparagraph (A) that is less than (but not less than 1/2 of) the
amount specified in clause (i).
(iii) Adjustment for high employment areas. In the case of an
investment made in a part of a metropolitan statistical area that
at the time of the investment
(I) Is not a targeted employment area, and
(II) Is an area with an unemployment rate significantly below
the national average unemployment rate, the Attorney General
may specify an amount of capital required under subparagraph
(A) that is greater than (but not greater than 3 times) the
amount specified in clause (i).
(D) Full-time employment defined. In this paragraph, the term full-time
employment means employment in a position that requires at least
35 hours of service per week at any time, regardless of who fills the
position.


(6) Special rules for K special immigrants.
(A) Not counted against numerical limitation in year involved. Subject to
subparagraph (B), the number of immigrant visas made available to
special immigrants under section 101(a)(27)(K) in a fiscal year shall
not be subject to the numerical limitations of this subsection or of
section 202(a).
(B) Counted against numerical limitations in following year.
(i) Reduction in employment-based immigrant classifications. The
number of visas made available in any fiscal year under
paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the
number of visas made available in the previous fiscal year to
special immigrants described in section 101(a)(27)(K).
(ii) Reduction in per country level. The number of visas made
available in each fiscal year to natives of a foreign state under
section 202(a) shall be reduced by the number of visas made
available in the previous fiscal year to special immigrants
described in section 101 (a)(27)(K) who are natives of the
foreign state.
(iii) Reduction in employment-based immigrant classifications within
per country ceiling. In the case of a foreign state subject to
section 202(e) in a fiscal year (and in the previous fiscal year),
the number of visas made available and allocated to each of
paragraphs (1) through (3) of this subsection in the fiscal year
shall be reduced by 1/3 of the number of visas made available in
the previous fiscal year to special immigrants described in
section 101(a)(27)(K) who are natives of the foreign state.
203(d) Treatment of family members. A spouse or child as defined in
subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise
entitled to an immigrant status and the immediate issuance of a visa under
subsection (a), (b), or (c), be entitled to the same status, and the same order of
consideration provided in the respective subsection, if accompanying or following
to join, the spouse or parent.
203(e) Order of consideration.
(1) Immigrant visas made available under subsection (a) or (b) shall be issued
to eligible immigrants in the order in which a petition in behalf of each such
immigrant is filed with the Attorney General (or in the case of special
immigrants under section 101 (a)(27)(D), with the Secretary of State) as
provided in section 204(a).
(2) Immigrant visa numbers made available under subsection (c) (relating to
diversity immigrants) shall be issued to eligible qualified immigrants strictly
in a random order established by the Secretary of State for the fiscal year
involved.


(3) Waiting lists of applicants for visas under this section shall be maintained in
accordance with regulations prescribed by the Secretary of State.
203(g) Lists. For purposes of carrying out the Secretarys responsibilities in the
orderly administration of this section, the Secretary of State may make reasonable
estimates of the anticipated numbers of visas to be issued during any quarter of
any fiscal year within each of the categories under subsections (a), (b), and (c)
and to rely upon such estimates in authorizing the issuance of visas. The Secretary
of State shall terminate the registration of any alien who fails to apply for an
immigrant visa within one year following notification to the alien of the availability
of such visa, but the Secretary shall reinstate the registration of any such alien
who establishes within 2 years following the date of notification of the availability
of such visa that such failure to apply was due to circumstances beyond the aliens
control.


9 FAM 42.53 RELATED REGULATORY
PROVISIONS
(CT:VISA-1551; 09-29-2010)
42.53 Priority date of individual applicants.
(a)Preference applicant. The priority date of a preference visa applicant under INA
203 (a) or (b) shall be the filing date of the approved petition that accorded
preference status.
(b) Former Western Hemisphere applicant with priority date prior to January 1,
1977. Notwithstanding the provisions of paragraph (a) of this section, an alien
who, prior to January 1, 1977, was subject to the numerical limitation specified
in section 21(e) of the Act of October 3, 1965, and who was registered as a
Western Hemisphere immigrant with a priority date prior to January 1, 1977,
shall retain that priority date as a preference immigrant upon approval of a
petition according status under INA 203 (a) or (b).
(c) Derivative priority date for spouse or child of principal alien. A spouse or child of
a principal alien acquired prior to the principal alien's admission shall be entitled
to the priority date of the principal alien, whether or not named in the
immigrant visa application of the principal alien. A child born of a marriage
which existed at the time of a principal alien's admission to the United States is
considered to have been acquired prior to the principal alien's admission.






9 FAM 42.53
PROCEDURAL NOTES
(CT:VISA-1546; 09-27-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.53 PN1 DETERMINING DERIVATIVE
STATUS

9 FAM 42.53 PN1.1 When Post Records Exist
(CT:VISA-1355; 10-21-2009)
a. When the post issues the principal applicant a visa, it should maintain
complete records regarding the principal alien's issuance, classification,
chargeability, and priority date to facilitate the processing of following-to-
join beneficiaries. Posts must follow proper procedures in the automated
immigrant visa processing system to ensure that following-to-join case
records are maintained accurately. Posts should not create new cases for
following-to-join applicants if the principal was issued a visa at that post.
b. In cases where the principal alien has been issued a visa at post, the post
should establish a file for the following-to-join applicants which should
include the following:
(1) Copy of the original petition;
(2) Copy of the principal aliens immigrant visa (IV) application;
(3) Copies of civil documents for each derivative beneficiary; and
(4) Memorandum confirming biodata for derivative beneficiaries and
tentative travel plans.
c. In cases where the principal applicant plans to precede the family to the
United States, posts may wish to arrange an informal examination of the
other members at the time of the principals application. This will allow
post to ascertain whether any of the family members has a possible
mental, physical, or other ground of ineligibility which may prohibit the
issuance of a visa, and thus would prevent or delay them in joining the
principal. (See 9 FAM 42.68 N1.)

9 FAM 42.53 PN1.2 When Post Record Does Not
Exist




(CT:VISA-1546; 09-27-2010)
a. If no post record exists, posts should make every effort to verify the
principal alien's visa category, chargeability, priority date, and admission
into the United States based on available documentation such as:
(1) The principal alien's Form I-551, Permanent Resident Card;
(2) Form I-895, Attestation of Alien and Memorandum of Creation of
Record of Lawful Permanent Residence, Form I-181, Memorandum
of Creation of Record of Lawful Permanent Residence, or Form I-
824, Application for Action on an Approved Application or Petition;
(3) Cabled notification from the Department of Homeland Security
(DHS); or
(4) The principal alien's ADIT stamp showing entry as an immigrant.
b. The principal alien has the primary responsibility for establishing his or
her legal resident status.

9 FAM 42.53 PN1.3 When Principal Adjusts Status
(CT:VISA-1355; 10-21-2009)
In cases where the principal alien who adjusted status in the United States
presents Form I-551, Permanent Resident Card, with the visa application of
a relative entitled to derivative classification and priority date (see 9 FAM
42.53 N6), the consular officer should create a case record for the derivative
applicants. At a minimum, this record should include:
(1) Name, date and place of birth of the visa applicant;
(2) Name of the permanent resident and relationship to the applicant;
(3) Date of presentation of Form I-551; and
(4) Resident aliens registration number, date of admission for
permanent residence, and visa classification.


9 FAM 42.53 PN2 FRAUD AND FOLLOWING-
TO-JOIN CASES
(CT:VISA-836; 08-22-2006)
Since visa processing in follow-to-join cases is based primarily on documents
presented by the applicant, a potential for fraud exists. Internal controls,
document checks, and record verification are all means of guarding against
fraud. However, consular officers should establish clear, consistent
procedures for handling following-to-join cases based on the level of fraud
which exists in the country and the security of local civil documents. Where




the post has issued a visa to the principal alien, posts should retain as much
pertinent information as possible on derivative beneficiaries who may apply
later. In cases where the post receives Department of Homeland Security
(DHS) notification of the principal aliens adjustment, confirmation of
derivative beneficiaries identities and claimed relationship is essential.


9 FAM 42.53 PN3 NAMECHECKS FOR
DERIVATIVE BENEFICIARIES
(CT:VISA-1109; 11-14-2008)
Derivative beneficiaries should be namechecked in the Consular Lookout and
Support System (CLASS) and fingerprints scanned of applicants 14 years of
age or older. (See 9 FAM Appendix L for more information on biometrics.)






9 FAM 42.53
PROCEDURAL NOTES
(CT:VISA-1546; 09-27-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.53 PN1 DETERMINING DERIVATIVE
STATUS

9 FAM 42.53 PN1.1 When Post Records Exist
(CT:VISA-1355; 10-21-2009)
a. When the post issues the principal applicant a visa, it should maintain
complete records regarding the principal alien's issuance, classification,
chargeability, and priority date to facilitate the processing of following-to-
join beneficiaries. Posts must follow proper procedures in the automated
immigrant visa processing system to ensure that following-to-join case
records are maintained accurately. Posts should not create new cases for
following-to-join applicants if the principal was issued a visa at that post.
b. In cases where the principal alien has been issued a visa at post, the post
should establish a file for the following-to-join applicants which should
include the following:
(1) Copy of the original petition;
(2) Copy of the principal aliens immigrant visa (IV) application;
(3) Copies of civil documents for each derivative beneficiary; and
(4) Memorandum confirming biodata for derivative beneficiaries and
tentative travel plans.
c. In cases where the principal applicant plans to precede the family to the
United States, posts may wish to arrange an informal examination of the
other members at the time of the principals application. This will allow
post to ascertain whether any of the family members has a possible
mental, physical, or other ground of ineligibility which may prohibit the
issuance of a visa, and thus would prevent or delay them in joining the
principal. (See 9 FAM 42.68 N1.)

9 FAM 42.53 PN1.2 When Post Record Does Not
Exist




(CT:VISA-1546; 09-27-2010)
a. If no post record exists, posts should make every effort to verify the
principal alien's visa category, chargeability, priority date, and admission
into the United States based on available documentation such as:
(1) The principal alien's Form I-551, Permanent Resident Card;
(2) Form I-895, Attestation of Alien and Memorandum of Creation of
Record of Lawful Permanent Residence, Form I-181, Memorandum
of Creation of Record of Lawful Permanent Residence, or Form I-
824, Application for Action on an Approved Application or Petition;
(3) Cabled notification from the Department of Homeland Security
(DHS); or
(4) The principal alien's ADIT stamp showing entry as an immigrant.
b. The principal alien has the primary responsibility for establishing his or
her legal resident status.

9 FAM 42.53 PN1.3 When Principal Adjusts Status
(CT:VISA-1355; 10-21-2009)
In cases where the principal alien who adjusted status in the United States
presents Form I-551, Permanent Resident Card, with the visa application of
a relative entitled to derivative classification and priority date (see 9 FAM
42.53 N6), the consular officer should create a case record for the derivative
applicants. At a minimum, this record should include:
(1) Name, date and place of birth of the visa applicant;
(2) Name of the permanent resident and relationship to the applicant;
(3) Date of presentation of Form I-551; and
(4) Resident aliens registration number, date of admission for
permanent residence, and visa classification.


9 FAM 42.53 PN2 FRAUD AND FOLLOWING-
TO-JOIN CASES
(CT:VISA-836; 08-22-2006)
Since visa processing in follow-to-join cases is based primarily on documents
presented by the applicant, a potential for fraud exists. Internal controls,
document checks, and record verification are all means of guarding against
fraud. However, consular officers should establish clear, consistent
procedures for handling following-to-join cases based on the level of fraud
which exists in the country and the security of local civil documents. Where




the post has issued a visa to the principal alien, posts should retain as much
pertinent information as possible on derivative beneficiaries who may apply
later. In cases where the post receives Department of Homeland Security
(DHS) notification of the principal aliens adjustment, confirmation of
derivative beneficiaries identities and claimed relationship is essential.


9 FAM 42.53 PN3 NAMECHECKS FOR
DERIVATIVE BENEFICIARIES
(CT:VISA-1109; 11-14-2008)
Derivative beneficiaries should be namechecked in the Consular Lookout and
Support System (CLASS) and fingerprints scanned of applicants 14 years of
age or older. (See 9 FAM Appendix L for more information on biometrics.)




9 FAM 42.53 EXHIBIT I FAMILY-
SPONSORED PETITIONS
(CT:VISA-2038; 10-03-2013)
(Office of Origin: CA/VO/L/R)
8 CFR 204.1(b) General information about immediate relative and family-
sponsored petitions. (In Part)
(b) Proper filing. A petition for alien relative and a petition for Amerasian,
widow(er), or special immigrant must be filed on the form prescribed by USCIS
in accordance with the form instructions, and will be considered properly filed
when the petition is filed in accordance with 8 CFR 103.2. The filing date of a
petition is the date it is properly filed and received by USCIS. That date will
constitute the priority date.
8 CFR 204.2(h) and (i) Petitions for relatives, widows and widowers, and
abused spouses and children. (In part)
(h) Validity of approved petitions.
(1) General. Unless terminated pursuant to section 203(g) of the Act or
revoked pursuant to Part 205 of this chapter, the approval of a petition to
classify an alien as a preference immigrant under paragraphs (a)(1),
(a)(2), (a)(3), or (a)(4) of section 203 of the Act, or as an immediate
relative under section 201(b) of the Act, shall remain valid for the duration
of the relationship to the petitioner and of the petitioners status as
established in the petition.
(2) Subsequent petition by same petitioner for same beneficiary. When a visa
petition has been approved, and subsequently a new petition by the same
petitioner is approved for the same preference classification on behalf of
the same beneficiary, the latter approval shall be regarded as a
reaffirmation or reinstatement of the validity of the original petition, except
when the original petition has been terminated pursuant to section 203(g)
of the Act or revoked pursuant to Part 205 of this chapter, or when an
immigrant visa has been issued to the beneficiary as a result of the petition
approval
(i) Automatic conversion of preference classification.
(1) By change in beneficiarys marital status.
(i) A currently valid petition previously approved to classify the
beneficiary as the unmarried son or daughter of a United States citizen
under section 203(a)(1) of the Act shall be regarded as having been
approved for preference status under section 203(a)(3) of the Act as
of the date the beneficiary marries. The beneficiarys priority date is


the same as the date the petition for classification under section
203(a)(1) of the Act was properly filed.
(ii) A currently valid petition previously approved to classify a child of a
United States citizen as an immediate relative under section 201(b) of
the Act shall be regarded as having been approved for preference
status under section 203(a)(3) of the Act as of the date the beneficiary
marries. The beneficiarys priority date is the same as the date the
petition for 201(b) classification was properly filed.
(iii) A currently valid petition classifying the married son or married
daughter of a United States citizen for preference status under section
203(a)(3) of the Act shall, upon legal termination of the beneficiarys
marriage, be regarded as having been approved under section
203(a)(1) of the Act if the beneficiary is over twenty-one years of age.
The beneficiarys priority date is the same as the date the petition for
classification under section 203(a)(3) of the Act was properly filed. If
the beneficiary is under twenty-one years of age, the petition shall be
regarded as having been approved for classification as an immediate
relative under section 201(b) of the Act as of the date the petition for
classification under section 203(a)(3) of the Act was properly filed.
(iv) A currently valid visa petition previously approved to classify the
beneficiary as an immediate relative as the spouse of a United States
citizen must be regarded, upon the death of the petitioner, as having
been approved as a Form I-360, Petition for Amerasian, Widow(er) or
Special Immigrant for classification under paragraph (b) of this
section, if, on the date of the petitioner's death, the beneficiary
satisfies the requirements of paragraph (b)(1) of this section. If the
petitioner dies before the petition is approved, but, on the date of the
petitioner's death, the beneficiary satisfies the requirements of
paragraph (b)(1) of this section, then the petition shall be adjudicated
as if it had been filed as a Form I-360, Petition for Amerasian,
Widow(er) or Special Immigrant under paragraph (b) of this section.
(2) By the beneficiarys attainment of the age of twenty-one years. A currently
valid petition classifying the child of a United States citizen as an
immediate relative under section 201(b) of the Act shall be regarded as
having been approved for preference status under section 203(a)(1) of the
Act as of the beneficiarys twenty-first birthday. The beneficiarys priority
date is the same as the date the petition for section 201(b) classification
was filed.
(3) By the petitioners naturalization. Effective upon the date of naturalization
of a petitioner who had been lawfully admitted for permanent residence, a
currently valid petition according preference status under section 203(a)(2)
of the Act to the petitioners spouse and unmarried children under twenty-
one years of age shall be regarded as having been approved for immediate


relative status under section 201(b) of the Act. Similarly, a currently valid
petition according preference status under section 203(a)(2) of the Act for
the unmarried son or daughter over twenty-one years of age shall be
regarded as having been approved under section 203(a)(1) of the Act. In
any case of conversion to classification under section 203(a)(1) of the Act,
the beneficiarys priority date is the same as the date the petition for
classification under section 203(a)(2) of the Act was properly filed. A self-
petition filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act
based on the relationship to an abusive lawful permanent resident of the
United States for classification under section 203(a)(2) of the Act will not
be affected by the abusers naturalization and will not be automatically
converted to a petition for immediate relative classification.




9 FAM 42.53 EXHIBIT II
EMPLOYMENT-BASED PETITIONS
(CT:VISA-1874; 09-07-2012)
(Office of Origin: CA/VO/L/R)
8 CFR 204.5(d)-(f), (n) Petitions for employment-based immigrants. (In
Part)
(d) Priority date. The priority date of any petition filed for classification under
section 203(b) of the Act which is accompanied by an individual labor
certification from the Department of Labor shall be the date the request for
certification was accepted for processing by any office within the employment
service system of the Department of Labor. The priority date of any petition
filed for classification under section 203(b) of the Act which is accompanied by
an application for Schedule A designation or with evidence that the aliens
occupation is a shortage occupation within the Department of Labors Labor
Market Information Pilot Program shall be the date the completed, signed
petition (including all initial evidence and the correct fee) is properly filed with
the Service. The priority date of a petition filed for classification as a special
immigrant under section 203(b)(4) of the Act shall be the date the completed,
signed petition (including all initial evidence and the correct fee) is properly
filed with the Service. The priority date of an alien who filed for classification as
a special immigrant prior to October 1, 1991, and who is the beneficiary of an
approved I-360 petition after October 1, 1991, shall be the date the alien
applied for an immigrant visa or adjustment of status. In the case of a special
immigrant alien who applied for adjustment before October 1, 1991, Form I-
360 may be accepted and adjudicated at a Service District Office or sub-office.
(e) Retention of section 203(b)(1), (2), or (3) priority date. A petition
approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act
accords the alien the priority date of the approved petition for any subsequently
filed petition for any classification under sections 203(b)(1), (2), or (3) of the
Act for which the alien may qualify. In the event that the alien is the
beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act,
the alien shall be entitled to the earliest priority date. A petition revoked under
sections 204(e) or 205 of the Act will not confer a priority date, nor will any
priority date be established as a result of a denied petition. A priority date is
not transferable to another alien.
(f) Maintaining the priority date of a third or sixth preference petition filed
prior to October 1, 1991. Any petition filed before October 1, 1991, and
approved on any date, to accord status under section 203(a)(3) or 203(a)(6) of
the Act, as in effect before October 1, 1991, shall be deemed a petition
approved to accord status under section 203(b)(2) or within the appropriate


classification under section 203(b)(3), respectively, of the Act as in effect on or
after October 1, 1991, provided that the alien applies for an immigrant visa or
adjustment of status within the two years following notification that an
immigrant visa is immediately available for his or her use.
(n) Closing action
(3) Validity of approved petitions. Unless revoked under section 203(e)(sic)
1
or 205 of the Act, an employment-based petition is valid indefinitely.
8 CFR 211.5(c) Alien commuters. (In Part)
(c) Eligibility for benefits under the immigration and nationality laws. Until
he or she has taken up residence in the United States, an alien commuter
cannot satisfy the residence requirements of the naturalization laws and cannot
qualify for any benefits under the immigration laws on his or her own behalf or
on behalf of his or her relatives other than as specified in paragraph (a) of this
section. When an alien commuter takes up residence in the United States, he or
she shall no longer be regarded as a commuter. He or she may facilitate proof
of having taken up such residence by notifying the Service as soon as possible,
preferably at the time of his or her first reentry for that purpose. Application
for issuance of a new Permanent Resident card to show that he or she has
taken up residence in the United States shall be made in accordance with 8 CFR
264.5.
1
Should be INA 203(g).




9 FAM 42.54
ORDER OF CONSIDERATION
(CT:VISA-1749; 10-21-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.54 RELATED STATUTORY PROVISIONS
(CT:VISA-1749; 10-21-2011)
See INA 203(d) (8 U.S.C. 1153(d)), INA 203(e), in part (8 U.S.C. 1153(e)), and
INA 222(b) (8 U.S.C. 1202(b))
INA 203(d) and (e) Allocation of Immigrant Visas
(d) Treatment of family members. A spouse or child as defined in subparagraph
(A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an
immigrant status and the immediate issuance of a visa under subsection (a), (b),
or (c), be entitled to the same status, and the same order of consideration
provided in the respective subsection, if accompanying or following to join, the
spouse or parent.
(e) Order of consideration.
(1) Immigrant visas made available under subsection (a) or (b) shall be issued to
eligible immigrants in the order in which a petition in behalf of each such
immigrant is filed with the Attorney General (or in the case of special
immigrants under section 101(a)(27)(D), with the Secretary of State) as
provided in section 204(a).
(2) Immigrant visa numbers made available under subsection (c) (relating to
diversity immigrants) shall be issued to eligible qualified immigrants strictly in a
random order established by the Secretary of State for the fiscal year involved.
INA 222(b) Application for Visas
(b) Other documentary evidence for immigrant visas. Every alien applying for
an immigrant visa shall present a valid unexpired passport or other suitable travel
document, or document of identity and nationality, if such document is required
under the regulations issued by the Secretary of State. The immigrant shall furnish
to the consular officer with his application a copy of a certification by the
appropriate police authorities stating what their records show concerning the
immigrant; a certified copy of any existing prison record, military record, and
record of his birth; and a certified copy of all other records or documents
concerning him or his case which may be required by the consular officer. The
copy of each document so furnished shall be permanently attached to the
application and become a part thereof. In the event that the immigrant establishes


to the satisfaction of the consular officer that any document or record required by
this subsection is unobtainable, the consular officer may permit the immigrant to
submit in lieu of such document or record other satisfactory evidence of the fact to
which such document or record would, if obtainable, pertain. All immigrant visa
applications shall be reviewed and adjudicated by a consular officer.


9 FAM 42.54 RELATED REGULATORY
PROVISIONS
(CT:VISA-1554; 09-29-2010)
22 CFR 42.54 Order of consideration.
(a) General. Consular officers shall request applicants to take the steps necessary
to meet the requirements of INA 222(b) in order to apply formally for a visa as
follows:
(1) In the chronological order of the priority dates of all applicants within each
of the immigrant classifications specified in INA 203(a) and (b); and
(2) In the random order established by the Secretary of State for each region
for the fiscal year for applicants entitled to status under INA 203(c).




9 FAM 42.55
REPORTS ON NUMBERS AND PRIORITY
DATES OF APPLICATIONS ON RECORD
(CT:VISA-2042; 10-16-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.55 RELATED STATUTORY PROVISIONS
(CT:VISA-1748; 10-21-2011)
INA 104(a), (8 U.S.C. 1104(a)), INA 201 (8 U.S.C. 1151), INA 202(b) (8 U.S.C.
1152(b)), INA 203(e) (8 U.S.C. 1153(e)), INA 222(b) (8 U.S.C. 1202(b))
INA 104(a)
The Secretary of State shall be charged with the administration and the
enforcement of the provisions of this Act and all other immigration and nationality
laws relating to (1) the powers, duties and functions of diplomatic and consular
officers of the United States, except those powers, duties and functions conferred
upon the consular officers relating to the granting or refusal of visas; (2) the
powers, duties and functions of the Administrator; and (3) the determination of
nationality of a person not in the United States. He shall establish such
regulations; prescribe such forms of reports, entries and other papers; issue such
instructions; and perform such other acts as he deems necessary for carrying out
such provisions. He is authorized to confer or impose upon any employee of the
United States, with the consent of the head of the department or independent
establishment under whose jurisdiction the employee is serving, any of the
powers, functions, or duties conferred or imposed by this Act or regulations issued
thereunder upon officers or employees of the Department of State or of the
American Foreign Service.
INA 201
(a)In general.
Exclusive of aliens described in subsection (b), aliens born in a foreign state or
dependent area who may be issued immigrant visas or who may otherwise
acquire the status of an alien lawfully admitted to the United States for
permanent residence are limited to
(1) family-sponsored immigrants described in section 203(a) (or who are
admitted under section 211(a) on the basis of a prior issuance of a visa to
their accompanying parent under section 203(a)) in a number not to
exceed in any fiscal year the number specified in subsection (c) for that
year, and not to exceed in any of the first 3 quarters of any fiscal year 27


percent of the worldwide level under such subsection for all of such fiscal
year;
(2) employment-based immigrants described in section 203(b) (or who are
admitted under section 211(a) on the basis of a prior issuance of a visa to
their accompanying parent under section 203(b) ), in a number not to
exceed in any fiscal year the number specified in subsection (d) for that
year, and not to exceed in any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection for all of such fiscal
year; and
(3) for fiscal years beginning with fiscal year 1995, diversity immigrants
described in section 203(c) (or who are admitted under section 211(a) on
the basis of a prior issuance of a visa to their accompanying parent under
section 203(c) ) in a number not to exceed in any fiscal year the number
specified in subsection (e) for that year, and not to exceed in any of the
first 3 quarters of any fiscal year 27 percent of the worldwide level under
such subsection for all of such fiscal year.
(b) Aliens Not Subject to Direct Numerical Limitations.
Aliens described in this subsection, who are not subject to the worldwide levels
or numerical limitations of subsection (a), are as follows:
(1) (A) Special immigrants described in subparagraph (A) or (B) of section
101(a)(27).
(B) Aliens who are admitted under section 207 or whose status is adjusted
under section 209.
(C) Aliens whose status is adjusted to permanent residence under section 210,
or 245A.
(D) Aliens whose removal is canceled under section 240A(a).
(E) Aliens provided permanent resident status under section 249.
(2) (A) (i) Immediate relatives. - For purposes of this subsection, the term
immediate relatives means the children, spouses, and parents of a citizen
of the United States, except that, in the case of parents, such citizens shall
be at least 21 years of age. In the case of an alien who was the spouse of
a citizen of the United States and was not legally separated from the
citizen at the time of the citizen's death, the alien (and each child of the
alien) shall be considered, for purposes of this subsection, to remain an
immediate relative after the date of the citizen's death but only if the
spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after
such date and only until the date the spouse remarries. For purposes of
this clause, an alien who has filed a petition under clause (iii) or (iv) of
section 204(a)(1)(A) of this Act remains an immediate relative in the event
that the United States citizen spouse or parent loses United States
citizenship on account of the abuse.


(ii) Aliens admitted under section 211(a) on the basis of a prior
issuance of a visa to their accompanying parent who is such an
immediate relative.
(B) Aliens born to an alien lawfully admitted for permanent residence
during a temporary visit abroad.
(c) Worldwide Level of Family-Sponsored Immigrants.
(1) (A) The worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is, subject to subparagraph (B), equal to
(i) 480,000, minus
(ii) the sum of the number computed under paragraph (2) and the
number computed under paragraph (4), plus
(iii) the number (if any) computed under paragraph (3).
(B) (i) For each of fiscal years 1992, 1993, and 1994, 465,000 shall be
substituted for 480,000 in subparagraph (A)(i).
(ii) In no case shall the number computed under subparagraph (A)
be less than 226,000.
(2) ) The number computed under this paragraph for a fiscal year is the sum
of the number of aliens described in subparagraphs (A) and (B) of
subsection (b)(2) who were issued immigrant visas or who otherwise
acquired the status of aliens lawfully admitted to the United States for
permanent residence in the previous fiscal year.
(3) (A) The number computed under this paragraph for fiscal year 1992 is
zero.
(B) The number computed under this paragraph for fiscal year 1993 is the
difference (if any) between the worldwide level established under
paragraph (1) for the previous fiscal year and the number of visas
issued under section 203(a) during that fiscal year.
(C) The number computed under this paragraph for a subsequent fiscal
year is the difference (if any) between the maximum number of visas
which may be issued under section 203(b) (relating to employment-
based immigrants) during the previous fiscal year and the number of
visas issued under that section during that year.
(4) ) The number computed under this paragraph for a fiscal year (beginning
with fiscal year 1999) is the number of aliens who were paroled into the
United States under section 212(d)(5) in the second preceding fiscal year-
(A) who did not depart from the United States (without advance parole)
within 365 days; and
(B) who (i) did not acquire the status of aliens lawfully admitted to the
United States for permanent residence in the two preceding fiscal


years, or (ii) acquired such status in such years under a provision of
law (other than section 201(b)) which exempts such adjustment from
the numerical limitation on the worldwide level of immigration under
this section.
(5) If any alien described in paragraph (4) (other than an alien described in
paragraph (4)(B)(ii)) is subsequently admitted as an alien lawfully
admitted for permanent residence, such alien shall not again be considered
for purposes of paragraph (1).
(d) Worldwide level of employment-based immigrants
(1) ) The worldwide level of employment-based immigrants under
this subsection for a fiscal year is equal to-
(A) 140,000 plus
(B) the number computed under paragraph (2).
(2) (A) The number computer under this paragraph for fiscal year 1992 is
zero.
(B) The number computed under this paragraph for fiscal year 1993 is the
difference (if any) between the worldwide level established under
paragraph (1) for the previous fiscal year and the number of visas
issued under section 203(b) during that fiscal year.
(C) The number computed under this paragraph for a subsequent fiscal
year is the difference (if any) between the maximum number of visas
which may be issued under section 203(a) (relating to family-
sponsored immigrants) during the previous fiscal year and the number
of visas issued under that section during that year.
(e) Worldwide level of diversity immigrants.- The worldwide level of diversity
immigrants is equal to 55,000 for each fiscal year.
(f) Rules for Determining Whether Certain Aliens Are Immediate Relatives
(1) AGE ON PETITION FILING DATE- Except as provided in paragraphs (2) and
(3), for purposes of subsection (b)(2)(A)(i), a determination of whether an
alien satisfies the age requirement in the matter preceding subparagraph
(A) of section 101(b)(1) shall be made using the age of the alien on the
date on which the petition is filed with the Attorney General under section
204 to classify the alien as an immediate relative under subsection
(b)(2)(A)(i).
(2) AGE ON PARENT'S NATURALIZATION DATE- In the case of a petition under
section 204 initially filed for an alien child's classification as a family-
sponsored immigrant under section 203(a)(2)(A) , based on the child's
parent being lawfully admitted for permanent residence, if the petition is
later converted, due to the naturalization of the parent, to a petition to
classify the alien as an immediate relative under subsection (b)(2)(A)(i),


the determination described in paragraph (1) shall be made using the age
of the alien on the date of the parent's naturalization.
(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a petition under
section 204 initially filed for an alien's classification as a family-sponsored
immigrant under section 203(a)(3) , based on the alien's being a married
son or daughter of a citizen, if the petition is later converted, due to the
legal termination of the alien's marriage, to a petition to classify the alien
as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried
son or daughter of a citizen under section 203(a)(1) , the determination
described in paragraph (1) shall be made using the age of the alien on the
date of the termination of the marriage.
(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply
to self-petitioners and derivatives of self-petitioners.
INA 202(b) Rules for Chargeability
Each independent country, self-governing dominion, mandated territory, and
territory under the international trusteeship system of the United Nations, other
than the United States and its outlying possessions, shall be treated as a separate
foreign state for the purposes of a numerical level established under subsection
(a)(2) when approved by the Secretary of State. All other inhabited lands shall be
attributed to a foreign state specified by the Secretary of State. For the purposes
of this Act the foreign state to which an immigrant is chargeable shall be
determined by birth within such foreign state except that-
(1) An alien child, when accompanied by or following to join his alien parent or
parents, may be charged to the foreign state of either parent if such parent has
received or would be qualified for an immigrant visa, if necessary to prevent
the separation of the child from the parent or parents, and if immigration
charged to the foreign state to which such parent has been or would be
chargeable has not reached a numerical level established under subsection
(a)(2) for that fiscal year;
(2) If an alien is chargeable to a different foreign state from that of his spouse, the
foreign state to which such alien is chargeable may, if necessary to prevent the
separation of husband and wife, be determined by the foreign state of the
spouse he is accompanying or following to join, if such spouse has received or
would be qualified for an immigrant visa and if immigration charged to the
foreign state to which such spouse has been or would be chargeable has not
reached a numerical level established under subsection (a)(2) for that fiscal
year;
(3) an alien born in the United States shall be considered as having been born in
the country of which he is a citizen or subject, or, if he is not a citizen or
subject of any country, in the last foreign country in which he had his residence
as determined by the consular officer; and
(4) an alien born within any foreign state in which neither of his parents was born


and in which neither of his parents had a residence at the time of such alien's
birth may be charged to the foreign state of either parent.
INA 203(e) Order of Consideration
(1) Immigrant visas made available under subsection (a) or (b) shall be issued to
eligible immigrants in the order in which a petition in behalf of each such
immigrant is filed with the Attorney General (or in the case of special
immigrants under section 101(a)(27)(D) , with the Secretary of State) as
provided in section 204(a).
(2) Immigrant visa numbers made available under subsection (c) (relating to
diversity immigrants) shall be issued to eligible qualified immigrants strictly in a
random order established by the Secretary of State for the fiscal year involved.
(3) Waiting lists of applicants for visas under this section shall be maintained in
accordance with regulations prescribed by the Secretary of State.
INA 222(b)
Every alien applying for an immigrant visa shall present a valid unexpired passport
or other suitable travel document, or document of identity and nationality, if such
document is required under the regulations issued by the Secretary of State. The
immigrant shall furnish to the consular officer with his application a copy of a
certification by the appropriate police authorities stating what their records show
concerning the immigrant; a certified copy of any existing prison record, military
record, and record of his birth; and a certified copy of all other records or
documents concerning him or his case which may be required by the consular
officer. The copy of each document so furnished shall be permanently attached to
the application and become a part thereof. In the event that the immigrant
establishes to the satisfaction of the consular officer that any document or record
required by this subsection is unobtainable, the consular officer may permit the
immigrant to submit in lieu of such document or record other satisfactory evidence
of the fact to which such document or record would, if obtainable, pertain. All
immigrant visa applications shall be reviewed and adjudicated by a consular
officer.


9 FAM 42.55 RELATED REGULATORY
PROVISIONS
(CT:VISA-2042; 10-16-2013)
22 CFR 42.55 Reports on numbers and priority dates of applications on
record.
(a)Consular officers shall report periodically, as the Department may direct, the
number and priority dates of all applicants subject to the numerical limitations
prescribed in INA 201, 202, and 203 whose immigrant visa applications have
been recorded in accordance with Sec. 42.52(c).


(b) Documentarily qualified applicants. Consular officers shall also report
periodically, as the Department may direct, the number and priority dates of all
applicants described in paragraph (a) of this section who have informed the
consular office that they have obtained the documents required under INA
222(b), for whom the necessary clearance procedures have been completed.






9 FAM 42.55
NOTES
(CT:VISA-1560; 09-30-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.55 N1 POST REPORTS OF
IMMIGRANT VISA (IV) APPLICANTS

9 FAM 42.55 N1.1 Monthly Reports of Qualified
Applicants
(CT:VISA-1560; 09-30-2010)

The documentarily qualified figures submitted monthly (see 22 CFR and 9
FAM 42.52 N3.5) provide the Department the known total (by priority date,
chargeability, classification, and post) of visa applicants who are awaiting
only visa numbers to apply formally for a visa. After collation of these data,
the Department makes monthly allotments to the extent available visa
numbers permit. (See 22 CFR and 9 FAM 42.51.) If demand exceeds the
supply of available numbers, the priority date of the first applicant for whom
a number is not available becomes the issuance cutoff date for the
categories and foreign states concerned. The documentarily qualified totals
are used for setting the cutoff dates. It is therefore essential that the
following general guidelines be strictly observed in preparing the monthly
reports of documentarily qualified applicants:

(1) All immigrant visa (IV) processing posts having documentarily
qualified demand to report and the National Visa Center (NVC) must
prepare Report 20, Monthly Report of Documentarily Qualified
Immigrant Visa Demand, and submit it so that it arrives in the
Department (CA/VO/F/I) before the first working day of the month.
The automated immigrant visa (IV) processing system is used to
generate this report and submit it via e-mail.

(2) Data entry must be kept up to date so that all applicants who have
become documentarily qualified during the reporting period are
included.

(3) No applicants priority date should be reported twice unless an
allocation was made on the basis of a previous documentarily




qualified report and the applicant either failed to keep the
appointment or was not qualified for a visa at that time and has
subsequently returned.


9 FAM 42.55 N1.2 Monthly Report of Immigrant
Visas (IV) Issued
(CT:VISA-1560; 09-30-2010)

At the end of each month, posts authorized to issue immigrant visas (IV)
must prepare and transmit the Immigrant Visa Workload Monthly Report
(Report 28 in the automated immigrant visa (IV) processing system). This
report will reflect all immigrant visas (IV) issued during the month.


9 FAM 42.55 N1.3 Annual Report
(CT:VISA-1560; 09-30-2010)

The Annual Report of Immigrant Visa Applicants Subject to Numerical
Limitations (Report 29 in the automated system) is no longer required
unless specifically requested by the Department.


9 FAM 42.55 N2 REPORTING ISSUANCES
UNDER INA 101(a)(27)(K)
(CT:VISA-1323; 09-24-2009)

Section 2 of the Armed Forces Adjustment Act of 1991 (Public Law 102-110)
established a new special immigrant class under INA 101(a)(27)(K) (see 22
CFR and 9 FAM 42.32(d)(7)). Documentarily qualified demand in this class
should not be reported; allocations for this class will not be made by the
Department. Issuances, however, must be reported on the Immigrant Visa
Workload Monthly Report by specific visa classification symbol (SM1, SM2, or
SM3).


9 FAM 42.55 N2.1 Visa Issuances and Adjustments
Not Limited in Current Fiscal Year
(CT:VISA-1323; 09-24-2009)

Under INA 203(b)(6)(A), there are no numerical limitations for any aliens
who qualify for special immigrant status under INA 101(a)(27)(K).




However, since under INA 203(b)(6)(B) visa issuances and adjustments of
status in this class are counted against the Employment-Based numerical
limits in the following fiscal year, the Department must be kept informed of
such issuances.


9 FAM 42.55 N2.2 Effect of Visa Issuances and
Adjustments in Following Fiscal Year

9 FAM 42.55 N2.2-1 Worldwide Employment-Based
Numerical Limits
(CT:VISA-1005; 09-05-2008)

Although numerical limits do not apply in the year of issuance or adjustment
under INA 101(a)(27)(K), such visa issuances or adjustments impact visa
number availability under INA 202 and 203 in the following fiscal year. Total
admissions of immigrants whose status was based on qualification under INA
101(a)(27)(K), including spouses and children of Armed Forces personnel,
will be divided by three; one-third of the total will be subtracted from the
visa numbers available to each of the classes described in INA 203(b)(1),
(2), and (3).


9 FAM 42.55 N2.2-2 Per-Country Ceiling
(CT:VISA-1560; 09-30-2010)

In addition, the per-country numerical limitation under INA 202(a) will be
reduced by the number of such admissions attributable to natives of such
country in the following year. For countries subject to the pro rating
provisions of INA 202(e), there will also be a reduction of one-third of the
total of such admissions attributable to that country in the pro rata amount
of visas available in each of the Employment-Based First through Third
preferences.


9 FAM 42.55 N3 PREPARING REPORTS
(CT:VISA-1323; 09-24-2009)

See the immigrant visa (IV) application users manual for instructions for
preparing and submitting reports referred to in 9 FAM 42.55 N1 above.






9 FAM 42.55
PROCEDURAL NOTES
(CT:VISA-1007; 09-05-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.55 PN1 GENERAL REQUIREMENTS
FOR PROCESSING DOCUMENTARILY
QUALIFIED APPLICANTS
9 FAM 42.55 PN1.1 Qualifying Dates
(CT:VISA-1007; 09-05-2008)

Qualifying dates are established by the Department to ensure that
applicants will not be officially informed of requisite supporting
documentation requirements prematurely, i.e., prior to the time that the
availability of a visa number within a reasonable period can be foreseen.
Therefore, post or National Visa Center (NVC) will not officially and pro-
actively notify applicants of additional processing requirements unless the
qualifying date set by the Department (CA/VO/F/I) encompasses the aliens
priority date. Otherwise, it is likely that some documents would be out-of-
date by the time a visa number is available and delay in final action would
result. Nevertheless, should an applicant or agent request information
concerning additional processing requirements, this information may be
provided at any time with a warning that some documents may expire if
obtained too early in the process.


9 FAM 42.55 PN1.2 Documentarily Qualified
Applicants
(CT:VISA-1007; 09-05-2008)

Documentarily qualified means that the alien has returned Form DS-2001,
Notification of Applicant Readiness, or has otherwise informed the post or
NVC that all required documents have been obtained, and that all clearance
procedures have been completed. Under some circumstances, consular
managers may establish other screening mechanisms to verify that an
applicant is documentarily qualified (see 9 FAM 42.63 PN9). As post is
notified during the reporting period that an applicant is documentarily
qualified, the automated visa processing system should be updated as soon




as possible. (See 9 FAM 42.55 N1.)






9 FAM 42.61
PLACE OF APPLICATION FOR
IMMIGRANT VISAS
(CT:VISA-1774; 11-18-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.61 RELATED STATUTORY
PROVISION
(CT:VISA-837; 09-12-2006)
See INA 202(a), INA 222(a), and Public Law 104-208, September 30, 1996.


9 FAM 42.61 RELATED REGULATORY
PROVISIONS
(CT:VISA-837; 09-12-2006)
See 22 CFR 42.61.




9 FAM 42.61
NOTES
(CT:VISA-2059; 12-12-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.61 N1 DETERMINING PLACE OF
APPLICATION BY RESIDENCE, NOT COUNTRY OF
NATIONALITY

9 FAM 42.61 N1.1 Background
(CT:VISA-715; 03-09-2005)
Department regulations designate the aliens residence as the determining factor
for the place of application under normal circumstances. This is based on the view
that a consular officer assigned to the country of the aliens residence is in the
best position to resolve questions relating to visa eligibility. It is easier for an
officer familiar with the culture, language, and legal and political framework of the
country in which the alien lives to interpret local documents and evaluate claims
made by the alien. A fraudulent claim or document that might quickly be spotted
in the country of the aliens residence could go undetected at a post in another
part of the world. An alien fearing visa refusal may wish to apply away from home
in order to keep possible grounds of ineligibility from being discovered.
Accordingly, officers should refer to the guidelines in the following notes when
dealing with the case of any immigrant wishing to pursue an application outside
the aliens place of residence.

9 FAM 42.61 N1.2 Defining Residence
(CT:VISA-1865; 09-05-2012)
INA 101(a)(33) states, in part: The term residence means the place of general
abode; the place of general abode of a person means his or her principal, actual
dwelling place in fact, without regard to intent. If an alien can show that his or
her principal, actual dwelling place is or was in a specified country, the fact that
the alien does/did not have, or intend to have, the status of a lawful permanent
resident or any other legal status in that country is not relevant.


9 FAM 42.61 N2 ALIENS APPLYING ABROAD


9 FAM 42.61 N2.1 Usual Place of Application
(CT:VISA-1558; 09-30-2010)
a. As a general rule, an applicant in the United States should apply for a visa at
the post in the consular district of the applicants last foreign residence. That is
the only post required to accept the case for processing, although some other
post might do so as a matter of discretion.
b. However, you must accept, when so directed by the Department, the immigrant
visa (IV) case of any alien who is a citizen or a national of the consular district,
regardless of the aliens last residence abroad.
c. The assignment of an IV petition to a post by the IV processing center in the
United States will constitute such a direction by the Department.

9 FAM 42.61 N2.2 Special Exceptions

9 FAM 42.61 N2.2-1 Discretionary Cases for Hardship Reasons
(CT:VISA-1865; 09-05-2012)
The Department strongly encourages posts to consider discretionary acceptance of
the case of an alien residing in the United States if:
(1) ) The alien demonstrates that it would be a hardship if they were required
to return to the country of last foreign residence; and
(2) ) The additional workload is acceptable.

9 FAM 42.61 N2.2-2 Posts Encouraged to Accept Cases Clearly
Involving Hardship
(CT:VISA-1089; 10-23-2008)
The Department urges posts to accept legitimate hardship cases (see 9 FAM 42.61
N2.2-3 or 9 FAM 42.61 N2.2-4) when the workload permits. The Department also
encourages posts to be flexible in accepting cases which 9 FAM 42.61 N2.2-3
below would indicate should ordinarily be processed at another post in the same
country.

9 FAM 42.61 N2.2-3 Determining Hardship
(CT:VISA-1865; 09-05-2012)
a. Hardship would not usually be considered to exist when an alien does not wish
to return to the place of last foreign residence only because of inconvenience or
expense.
b. A brief, temporary absence from work would not generally be considered a
hardship.


c. Inability of an alien to travel long distances because of physical infirmity or
advanced age would be considered to entail hardship.
d. The presence of war, widespread civil disturbance, revolution, or other similar
phenomena in an aliens country of last foreign residence would be evidence
that it would be a hardship if the alien were required to return to that country.
If the post is inclined to accept a case but has doubts about the aliens claim
regarding a disturbance of some kind in the aliens last country of residence,
the Departments advice may be sought (slug telegram CA/VO/F/P).
e. Aliens from countries with no visa-issuing post could possibly entail hardship.

9 FAM 42.61 N2.2-4 Department and Post of Jurisdiction
Informed When Discretionary Case Accepted
(CT:VISA-2059; 12-12-2013)
Posts accepting a discretionary case must inform both the Departments Post
Liaison Division (CA/VO/F/P) and the post with jurisdiction over the aliens place of
residence by electronic mail. Reports of acceptance must be made in each
individual case, except when the alien is a member of a group or class of aliens
routinely accepted by the post and the Department has already been informed of
the policy, or when a group or class of aliens has been the subject of instructions
from the Department.


9 FAM 42.61 N3 THIRD COUNTRY PROCESSING
FOR ALIENS ABROAD

9 FAM 42.61 N3.1 Application of Nonresident Alien
Physically Present in District
(CT:VISA-1865; 09-05-2012)
Department regulations provide that a post must accept an application from an
alien physically present in the consular district even though not a resident in that
district, provided the alien expects to remain in the consular district throughout
the several months that it normally takes to process an application and is legally
able to do so.

9 FAM 42.61 N3.2 Application in Third Country by
Aliens Abroad
(CT:VISA-2059; 12-12-2013)
Unless physically present in the consular district as described above (see 9 FAM
42.61 N3.1) an alien in whose country of residence IVs are routinely processed


should not normally be accepted for processing by a post in a third country.
Should a post wish to accept such a case in exceptional circumstances, it must
first obtain Department (CA/VO/F/P) approval and notify the post of primary
jurisdiction.

9 FAM 42.61 N3.2-1 Defining Homeless Case
(CT:VISA-854; 11-21-2006)
Generally, a homeless visa applicant is one who is a national of a country in
which the United States has no consular representation or in which the political or
security situation is tenuous or uncertain enough that the limited consular staff is
not authorized to process IV applications. Countries whose nationals are
considered homeless are listed in 9 FAM 42.61 Exhibit I.

9 FAM 42.61 N3.2-2 Homeless Physically Present in the United
States
(CT:VISA-854; 11-21-2006)
Applicants residing in the United States may elect to apply for adjustment of
status with Department of Homeland Security (DHS) under the provisions of INA
245(i) (8 U.S.C. 1255(i)), and thus rarely require visa processing abroad.

9 FAM 42.61 N3.2-3 Homeless Physically Present in a Third
Country
(CT:VISA-1865; 09-05-2012)
Homeless applicants residing in a third country are processed at the same IV
processing post as are nationals of that country. Posts must accept for processing
any IV applicant who is physically present in their consular district, provided the
applicant has the permission of the host government to remain there legally for a
period sufficient to complete processing of the application. This does not include
persons who have been determined not to be refugees, and who are subject to
return to their country of origin.

9 FAM 42.61 N3.2-4 Homeless Physically Present in Home
Country
(CT:VISA-715; 03-09-2005)
The visa office (VO) has designated specific posts to process IV applications from
these homeless applicants. (See 9 FAM 42.61 Exhibit I for a list of nationalities
considered homeless and the posts selected to process such cases.)


9 FAM 42.61 N3.2-5 Processing Homeless Cases
(TL:VISA-175; 01-15-1998)
See 9 FAM 42.61 Procedural Notes.


9 FAM 42.61 N4 POSSIBLE DELAYS IN
PROCESSING OUT-OF-DISTRICT APPLICATIONS
(CT:VISA-1865; 09-05-2012)
Processing posts must exercise particular care to ensure that documentation and
other elements of an out-of-district application are in order. It may be necessary
to consult with the post of primary jurisdiction for background information or
document verification. This may cause delays, possibly after the formal visa
interview has taken place. The applicant should be informed of this possibility at
the time of acceptance of the case for processing.


9 FAM 42.61 N5 RESIDENCE OF ALIEN WITH NO
FIXED ADDRESS
(TL:VISA-175; 01-15-1998)
For the purpose of 22 CFR (see 9 FAM 42.61, Related Statutory Provisions). The
residence of an alien with no fixed address, such as a member of a crew, may be
determined as follows:
(1) The residence of the aliens spouse and/or children, if any, can be applied
to the alien;
(2) If paragraph (1) above does not apply, the home port of a vessel may be
used, or the location of the company employing the alien; or
(3) If neither of the above paragraphs applies, the country in which the alien
has resided the longest as an adult or the country of the aliens nationality
applies.


9 FAM 42.61 N6 HUSBAND AND WIFE WITH
DIFFERENT RESIDENCES
(CT:VISA-1865; 09-05-2012)
It would be unusual if a husband and wife resided in different consular districts but
applied for visas together. In such an event, it would be preferable for the couple
to apply where the principal alien resides, although the residence of the other
spouse may be used if more convenient.




9 FAM 42.61
PROCEDURAL NOTES
(CT:VISA-2059; 12-12-2013)
(Office of Origin: CA/VO/L/R)


9 FAM 42.61 PN1 PROCEDURE IN
TRANSFERRING CASES

9 FAM 42.61 PN1.1 Applicant Requests Transfer of Visa
Files

9 FAM 42.61 PN1.1-1 Request to Receiving Post
(TL:VISA-386; 04-05-2002)
The IV applicant (beneficiary) must request in writing that the intended receiving
post accept the case. There is no prescribed form or format for such a request,
and the applicant may make the request by letter, facsimile or electronic mail.
The applicant must send the request, along with a justification for the request, to
the intended receiving post.

9 FAM 42.61 PN1.1-2 Role of the National Visa Center (NVC) in
Post Assignment and Request to Change Post
(CT:VISA-1865; 09-05-2012)
a. Upon receipt of petitions from USCIS, the National Visa Center (NVC) will assign
the post code based on the applicants current country of residence. If the
applicant lives in the United States, the post assigned is based on the
applicants place of last foreign residence. If there is insufficient information to
determine a post, the applicant will be assigned based on their country of
nationality.
b. NVC often receives requests from applicants to change their processing post
while their petitions are already in process at NVC. In the event NVC receives a
request to change an applicants processing post, NVC attempts to collect proof
of residency as well as an address in the new country requested.
c. Some posts require specific eligibility documentation to allow applicants to
process at their post. Post will send copies of acceptable documents to show
proof of residency to the NVC (scanned images (exemplars) that are used as
reference tools at NVC). NVC will collect the appropriate documentation from


applicants prior to scheduling interviews for post.

9 FAM 42.61 PN1.1-3 Action by Receiving Post
(CT:VISA-1865; 09-05-2012)
Upon receiving the applicant's request for a transfer of the case, the intended
receiving post must decide whether it will (or must) accept the case for
processing. If the intended receiving post accepts the case, that post should
request the transferring post to transfer the case. Electronic mail is the
recommended means for making the request. (See 9 FAM 42.61 Notes for
information concerning place of application.)

9 FAM 42.61 PN1.2 Record of Transfer
(CT:VISA-1865; 09-05-2012)
Once the receiving post informs the transferring post that it will accept the
transfer, the transferring post must prepare a record of the transfer of a pending
or refused visa case by making the appropriate entry in the computerized IV
System . (See 9 FAM 42.41 PN3, and the IV System Manual for further explanation
of the IV System procedure.)


9 FAM 42.61 PN2 PROCESSING HOMELESS
CASES
(CT:VISA-2059; 12-12-2013)
The National Visa Center (NVC) will screen and assign all petitions for homeless
beneficiaries to the appropriate post for processing.


9 FAM 42.61 PN3 TRANSFERRING CASES
(CT:VISA-1865; 09-05-2012)
Posts must follow procedures in the automated immigrant visa processing system
for transferring cases. Paper files must be transferred following the proper
procedures in the automated system.




9 FAM 42.61 EXHIBIT I
LIST OF HOMELESS NATIONALITIES AND
SELECTED PROCESSING POSTS
(CT:VISA-2059; 12-12-2013)
(Office of Origin: CA/VO/L/R)


HOMELESS NATIONALITIES SELECTED PROCESSING POSTS
Eritreans* Addis Ababa (for Immigrant Visa
applicants)
Nairobi (for Immigrant Visa
applicants and petition-based
Non-Immigrant Visa
applicants)
Iranians Abu Dhabi, Ankara, Yerevan
Libyans Casablanca
Somalis Nairobi, Dar es Salaam, Djibouti
South Sudanese Nairobi
Sudanese** Cairo (except Visas 92/93
applicants)
Syrians Amman

* The designations of Addis Ababa and Nairobi as the processing post for Eritrean
Nationals is temporary while visa services are unavailable in Asmara.

**The designation of Cairo as the processing post for the Sudanese is expected to
be a temporary one, until Embassy Khartoum resumes Immigrant Visa processing.






9 FAM 42.62
PERSONAL APPEARANCE AND
INTERVIEW OF APPLICANT
(CT:VISA-1210; 04-30-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.62 RELATED STATUTORY
PROVISIONS
(CT:VISA-1210; 04-30-2009)

See INA 222(e) (8 U.S.C. 1202(e)), and Sec. 237 of Public Law 106-113.

INA 222(e)

e. Except as may be otherwise prescribed by regulations, each application
for an immigrant visa shall be signed by the applicant in the presence of
the consular officer, and verified by the oath of the applicant
administered by the consular officer. The application for an immigrant
visa, when visaed by the consular officer, shall become the immigrant
visa. The application for a nonimmigrant visa or other documentation as a
nonimmigrant shall be disposed of as may be by regulations prescribed.
The issuance of a nonimmigrant visa shall, except as may be otherwise
by regulations prescribed, be evidenced by a stamp, or other placed in
the alien's passport.


9 FAM 42.62 RELATED REGULATORY
PROVISIONS
(CT:VISA-1210; 04-30-2009)

See 22 CFR 42.62






9 FAM 42.62
NOTES
(CT:VISA-1701; 09-21-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.62 N1 PERSONAL INTERVIEW OF
VISA APPLICANTS BY CONSULAR OFFICER
(CT:VISA-1701; 09-21-2011)

a. Consular officers must make every effort to conduct visa interviews fairly
and professionally. Any semblance of aggressive cross-examination,
assumption of bad faith, or entrapment must be avoided. Applicants
should be given sufficient time to answer questions without interruption.
In cases where the consular officers determinations are difficult to make
or which are or may become the subject of controversy, the officer must
make a thorough and carefully written record of the interview so that the
basis for the final action can be fully documented. (See 9 FAM 42.81
Notes.)

b. Interviewing visa applicants is one of the consular officers most
demanding jobs, requiring the officers composure, judgment, and
diplomatic skills. Techniques for good interviewing, including the critical
skill of how to ask the right questions, deserve careful attention. Training
materials on effective interviewing and fraud interviews are available
through the Fraud Prevention Programs Consular Affairs Web page.


9 FAM 42.62 N2 INTERVIEW WHEN
APPLICANT IS SOLE BENEFICIARY OF THE
PETITION
(CT:VISA-1093; 10-31-2008)

Although the regulation permits the waiver of the personal appearance for a
child under the age of 14, the principal beneficiary, regardless of age, of any
immigrant visa (IV) petition must appear in person.




9 FAM 42.62
PROCEDURAL NOTES
(CT:VISA-1951; 12-13-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.62 PN1 PREPARING FOR
APPOINTMENT WITH APPLICANT
(CT:VISA-1464; 08-09-2010)
a. When appearing at the appointed time for the formal visa appointment, an
applicant is entitled to receive prompt attention. The post should pull and
review the following prior to the appointment, preferably the preceding day:
(1) Form DS-230, Application for Immigrant Visa and Alien Registration, or the
online IV application report associated with the submitted Form DS-260,
Online Application for Immigrant Visa and Alien Registration; and
(2) Any documents that may have been filed in the A-Z file.
b. The consular officer must send unclassified material to the document checker
for review. The consular officer must review classified material.


9 FAM 42.62 PN2 CLASS NAMECHECKS FOR
IMMIGRANT VISA APPLICANTS
(CT:VISA-1464; 08-09-2010)
The post must namecheck all immigrant visa applicants on the Consular Lookout
and Support System (CLASS). This check is conducted automatically by the
automated immigrant visa processing system. Although the national visa center
(NVC) performs a preliminary CLASS check on applicants for whom the NVC
schedules appointments before sending files to posts abroad, the consular officer
must update this clearance by performing a final CLASS check immediately prior to
the applicant's interview date.


9 FAM 42.62 PN3 U.S. CRIMINAL RECORDS
CHECKS

9 FAM 42.62 PN3.1 Federal Bureau of Investigation


(FBI) Records Checks through IAFIS
(CT:VISA-1951; 12-13-2012)
Immigrant visa (IV) applicants age 14 and above must submit fingerprints. There
is no upper-age limit exempting IV applicants from submitting fingerprints. After
the fingerprints are saved in the immigrant visas overseas (IVO) system, the
fingerprints are processed through the FBIs Integrated Automated Fingerprint
Identification System (IAFIS). (See 9 FAM Appendix L, 400, for specific
information about processing fingerprints through IAFIS.)

9 FAM 42.62 PN3.2 Validity of FBI Fingerprint Checks
(CT:VISA-1951; 12-13-2012)
There is no fixed expiration date on an IAFIS check once it has been completed. If
the applicant has never been to the United States, the check need never be done
again. Officers should exercise judgment on any clearance that is more than 1
year old. If the officer has reason to believe the applicant was in the United States
since the clearance, the officer should update the clearance. Officers should use
discretion and any available evidence at hand in determining whether to resubmit
the fingerprints to IAFIS before visa issuance.

9 FAM 42.62 PN3.3 "Law Enforcement Sensitive" (LES)
National Crime Information Center (NCIC)-III
Information

9 FAM 42.62 PN3.3-1 Defining "Law Enforcement Sensitive
(LES) Information
(CT:VISA-1951; 12-13-2012)
a. The FBI designates "Law Enforcement Sensitive" (LES) as any unclassified
information whose disclosure could jeopardize or seriously harm law
enforcement activities. All information received through the NCIC and III name
checks or via a fingerprint check is considered "Law Enforcement Sensitive.
b. The FBI has established strict rules on handling, storing, and disclosing this
information. The FBI periodically audits users with access to LES information to
ensure policy and procedures are adhered to.

9 FAM 42.62 PN3.3-2 Access to "Law Enforcement Sensitive
(LES) Information
(CT:VISA-1951; 12-13-2012)
a. Only employees with a need to know should have access to LES information.


The need-to-know is granted to individuals at post whose jobs require them to
handle criminal history records. This includes officers, Foreign Service nationals
(FSNs), part time intermittent temporary (PIT), and American family member
(AFM) employees with immigrant visas (IV) and diversity visas (DV) processing
responsibilities.
b. "Law Enforcement Sensitive (LES) information must not be left in areas where
unauthorized persons may access it. Likewise, LES information should not be
discussed with persons who do not have a need to know. As part of a visa
record, a criminal history record is protected against unauthorized disclosure
under INA 222(f). Procedures for maintaining the confidentiality of visa records
may be found in 9 FAM 40.4, Related Statutory Provisions. All employees
working with LES information must be briefed using the Diplomatic Security
(DS) briefing paper, "Requirements for the Protection of National Crime
Information Center (NCIC) Criminal History Information as LES.

9 FAM 42.62 PN3.3-3 Storage and Destruction of "Law
Enforcement Sensitive (LES) Information
(CT:VISA-1951; 12-13-2012)
a. "Law Enforcement Sensitive (LES) information must be stored in a secure
area. This requirement can be satisfied by filing the information in a locked
cabinet, or by keeping it in an office area secured by cipher lock and accessible
only to authorized employees.
b. LES information must be destroyed by burning or shredding. LES information
on diskettes or hard drives must be overwritten (i.e., unconditionally
reformatted), degaussed, or physically destroyed.

9 FAM 42.62 PN3.3-4 Dissemination of "Law Enforcement
Sensitive (LES) Information
(CT:VISA-1951; 12-13-2012)
a. A post may disseminate "Law Enforcement Sensitive" (LES) information
(including details of an applicant's criminal history record) to the Department of
Homeland Security (DHS) and other posts only when the information is
necessary for the administration or enforcement of U.S. law. For example,
criminal history records may be sent to the DHS with a waiver request, or
disclosed to another post or DHS office inquiring about a CLASS lookout entry.
Any further distribution of LES information must be cleared with the regional
security officer (RSO).
b. Posts must log where and when they disseminate LES material. This log may
be a page stapled to a category-one refusal file. Logs must be retained for a
minimum of 2 years, and may be requested from post during an FBI audit. The
log must contain:


(1) ) The name of the subject, the National Crime Information Center
(NCIC) Index Record Number (Federal Bureau of Investigation (FBI))
number;
(2) ) To whom and on what date the information was disclosed; and
(3) ) The name of the person sending it.
c. The Federal Bureau of Investigation does not permit information obtained
through a name check to be transmitted via e-mail. If information obtained
through IAFIS indicates a possible hit, this information must be faxed to the
requesting individual and only when the individual receiving the name check
request acknowledges that he or she is waiting by the receiving fax machine.

9 FAM 42.62 PN3.3-5 Certification
(CT:VISA-1951; 12-13-2012)
The consular officer in charge of the immigrant visas (IV) and/or diversity visas
(DV) section must be responsible for the proper handling of all "Law Enforcement
Sensitive (LES) information. The consular officer in charge must sign a
certification stating he or she has read the Diplomatic Security (DS) briefing paper
mentioned in 9 FAM 42.62 PN3.4-2 and has briefed U.S. and Foreign Service
national (FSN) subordinates having access to LES information. The National Visa
Center (NVC) will keep a roster of immigrant visas (IV) chiefs to establish
accountability for FBI auditors.

9 FAM 42.62 PN3.3-6 Directing Questions to Department
(CT:VISA-1951; 12-13-2012)
Posts should direct questions on the protection, storage, or dissemination of LES
information to the Post Liaison Division (CA/VO/F/P) and to DS/OA/SYS.


9 FAM 42.62 PN4 FUNCTIONS PRELIMINARY TO
INTERVIEW

9 FAM 42.62 PN4.1 Initial Duties of Document Checker
(CT:VISA-1464; 08-09-2010)
When the applicant presents the documents, the post must check the documents
for completeness and legibility. The document checker should ensure each
question on Form DS-230, Application for Immigrant Visa and Alien Registration,
or Form DS-260, Online Application for Immigrant Visa and Alien Registration, has
been answered. If a question does not apply, posts should write not applicable
or NA in the space for the answer. (For example, some questions do not apply
to small children. Posts should not use dashes or Xs (except when marking "yes-


no" boxes). If Form DS-230 is illegible or incomplete, the document checker must


return it to the applicant for completion or give the applicant a new form to be
completed legibly. If Form DS-260 is incomplete, the document checker must
reopen the application via the Reopen DS-260 button at the top of the online IV
application report and direct the applicant to log back onto the Consular Electronic
Application Center and complete the missing information. If necessary, the
document checker may assist the applicant in completing the application.

9 FAM 42.62 PN4.2 Paying Processing Fee
(CT:VISA-1940; 11-14-2012)
a. In cases where the applicant has submitted Form DS-230, Application for
Immigrant Visa and Alien Registration, once the medical forms and other
documents have been placed in logical order and the Form DS-230 is complete
and legible, the alien must take the form to the cashier and pay the processing
fee. The alien must pay before the interview. In situations described in 9 FAM
42.71 N2.2, the cashier must not collect a new processing fee. After the fee
has been paid, the document checker must give the documents, including Form
DS-230, the medical forms, applicable printouts from the automated system,
and any papers from the A-Z file, to the consular officer who will interview the
applicant.
b. In cases where the applicant has submitted Form DS-260, Online Application
for Immigrant Visa and Alien Registration, once the medical forms and other
documents have been placed in logical order and Form DS-260 is complete, the
alien must proceed to the cashier and pay the processing fee. The alien must
pay before the interview. In situations described in 9 FAM 42.71 N2.2, the
cashier must not collect a new processing fee. After the fee has been paid, the
document checker must give the documents, the medical forms, applicable
printouts from the automated system, and any papers from the A-Z file, to the
consular officer who will interview the applicant. Note: The document checker
should not print out the online IV application report associated with the
submitted Form DS-260.
NOTE: Most cases are processed through the National Visa Center (NVC) and the
processing fee will have already been collected in the United States before the
case was forwarded to post. This will be indicated by a green-ink stamp on the
front of Form DS-230, a fee information sheet stapled to the front of the inside
folder, or a memo of verification of immigrant visa (IV) fees paid.


9 FAM 42.62 PN5 VISA INTERVIEW
(CT:VISA-584; 10-14-2003)
The interview with the consular officer is the most significant part of the visa
issuing process. It is particularly important from the point of view of full and
correct application of the law. Section 237 of Public Law 106-113 and subsequent


legislation requires that the Department establish a policy under which immediate
relative (and fianc(e)) visas be processed within 30 days of receipt of the
necessary information from the applicant and the Department of Homeland
Security (DHS); all other family-based immigrant visas (IV) must be processed
within 60 days. The Department expects all posts to strive to meet the 30/60 day
requirements.

9 FAM 42.62 PN5.1 Review of Pamphlet During
Interview
(CT:VISA-1940; 11-14-2012)
During the interview of each spouse applying for an IR1, CR1 or F2A (F21, C21,
FX1, or CX1) immigrant visa, you must:
(1) Provide a copy of the USCIS pamphlet, "Information on the Legal Rights
Available to Immigrant Victims of Domestic Violence in the United States
and Facts about Immigrating on a Marriage-Based Visa," in English or
another appropriate language.
(2) Orally review with the applicant, in his or her primary language, if feasible,
or otherwise in either the language spoken in the country of application or
English, the synopsis of the points contained in the pamphlet (found at 9
FAM 41.81 Exhibit I).
(3) Add case notes in IVO that the pamphlet was received, read, and
understood by the applicant.


9 FAM 42.62 PN6 INTERVIEW EVEN IF
DOCUMENTATION IS MISSING
(CT:VISA-584; 10-14-2003)
a. In addition to the inconvenience and expense caused to the alien (particularly
an alien applying with family members), it is generally inefficient for the post if
an application is not taken and the interview not conducted on the appointment
date. In a busy post, the number of daily interviews is set to maximize the use
of space and personnel. A canceled interview results in a gap in that days
productivity without gain, since the interview must be rescheduled for another
day. In addition, there is no guarantee that the alien will be found eligible the
second time around. Rescheduling causes administrative backlogs, which, in
turn, result in lost time answering correspondence and responding to telephone
inquiries.
b. As a general rule, therefore, consular officers should accept applications from
and interview all applicants appearing on the appointed date. If an applicant
fails to present all of the required documentation, the applicant should
nevertheless pay the processing fee and be interviewed by the consular officer


who must then refuse the application under INA 221(g). The consular officer
should tell the applicant or a member of the family to mail or bring in the
missing documentation, and also the issuance fee, and make clear that the
visa(s) will be issued immediately if the documentation is found acceptable.


9 FAM 42.62 PN7 COMPLETING FORM DS-230,
APPLICATION FOR IMMIGRANT VISA AND ALIEN
REGISTRATION, IN LANGUAGE OTHER THAN
ENGLISH
(CT:VISA-1464; 08-09-2010)
To assist the Department of Homeland Security (DHS) when an applicant
completes Form DS-230, Application for Immigrant Visa and Alien Registration, in
a language other than English, the following items must appear on the applicants
Form DS-230 in the manner indicated:
(1) Age in Arabic numerals;
(2) Occupation translated into English;
(3) Final address in the United States translated into English unless the Latin
alphabet is used;
(4) Past places of residence translated into English unless the Latin alphabet is
used;
(5) Claim of exemption from exclusion completed in English;
(6) Parents names in the English version of the name; and
(7) Explanations or amplification of yes-no questions, or any other questions,
in English. (The document checker should normally make these
translations on Form DS-230.)
NOTE: Form DS-260, Online Application for Immigrant Visa and Alien
Registration, cannot be submitted in any language other than English.


9 FAM 42.62 PN8 IMPORTANCE OF U.S. ADDRESS
(CT:VISA-1464; 08-09-2010)
Department of Homeland Security (DHS) uses the address stated on Form DS-
230, Application for Immigrant Visa and Alien Registration, or on Form DS-260,
Online Application for Immigrant Visa and Alien Registration, as the alien's final
destination to mail the Form I-551, Permanent Resident Card (machine-readable
green card), to the visa recipient. It is important, therefore, that the alien furnish
as complete an address as possible, including ZIP code. The alien may use the


address of a prospective employer if there are no friends or relatives to whom
Form I-551 may be forwarded.

9 FAM 42.62 PN8.1 Action Fee Receipts
(CT:VISA-1464; 08-09-2010)
Request the two fee receipts printed through the Automated Cash Register System
(ACRS) and issued by the cashier for the processing fee. Initial both receipt
copies, return the customer copy to the applicant, and retain the Department-of-
State copy.

9 FAM 42.62 PN8.2 Explaining Significance of Oath to
Applicant
(CT:VISA-1464; 08-09-2010)
At the outset of the interview, inform the applicant that the interview will be based
on answers given to the questions on Form DS-230, Application for Immigrant
Visa and Alien Registration, or on Form DS-260, Online Application for Immigrant
Visa and Alien Registration, and any others that might arise from examination of
the supporting documents. Clarify that, after the interview is ended, the applicant
will be required to swear or affirm that all statements made during the interview
and on the form are true. Also inform the applicant of the significance of such
oath or affirmation. You may, in this connection, refer to Section 1001 of Title 18,
U.S.C. (18 U.S.C. 1001), which provides a penalty for making a false statement or
using a false document in any matter within the jurisdiction of any department or
agency of the U.S. Government. If the applicant has submitted Form DS-260, you
must have the applicant recite the following oath:
By submitting my fingerprint, I, (name) certify under penalty of perjury both that
I have read and understood the questions in my immigrant visa application and
that all statements that appear in my immigrant visa application have been made
by me and are true and complete to the best of my knowledge and belief.
Furthermore, I certify, under penalty of perjury, that all statements that I have
made in this interview are true and complete to the best of my knowledge and
belief.


9 FAM 42.62 PN8.3 Establishing That Alien
Understands Contents of Form DS-230, Application for
Immigrant Visa and Alien Registration, or Form DS-
260, Online Application for Immigrant Visa and Alien
Registration
(CT:VISA-1464; 08-09-2010)
Establish that it was the applicant who furnished the answers to the questions on
Form DS-230, Application for Immigrant Visa and Alien Registration, or on Form
DS-260, Online Application for Immigrant Visa and Alien Registration, or, if
assisted by someone else, that the applicant nevertheless is fully aware of the
nature of the application and the answers given, and has no questions about the
application. In most cases, you can accomplish this by asking the applicant a few
of the questions on the form and comparing the oral responses with the written
replies. Should the applicant appear to have inadequate knowledge of the
contents of the application, you must go over orally all questions having a bearing
on the applicants eligibility to receive a visa. To discourage professional
intermediaries from coaching applicants, avoid establishing a set pattern in
questioning applicants.

9 FAM 42.62 PN8.4 Correcting Form DS-230,
Application for Immigrant Visa and Alien Registration,
or Form DS-260, Online Application for Immigrant Visa
and Alien Registration
(CT:VISA-1464; 08-09-2010)
a. If any answers on Form DS-230, Application for Immigrant Visa and Alien
Registration, need correction or amplification, make the corrections in ink of a
distinctive color, marking each correction with a circled number for
identification, and then expand on the applicants declaration immediately
before the place for signature by writing in the same color ink the following:
The corrections numbered 1 through
may use a rubber stamp for this purpose.
are part of my application. You
b. If any answers on Form DS-260, Online Application for Immigrant Visa and
Alien Registration, need correction or amplification, make the correction using
the Add Remarks function associated with the section of the application that
needs correction or amplification. For example, if the applicant needs to correct
a gap in education history, make the correction using the Add Remarks button
on the Work/Education/Training Section of the online IV application report.

9 FAM 42.62 PN8.5 Sources of Background


Investigation Information Not Revealed
(CT:VISA-1464; 08-09-2010)
Ensure that interviews are conducted so as to persuade the applicant to make full
and frank disclosure of all information bearing on the application without
disclosure by the officer of the actual sources of information obtained during the
course of background investigations.

9 FAM 42.62 PN8.6 Consular Officers Responsibility in
Labor Certification Cases
(CT:VISA-1464; 08-09-2010)
If the applicant is applying for a visa on the basis of a job offer, labor certification,
or a Schedule-A case not previously evaluated by a consular officer, you must
determine that the applicant has the professional or occupational qualifications on
which certification is based.






9 FAM 42.63
APPLICATION FORMS AND OTHER
DOCUMENTATION
(CT:VISA-962; 05-23-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.63 RELATED STATUTORY
PROVISIONS
(CT:VISA-962; 05-23-2008)

See INA 221(g) (8 U.S.C. 1201(g)), and INA 222(a) (8 U.S.C. 1202(a)).


INA 221(g)
g. No visa or other documentation shall be issued to an alien if (1) it
appears to the consular officer, from statements in the application, or in
the papers submitted therewith, that such alien is ineligible to receive a
visa or such other documentation under section 212, or any other
provision of law, (2) the application fails to comply with the provisions of
this Act, or the regulations issued thereunder, or (3) the consular officer
knows or has reason to believe that such alien is ineligible to receive a
visa or such other documentation under section 212, or any other
provision of law: Provided, That a visa or other documentation may be
issued to an alien who is within the purview of section 212(a)(4) , if such
alien is otherwise entitled to receive a visa or other documentation, upon
receipt of notice by the consular officer from the Attorney General of the
giving of a bond or undertaking providing indemnity as in the case of
aliens admitted under section 213: Provided further, That a visa may be
issued to an alien defined in section 101(a)(15) (B) or (F) , if such alien
is otherwise entitled to receive a visa, upon receipt of a notice by the
consular officer from the Attorney General of the giving of a bond with
sufficient surety in such sum and containing such conditions as the
consular officer shall prescribe, to insure that at the expiration of the
time for which such alien has been admitted by the Attorney General, as
provided in section 214(a) , or upon failure to maintain the status under
which he was admitted, or to maintain any status subsequently acquired
under section 248 of the Act, such alien will depart from the United
States.




INA 222(a)
a. Every alien applying for an immigrant visa and for alien registration shall
make application therefore in such form and manner and at such place
as shall be by regulations prescribed. In the application the alien shall
state his full and true name, and any other name which he has used or
by which he has been known; age and sex; the date and place of his
birth; and such additional information necessary to the identification of
the applicant and the enforcement of the immigration and nationality
laws as may be by regulations prescribed.


9 FAM 42.63 RELATED REGULATORY
PROVISIONS
(CT:VISA-962; 05-23-2008)

See 22 CFR 42.63




9 FAM 42.63
NOTES
(CT:VISA-1919; 10-04-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.63 N1 APPLICATION FORMS AND
OTHER DOCUMENTATION

9 FAM 42.63 N1.1 Standard and Nonstandard Forms
(CT:VISA-1919; 10-04-2012)
The only questionnaire-type forms that may be used under standard procedures
are Form DS-230, Application for Immigrant Visa and Alien Registration, or Form
DS-260, Online Application for Immigrant Visa and Alien Registration. Any
nonstandard form, letter, or information sheet that a post believes is necessary
because of an unusual local situation must be submitted to the Post Liaison
Division, (CA/VO/F/P), for consideration, and may not be placed into use without
advance approval. The Paperwork Reduction Act required Office of Management
and Budget (OMB) approval before a U.S. Government agency may employ a new
form to collect information. This requirement includes forms for local use by
overseas consular sections.

9 FAM 42.63 N1.2 Post-Specific Information Sheets
and Local Language Translations of Forms
(CT:VISA-1919; 10-04-2012)
a. Posts may, on the other hand, prepare an additional information sheet
containing post-specific information. This information sheet should be kept as
short as possible and must be made available on posts Internet site in addition
to being provided in hard copy to visa applicants. An electronic copy of all
post-specific information sheets must be provided to the Office of Visa Services
(CA/VO) to the attention of the appropriate post liaison officer in the Post
Operations Division (CA/VO/F/P). Although post is not required to seek
advanced approval for nonstandard information sheets, note that the Visa
Office and the National Visa Center (NVC) may require coordination and
consolidation of information sheets in the interest of management efficiency.
b. Forms used in the immigrant visa process should not be translated into the
local language. If you believe it useful, you may prepare a local language
information sheet explaining the form.


9 FAM 42.63 N2 NECESSITY FOR STANDARD
PROCEDURES
(CT:VISA-1362; 10-28-2009)
Standard procedures and forms have been developed and installed at all posts to:
(1) Ensure uniformity in explaining the requirements of the law to visa
applicants;
(2) ) Reduce individual correspondence and possible misunderstandings
arising there from; and
(3) Eliminate needless files and record-keeping by requiring applicants to
retain their personal documents until the final step in the processing of the
case is reached.


9 FAM 42.63 N3 RELEASE OF INFORMATION
REGARDING PETITIONERS CRIMINAL
CONVICTIONS

9 FAM 42.63 N3.1 Convictions in General
(CT:VISA-1919; 10-04-2012)
a. Under 5 U.S.C. 552a, you cannot disclose any record pertaining to a citizen or
lawful permanent resident (LPR) of the United States to any person or to
another agency, except pursuant to a written request by, or with the prior
written consent of, the individual to whom the record pertains, unless
disclosure of the record falls under one of the Privacy Acts enumerated
exceptions. The Department, in consultation with OMB, has determined that
you may release information regarding certain criminal convictions of a visa
petitioner under the health and safety provision of the Privacy Act, 5 U.S.C.
552a(b)(8), when you find compelling circumstances affecting the health and
safety of a beneficiary, such as when:
(1) The petitioners conviction relates to a criminal offense against a minor or a
sexually violent offense; and
(2) Among the beneficiaries of the petition there is a visa applicant who will be
a member of the petitioners household. Disclosure may be made only if
you intend to approve the visa application. Before releasing the
information, you must verify that the information is accurate by conducting
a search in the National Sex Offender Public Registry or a comparable U.S.
or State public criminal registry, by entering the petitioners name, country
and/or city/town, and zip code, and comparing the information for the
individual listed in the registry with the available information regarding the


petitioner. By searching for information in such a registry, you will be
undertaking reasonable efforts to determine whether the information is
accurate and to confirm that the conviction has not been expunged from
the petitioners record. If the search produces verification of the current
existence in the registry of information concerning such a conviction that
has not been expunged, you may disclose the information to the visa
applicant or to a minor applicants parent or guardian. Disclosure must be
limited to information concerning the petitioners sex-crime conviction (and
not any other criminal arrest or conviction) that can be verified through a
U.S. public criminal registry. Appropriate case notes should be entered
into Immigrant Visa Overseas (IVO) to indicate that the applicant received
notice of the petitioners criminal history. After informing the applicant,
give the applicant time to decide whether he or she wishes to proceed with
the visa application. Also, after the disclosure is made, you must notify the
petitioner in writing that you have released information by sending
notification to his or her last known address. Sample text is found in 9
FAM 42.63 Exhibit I. (You must obtain, through an advisory opinion from
the Advisory Opinions Division (CA/VO/L/A), Department approval of the
text of the notification before sending it to the petitioner.)
b. Please contact CA/VO/L/A before making any visa-related disclosures under the
health and safety exception to the Privacy Act aside from the disclosures
outlined above.
NOTE: The guidance in this note does not apply for K-visa cases involving
petitions filed on or after March 6, 2006. Those cases are governed by the
International Marriage Brokers Regulation Act of 2005 (IMBRA), Subtitle D of
Public Law 109-162, Violence Against Women and Department of Justice
Reauthorization Act of 2005. You should disclose to a K-visa applicant during
the visa interview such information regarding the petitioners conviction
information provided by U.S. Citizenship and Immigration Services (USCIS) in
accordance with instructions provided by USCIS in the individual cases.

9 FAM 42.63 N3.2 Convictions Information and the
Adam Walsh Act
(CT:VISA-1465; 08-09-2010)
a. Section 402 of the Adam Walsh Child Protection and Safety Act of 2006 (Adam
Walsh Act), amended INA 204(a)(1) and 101(a)(15)(K), rendering ineligible to
file a petition for immigrant status under INA 203(a) or nonimmigrant K status,
any petitioner who has been convicted of a specific offense against a minor,
defined in section 111 of the Adam Walsh Act as a offense involving any of the
following:
(1) An offense (unless committed by a parent or guardian) involving
kidnapping;


(2) An offense (unless committed by a parent or guardian) involving false
imprisonment;
(3) Solicitation to engage in sexual contact;
(4) Use in a sexual performance;
(5) Solicitation to practice prostitution;
(6) Video voyeurism as described in section 1801 of title 18, United States
Code (18 U.S.C. 1801);
(7) Possession, production, or distribution of child pornography;
(8) Criminal sexual conduct involving a minor, or the use of the Internet to
facilitate or attempt such conduct; or
(9) Any conduct that by its nature is a sex offense against a minor.
Section 402 further provides that the bar against filing a petition because of
such a conviction will not apply if the Secretary of Homeland Security, in sole
and unreviewable discretion, determines that the petitioner poses no risk to the
beneficiary.
b. Because of the Adam Walsh Act, if you know or have reason to believe, at any
time prior to visa issuance, that a petitioner who files an approved petition has
been convicted of an offense against a minor listed in paragraph (a) and that
USCIS has not considered the conviction for purposes of determining the
petitioners eligibility to file, you must send the approved petition to USCIS for
a determination of its validity. In the case of a petition that was approved at
post following the necessary USCIS criminal history record search, you must
consider the petition not clearly approvable, and forward it, with all
supporting documents, to the appropriate USCIS office abroad with jurisdiction
over that location. If Form I-130, Petition for Alien Relative, approval occurred
at a USCIS regional office abroad, you should return the petition directly to that
office for possible revocation. Otherwise, petitions approved by USCIS should
be returned through the National Visa Center (NVC) for possible revocation.
The basis for the return would be that information indicating that the petitioner
was ineligible to file apparently was not known at the time the petition was
approved. You would not disclose the conviction information to the visa
applicant in cases in which the petition was returned because of the Adam
Walsh Act.
c. The Adam Walsh Acts ban against the filing of a petition for family-based
immigrant and K-nonimmigrant visa status by an individual who has been
convicted of a specified offense against a minor does not apply if the Secretary
of Homeland Security exercises his or her sole and unreviewable discretionary
authority and determines that the individual poses no risk to a beneficiary. You
may encounter cases in which the criminal history information reported to post
by USCIS relates to a conviction for a crime that is one of the specified offenses
against a minor listed in paragraph a of this section. Provided that the petition


reflects that there has been a no-risk determination by the Secretary of
Homeland Security and you intend to approve the visa application, you should
not forward the petition to USCIS based on the conviction in that instance, but
instead consider it to have been properly filed under the Adam Walsh Act, while
nonetheless informing the visa applicant of the conviction during the interview
if compelling circumstances affecting the health and safety of a beneficiary (see
9 FAM 42.63 N3.1, paragraph a, exists).




9 FAM 42.63
PROCEDURAL NOTES
(CT:VISA-1919; 10-04-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.63 PN1 PACKET SYSTEM

9 FAM 42.63 PN1.1 Importance of Standard
Procedures
(CT:VISA-1919; 10-04-2012)
a. Consistency and standardization are important to the immigrant visa (IV)
process. In the past, the Department used standardized mailings in the IV
process, known as the packet system. More recently, electronic resources
have provided the ability to address a wider range of questions.
b. Consular managers must remember that the IV process remains confusing to
many applicants, especially those who do not have regular access to the
Internet.

9 FAM 42.63 PN1.2 General Guidelines
(CT:VISA-1919; 10-04-2012)
a. Inquiries regarding immigration:
(1) ) The following standardized mailings are no longer used:
(a) Packet 1
(b) Packet 2
(c) Packet 2a
(2) ) Respond to general inquiries regarding immigration by sending
the appropriate information sheets. This includes questions about:
(a) General immigration to the United States;
(b) Specific family-based immigration programs; and
(c) Specific employment-based immigration programs.
(3) Do not retain any record of incoming inquiries on these topics in post
correspondence files.
(4) Do not retain any record of response to these topics in post


correspondence files.
b. Packets for Immigrant Visa Processing. Three standardized instruction
packages are now for IV processing:
(1) Instruction Package for Immigrant Visa Applicants (previously known as
Packet 3);
(2) Appointment Package for Immigrant Visa Applicants (previously known as
Packet 4); and
(3) Follow-Up Instruction Package for Immigrant Visa Applicants (previously
known as Packet 4a).
c. Combining packets
(1) When combining packets, you must strictly observe the regulations
defining:
(a) entitled to immigrant classification;
(b) documentarily qualified, and
(c) priority date.
(2) Use common sense when the situation warrants. 9 FAM 42.52 and 9 FAM
42.53 contain additional guidance.
For example, you know that the intending immigrant is the spouse of a
U.S. citizen. In this case, you should provide any information requested by
the applicant or his or her agent(s). In this situation, you must be careful
to remind inquirers of the importance of pursuing the IV process in a timely
manner to avoid expired documentation.


9 FAM 42.63 PN2 IMMIGRANT VISA PETITIONS
APPROVED BY DEPARTMENT OF HOMELAND
SECURITY (DHS)
(CT:VISA-1919; 10-04-2012)
a. The National Visa Center (NVC) receives all IV petitions that were:
(1) Approved by the U.S. Department of Homeland Security, and where
(2) ) The principal applicant will apply overseas at a U.S. embassy or
other diplomatic post.
b. NVC takes the following steps upon receiving a petition (see 9 FAM 42.63 PN5):
(1) NVC enters the petition data into the Immigrant Visa Information System
(IVIS);
(2) If the petition is active (immediate relatives and those with priority dates
that fall within the qualifying dates set by CA/VO/F/I), NVC sends the


following forms to the applicant and to the petitioner:
(a) The Agent Choice Letter (ACL);
(b) Form DS-3032; and
(c) Instructions for accessing Form DS-261.
(3) If the petition is active (oversubscribed categories with noncurrent priority
dates), the NVC will send the applicants the "Notice of Registration as an
Intending Immigrant" letter.
(a) This letter confirms receipt of the petition at NVC and notifies the
applicant of his or her priority date.
(b) The letter was previously known as Packet 3a.
NOTE: If an email address is available, NVC sends all communications via
email instead of a physical letter being mailed. This is true for all
informational packets and checklist letters during document collection.


9 FAM 42.63 PN3 PROCESSING APPLICANTS
WHEN CASE BECOMES CURRENT

9 FAM 42.63 PN3.1 Form DS-3032, Choice of Address
and Agent for Immigrant Visa Applicants and Form DS-
261, Online Choice of Address and Agent for Immigrant
Visa Applicants
(CT:VISA-1919; 10-04-2012)
a. These forms allow the applicant to designate the agent for his or her case.
b. "Agent" means the person who will receive mailings from NVC.
(1) ) The agent may be the petition, an attorney, and friend, or
a nongovernmental or community-based organization.
(2) ) The agent cannot sign documents on behalf of the applicant.
(3) ) The agent can assist with fee payments and document collection.
(4) ) The applicant may choose to designate him or herself as the agent.
c. The applicant's file will be held at NVC until the signed Form DS-3032 is
returned or Form DS-261 is electronically signed and submitted. If neither is
returned within 1 year and a visa number is available, the NVC will begin the
case termination process. (See 9 FAM 42.83 for further details.)

9 FAM 42.63 PN3.2 When Form DS-3032, Choice of


Address and Agent for Immigrant Visa Applicants, or
Form DS-261, Online Choice of Address and Agent for
Immigrant Visa Applicants, Is Not Required
(CT:VISA-1919; 10-04-2012)
No Form DS-3032, Choice of Address and Agent for Immigrant Visa Applicants, or
Form DS-261, Online Choice of Address and Agent for Immigrant Visa Applicants,
is required if:
(1) ) The alien is self-petitioning; or
(2) An alien is a child and is being adopted.

9 FAM 42.63 PN3.3 Responsibility of the Petitioner
(CT:VISA-1919; 10-04-2012)
a. When the NVC sends Form DS-3032, Choice of Address and Agent for
Immigrant Visa Applicants, or instructions for accessing Form DS-261, Online
Choice of Address and Agent for Immigrant Visa Applicants, to the applicant,
the NVC also will send an information packet to the petitioner, including a copy
of Form DS-3032 or Form DS-261 access instructions to notify the petitioner
that it has been sent. In some visa classifications, the petitioner must pay an
Affidavit of Support (AOS) processing fee. When such a case becomes active,
the initial instruction packet (see 9 FAM 42.63 PN 2) includes the following
additional items:
(1) ) The AOS fee bill;
(2) Instructions describing how and where to pay the fee; and
(3) A copy of Form DS-3032 or instructions for accessing Form DS-261.
b. The NVC also notifies the petitioner that no further action can be taken until the
fee is paid.
c. Upon payment of the fee, the petitioner is instructed to complete the AOS form
and return it to the NVC (see 9 FAM 42.63 PN3.4).

9 FAM 42.63 PN3.4 Returning the Affidavit of Support
(AOS)
(CT:VISA-1919; 10-04-2012)
a. If the AOS fee is paid by mail, NVC mails the Petitioner Packet instructions to
the petitioner, which directs them to the Web site ImmigrantVisas.state.gov.
b. If the AOS fee is paid online, the agent is provided with this information online
once the fee payment has been confirmed. No mailing is necessary.
c. The information provided in either case instructs the petitioner to go to


http://immigrantvisas.state.gov and download one of the Affidavit of Support
(AOS) Forms (I-864, I-864EZ, or I-864W). These instructions also direct the
petitioner to complete the form and return it to NVC.


9 FAM 42.63 PN4 SENDING INSTRUCTIONS FOR
IMMIGRANT VISA APPLICANTS
(CT:VISA-1919; 10-04-2012)
a. Once an agent has been designated (see 9 FAM 42.63 PN3.1) or when the ACL
is not required (see 9 FAM 42.63 PN3.2), NVC sends the IV application fee bill
for each applicant to the designated agent.
b. The IV fee bill letter instructs the applicant how and where to pay the IV fee
bill.
c. If the IV fee is paid by mail, NVC will mail the Instruction Package for
Immigrant Visa Applicants to the designated agent.
d. If the IV fee(s) are paid online, the agent will be provided with information
online once the fee payment has been confirmed. No mailing is necessary.
e. The information provided to the agent includes instructions on where to go on
the Internet to fill out and download Form DS-230, Application for Immigrant
Visa and Alien Registration, or Form DS-260, Online Application for Immigrant
Visa and Alien Registration.

9 FAM 42.63 PN4.1 Cases Processed at Posts with
Document Review Support and Scheduling Provided by
National Visa Center (NVC)
(CT:VISA-1919; 10-04-2012)
a. For posts at which NVC reviews local documents and schedules IV
appointments, it will instruct the agent or applicant to return the completed
forms to the NVC after paying the processing fees for visa application.
b. This process is called "appointment post processing."
c. When the file is complete, NVC will schedule an appointment with a consular
officer and send the IV appointment letter to every valid address associated
with the case record. NVC will then forward the case file and electronic record
to the post. NVC will work directly with posts to ensure that posts scheduling
preferences are implemented.
d. NVC performs the appointment post processing for all IV issuing posts (one
post Guangzhou, China uses this process on a limited type of IV cases
which are processed electronically; for all other cases being processed in China,
NVC will collect all the documents but not schedule the visa interview).


9 FAM 42.63 PN4.1-1 Reviewing the Files
(CT:VISA-1919; 10-04-2012)
a. NVC will review the following forms (when applicable) for each case file:
(1) Form DS-230, Application for Immigrant Visa and Alien Registration;
(2) Form DS-260, Online Application for Immigrant Visa and Alien Registration;
and
(3) Form I-864, Affidavit of Support Under Section 213A of the Act.
(4) NVC also collects civil documents and police certificates.
b. Depending on the post, NVC will follow one of two possible paths:
(1) Collect paper documents and forms by mail. NVC requires original
documents (or certified copies from the issuing authority) for all civil
documents.
(2) Collect documents and forms electronically.
(a) In electronic (paperless) processing, the petitioner and agent email
scanned images of the forms and documents to a designated email
box at NVC.
(b) NVC will scan the original petition and documentation provided by
USCIS.
(c) NVC will review the documentation for accuracy and attach the images
provided by the petitioner and agent to the electronic case file.
(d) The appointment letter contains explicit instructions explaining that
the applicant must bring the paper documents and forms to the visa
interview.
(e) Post will have access to the information once the case has been
scheduled for a visa interview. The IVIS record will also be placed in
the electronic case file for downloading into the automated immigrant
visa (IV) system.

9 FAM 42.63 PN4.1-2 Incomplete Cases or Cases Lacking
Documentation
(CT:VISA-1919; 10-04-2012)
a. If the case file is incomplete or lacks proper documentation, the NVC will send a
checklist to the petitioner or agent indicating what changes are needed. The
petitioner or agent will be told to return the required information to the NVC.
b. After two reviews by the NVC, the file will be scheduled for an interview, even if
it still contains errors or omissions, provided that at a minimum:
(1) ) The petitioner has submitted a signed Form I-864, Affidavit of Support


Under Section 213A of the Act;
(2) All traveling applicants have submitted Form DS-230, Application for
Immigrant Visa and Alien Registration, or Form DS-260, Online Application
for Immigrant Visa and Alien Registration; and
(3) All required police certificates have been provided.
Note: If an I-864W is required, NVC will request it one time. If the form is not
submitted, the case will be scheduled for an interview and the applicant should
be required to complete the form at the time of the interview.
c. If the petitioner or agent does not return the documents within 1 year and a
visa is available, the NVC will initiate the administrative process for post to
begin case termination.
d. Under specific circumstances approved by VO, NVC will not schedule a visa
interview until all requested documentation has been provided. NVC refers to
this as the Fully Qualified process.
e. A case that is required to be Fully Qualified will be reviewed for the following:
(1) All required fees are paid.
(2) All AOS forms are submitted and void of critical errors.
(3) All Immigrant Visa Application forms are received and void of critical errors
(4) All civil documents are received and meet the guidelines in the Visa
Reciprocity and Country Documents Finder.
(5) Any required supporting financial evidence from all sponsors areis received.
(6) ) The only exception to these rules is if an applicant informs NVC they
are unable to obtain certain civil documents.
f. For cases that are required to be Fully Qualified, there is no limit to the number
of requests for information that are sent. NVC will continue to send requests for
information until all necessary fees, forms, and documents are received and
accurate.


9 FAM 42.63 PN5 INSTRUCTION PACKAGE FOR
IMMIGRANT VISA APPLICANTS SENT PROMPTLY
WHEN QUALIFYING DATE REACHED
(CT:VISA-1919; 10-04-2012)
a. The National Visa Center (NVC) is responsible for the dispatch of virtually all
instruction packets. The instruction packet for immigrant visa (IV) applicants
(formerly known as Packet 3 ) is described below.
b. It is vitally important to promptly mail or otherwise provide the instruction
package for immigrant visa applicants to applicants who are:


(1) Entitled to immigrant status; and
(2) Whose priority dates are within the qualifying dates established by the
Department.
c. Whenever it is not possible to provide the instruction package in a timely
manner, the post or NVC must submit a report, by memorandum, to the
Department outlining the reasons it is unable to do so.

9 FAM 42.63 PN5.1 Records Updated to Reflect
Information Provided
(CT:VISA-1919; 10-04-2012)
a. If mailed from post, the automated Immigrant Visa Overseas (IVO) system will
automatically record the date that post prints the Instruction Package for
Immigrant Visa Applicants cover letter.
(1) Posts must mail this letter and attachments are mailed as soon as possible
after printing.
(2) If you provide later copies of the Instruction Package for Immigrant Visa
Applicants to the applicant, make a record in the comments field of the IV
application to reflect this fact.
b. The IVIS system used at NVC will also record the date the Instruction Package
for Immigrant Visa Applicants is printed or downloaded from the Internet after
the IV fees are paid (see 9 FAM 42.63 PN4).

9 FAM 42.63 PN5.1-1 Aliens Not Subject to Numerical
Limitation or for Whom Visa Number Available
(CT:VISA-1919; 10-04-2012)
a. The Instruction Package for Immigrant Visa (IV) Applicants from post consists
of:
(1) ) The cover letter for the instruction package (generated by the
IVO system);
(2) Form DS-2001, Notification of Applicant Readiness;
(3) Form I-864, Affidavit of Support Under Section 213A of the Act, and
instructions, or Form I-134, Affidavit of Support, as appropriate;
(4) Form DS-230, Application for Immigrant Visa and Alien Registration (one
for each applicant), or instructions for accessing Form DS-260, Online
Application for Immigrant Visa and Alien Registration; and
(5) Supplemental information sheets, as appropriate, on police certificate and
civil document availability by country.
b. You may also include a local nonstandard form covering other post-specific


matters not covered by material above.
c. For petitions filed at post, you must send the instruction package for IV
applicants immediately to applicants, including immediate relatives, who have
provided evidence of entitlement to immigrant classification. You should verify
that the applicant's priority date (if subject to a numerical limitation) is within
the qualifying date established by the Department. Evidence of entitlement to
immigrant classification includes:
(1) Form I-797, Notice of Action;
(2) A petition approved at post;
(3) Proof of derivative status; or
(4) Proof of entitlement to returning resident status.
You should also provide the Instruction Package to immigrant visa applicants
and others upon request, regardless of whether the inquirer is entitled to
immigrant classification, stressing that they should take no action unless
directed by the NVC, a visa processing post, or their agent.
d. As noted in 9 FAM 42.63 PN4, the National Visa Center (NVC) will, when the
petition is filed in the United States:
(1) Send the Instruction Package for Immigrant Visa Applicants to the agent (if
the IV fee is paid by mail).
(2) If the fees are paid online, the agent will be provided with this information
online after the fee payment has been confirmed. No mailing is necessary.
(3) ) The Instruction Package for Immigrant Visa Applicants that is provided
by NVC (generated by the Immigrant Visa Information System (IVIS))
informs the agent to go to the Internet for additional information on what
actions are needed next. The URL provided is
http://immigrantvisas.state.gov.
e. Upon return of Form DS-230, Application for Immigrant Visa and Alien
Registration, or electronic submission of Form DS-260, Online Application for
Immigrant Visa and Alien Registration:
(1) ) You must initiate all appropriate clearances called for in 9 FAM
Appendix GClearance Procedures.
(2) ) You must then file Form DS-230 in your post's immigrant A-Z files with
the principal applicant's petition and other documents, and must hold the
form until the applicant's formal immigrant visa interview with a consular
officer.
(3) At the time of the applicant's interview, you will attach Form DS-230 to
make the complete application form, unless the applicant submitted Form
DS-260, in which case no copy of the application will be placed in the A-Z
files.


(4) ) You must send additional Forms DS-230 or instructions for accessing
Form DS-260 to derivative applicants along with the interview appointment
letter


and medical forms. (See 9 FAM 42.63 PN12, paragraph c.)
(5) Also, see 9 FAM 42.63 PN11 for additional discussion of determination that
an applicant is documentarily qualified.)
f. The process taken at NVC for qualifying a case and scheduling an interview is
described in 9 FAM 42.63 PN4.1-1.

9 FAM 42.63 PN5.1-2 Presenting Affidavits of Support for
Overcoming Public Charge Provisions
(CT:VISA-1919; 10-04-2012)
a. For cases in which INA 213(A) applies, all applicants must submit a properly
completed Form I-864, Affidavit of Support Under Section 213A of the Act, and
supporting documents (see 9 FAM 40.41 N3.2).
b. For cases in which INA 213(A) does not apply (for example, nonimmigrant visas
such as K-1 fianc(e) visas), applicants may submit Form I-134, Affidavit of
Support, or may submit alternative forms of evidence to overcome the public
charge provisions of the law.

9 FAM 42.63 PN5.2 Acknowledging Receipt of
Noncurrent Petition
(CT:VISA-1919; 10-04-2012)
a. When the NVC receives an approved petition in a category for which immigrant
visa (IV) numbers are unavailable, the NVC must send the Notice of
Registration as Intending Immigrant (formerly Packet 3a), to the applicant
confirming receipt of the petition and explaining further processing steps, as
appropriate.
b. Under the centralized IV process, posts will not receive petitions from the NVC
that do not have a visa available.
c. In the case of any applicant in an oversubscribed category, the NVC must check
the petition to determine whether the applicant may benefit from the foreign-
state chargeability of the spouse under INA 202(b). If the spouse's birthplace
is not provided in the documents available, posts must include Form DS-230,
Application for Immigrant Visa and Alien Registration, or instruction for
accessing the online Form DS-260, Online Application for Immigrant Visa and
Alien Registration, with the letter of confirmation described in paragraph a of
this section.


9 FAM 42.63 PN6 NOTICE OF CONDITIONAL
STATUS


(CT:VISA-1919; 10-04-2012)
a. Aliens normally entitled to IR-1, IR-2, F21, F22, F23, F24, F25, F31, F32, or
F33 classification will be granted conditional status (C21, C22, CX1, CX2,
CX3, C24, or C25, respectively) at the time of visa issuance if:
(1) ) The basis for immigration is a marriage to a petitioner, which was
(2) Entered into less than 2 years prior to the applicants admission to the
United States as an immigrant. (See 9 FAM 42.73 Procedural Notes.)
b. All information packages for applicants or information within
ImmigrantVisas.state.gov in these categories must include a notice of
conditional status. The text of the notice is to be followed verbatim:
If, at the time of admission to the United States you will not have
celebrated the second anniversary of your marriage, which is the basis of
your immigrant status, you are subject to the provisions of section 216 of
the Immigration and Nationality Act. Under the provision, you will be
granted conditional permanent residence by an officer of the Immigration
and Naturalization Service at the time of your admission to the United
States. As a result, you and your spouse must file a joint petition with
the Immigration and Naturalization Service to have the conditional status
removed. The petition must be filed within the 90-day period
immediately preceding the second anniversary of the date you were
granted conditional permanent resident status. If a petition to remove
the conditional basis of your status is not filed within this period, your
conditional permanent residence status will be terminated automatically
and you will be subject to deportation from the United States.


9 FAM 42.63 PN7 UNDELIVERABLE
CORRESPONDENCE
(CT:VISA-1919; 10-04-2012)
a. Immigrant visa (IV) petitions related to undeliverable correspondence, must
be kept in the file until the post receives information which would reflect the
status of petition and/or the beneficiary.
(1) ) This is particularly important in cases in which instruction packages for
IV applicants cannot be delivered.
(2) ) You should add a comment in the IVO system documenting the fact
that correspondence was returned undeliverable.
b. At NVC, the electronic case record will be updated to document the fact that:
(1) Physical correspondence was returned undeliverable, but the physical
letter will be destroyed after the update.
(2) If the Postal Service provides an updated address on the returned mail,


NVC will update the address in IVIS and resend the letter.
(3) An email was "undeliverable," then the letter will be resent via postal
service.


9 FAM 42.63 PN8 CLEARANCE PROCESSING
(CT:VISA-1919; 10-04-2012)
a. The Department has eliminated routine post-to-post (Visas Alpha) clearance
requests for all posts. However, it still requires clearance requests when:
(1) A Consular Lookout and Support System (CLASS) check indicates
derogatory information is on file at post; or
(2) Visa Reciprocity and Country Documents Finder specifically requires a
clearance of applicants from that country.
b. In every case, you must make an entry in the automated IV system to show
the date and type of background check initiated and the date and result of
completion.


9 FAM 42.63 PN9 DETERMINING ALIEN
DOCUMENTARILY QUALIFIED
(CT:VISA-1919; 10-04-2012)
a. For petitions filed at post, an applicant is considered to be documentarily
qualified after completing the two following steps:
(1) ) The alien has returned Form DS-2001, Notification of Applicant
Readiness, and declared that he or she has obtained all of the required
documents, or has otherwise notified post that he or she is prepared for
interview; and
(2) ) The post has completed all required clearance procedures, or has reason
to believe that they will be completed before a visa number will be available
for the applicant. (See 9 FAM 42.52 N3.6 regarding the reporting of
documentarily-qualified applicants.)
b. For petitions processed through the National Visa Center (NVC), an applicant is
considered to be documentarily qualified after completing the four following
steps:
(1) Paid all required fees;
(2) Completed and returned Form DS-230, Application for Immigrant Visa and
Alien Registration, or Form DS-260, Online Application for Immigrant Visa
and Alien Registration, for each traveling applicant;
(3) Completed and returned a properly completed Form I-864, Affidavit of


Support Under Section 213A of the Act, and supporting documents (see 9


FAM 40.41 N3.2) for cases in which INA 212(A) applies; and
(4) ) Returned all required police certificates for each traveling applicant.

9 FAM 42.63 PN9.1 Use of Form DS-2001, Notification
of Applicant Readiness, Optional
(CT:VISA-1919; 10-04-2012)
a. The use of Form DS-2001, Notification of Applicant Readiness, by the applicant
is optional.
(1) ) This form is provided as a simple way for applicants to communicate
with post by mail or fax.
(2) ) You should accept any reasonable notification from the applicant, signed
or unsigned, in determining qualification for further processing.
(3) Electronic means of notification are equally acceptable.
(4) ) You should consider cases received from the National Visa Center that
are not classified as expedited cases to have received notice of the
applicants readiness.
b. NVC does not collect or use Form DS-2001, Notification of Applicant Readiness,
as part of the qualification process. Please refer to 9 FAM 42.63 PN4.1-1 for
more information.

9 FAM 42.63 PN9.2 Flexibility in Determining Whether
Applicant Is Documentarily Qualified

9 FAM 42.63 PN9.2-1 Means of Establishing Whether Applicant
Is "Documentarily Qualified" for Cases where Petitions Were
Filed at Post
(CT:VISA-1919; 10-04-2012)
a. The concept of documentarily qualified is important in IV processing,
particularly in numerically controlled visa categories. Different operating
environments may call for flexibility in processes used to determine whether an
applicant meets this standard, but any process used to determine that an
applicant is documentarily qualified must:
(1) Be used consistently throughout the IV processing district;
(2) Have the prior approval of the visa office (VO) if prescreening procedures
will be used; and
(3) Be rigorously monitored to ensure you meet the goals of fairness,
efficiency and adequate internal controls.


9 FAM 42.63 PN9.2-2 Individual Declaration Versus
Prescreening for Cases where Petitions Were Filed at Post
(CT:VISA-1598; 10-28-2010)
a. In many countries, you may determine that self-attestation by visa applicants is
adequate evidence of being documentarily qualified for cases in which the
petitions were filed at post. In other words, by returning Form DS-2001,
Notification of Applicant Readiness, its electronic equivalent, or other
communication with post, the applicant may declare that he or she is
documentarily qualified and prepared for interview.
b. In other countries, consular managers may determine that a prescreening
mechanism of some sort is appropriate. In considering the implementation of a
prescreening mechanism, consular managers should address the following
questions:
(1) How high is the overall INA 221(g) refusal rate in immigrant visa (IV)
processing? To what extent could this rate be reduced by more rigorous
prior review of the documents submitted in connection with the application
to ensure that the applicant really is "documentarily qualified?"
(2) ) Will implementation of a prescreening mechanism reduce the number
of times the applicants enter the consular section, thus improving both
customer service and security?
(3) Prescreening will add time at the beginning of the immigrant visa (IV)
process prior to formal application and interview. How does the length of
this additional prescreening time compare to the average amount of time
and effort expended to resolve INA 221(g) and other refusals? (Note that
the fact that prescreening takes more time than resolving a refusal is not
necessarily an argument against implementing this type of strategy.
Added time taken up with mailing documents back and forth is arguably
less burdensome on both post and the applicant than time spent waiting in
line and in waiting rooms, often in a city other than the place of normal
residence.)
(4) If post has processing backlogs, does time spent processing unqualified
applicants delay processing for qualified cases?
(5) At lower-volume posts, do consular managers find that the small number
of cases makes it difficult to realize economies of scale? Would pre-
screening streamline the process?
(6) In the immigrant visa process, the burden of preparing for interview rests
primarily upon the applicant. In considering a prescreening process, is
post making an effort to ensure that post does not do work on behalf of the
applicant?
(7) What is the real cost to the U.S. Government of any additional screening
process?


9 FAM 42.63 PN9.2-3 Immigrant Visa (IV) Prescreening
Strategies
(CT:VISA-1919; 10-04-2012)
a. When immigrant visa (IV) prescreening appears justified, you should employ
one of three mechanisms:
(1) Document review and interview scheduling by the National Visa Center;
(2) Document review by post prior to interview for cases in which petitions
were filed at post; or
(3) Document review/case preparation through a travel agency or voluntary
agency program for cases in which petitions were filed at post.
b. Regardless of which mechanism you use, you must coordinate prescreening
programs with the Visa Office (CA/VO) and should not begin without prior
authorization.
(1) Among other things, CA/VO will require a written Standard Operating
Procedure with details on internal controls and exceptions handling and the
opportunity to review any new forms or information sheets that you plan to
utilize.
(2) ) You should bear in mind regulations concerning use and approval
of nonstandard forms.
(a) For instance, the Paperwork Reduction Act requires Office of
Management and Budget (OMB) approval before a U.S. Government
agency may employ a new form to collect information.
(b) This requirement includes forms for local use by overseas consular
sections.


9 FAM 42.63 PN10 POST DOCUMENT REVIEW
PRIOR TO INTERVIEW
(CT:VISA-1919; 10-04-2012)
a. Document review systems ask applicants to obtain documents required for
immigrant visa (IV) interview and then submit them by mail, courier, or drop
box to post for review.
(1) If at all possible, applicants should not appear in person with these
documents until actually scheduled for interview.
(2) Under such a procedure, applicants are considered "documentarily
qualified" only when they have demonstrated that they have in their
possession all of the documents required.
b. It is important in such a prescreening procedure that detailed standard


operating procedures (SOPs) provide guidance to Locally Employed Staff (LE
Staff) screeners to limit misunderstandings and accusations of impropriety.
Specifically, the SOP must provide:
(1) Written standards for documents submitted;
(2) Escalation procedures in cases when, despite repeated appearances at the
consular section, the applicant remains unprepared;
(3) Procedures for handling multiple secondary documents submitted in lieu of
requested primary documents;
(4) Procedures for documenting contacts with applicants or their agents as the
documents are submitted and reviewed. These logging procedures should
be as terse as meaningfully possible and should utilize the comments
feature in the IVO system; and
(5) Provisions for regular officer oversight of the process, including regular
detailed audits of individual cases and questions to applicants at time of
interview concerning their experience with the prescreening process.


9 FAM 42.63 PN11 TRAVEL OR VOLUNTARY
AGENCY PROGRAMS
(CT:VISA-1919; 10-04-2012)
a. The NVC handles scheduling, preprocessing, and document review for almost all
IV-issuing posts. Some posts, however, may still be receiving IV case
preparation assistance through formal programs with voluntary agencies or
travel agents.
(1) ) You may find that voluntary agencies with experience working in the
area of refugee resettlement have particular expertise in this area.
(2) Because of the greater importance of the IV process, and the involvement
in most cases of U.S. citizen family members or employers, oversight and
control is extremely important.
b. In overseeing such a program, you must keep several points in mind:
(1) ) You must make it very clear to applicants and their agents that we do
not endorse or require participation in any private-screening program.
(2) ) You must take care to ensure that applications received through travel or
voluntary agencies do not receive preferential treatment, either in terms of
expedited processing or degree of scrutiny exercised;
(3) ) You may provide an information sheet describing the availability of
such services.
(a) This information sheet must include a statement stressing that seeking
such services is entirely voluntary and reiterating the fact that the


Department of State does not endorse a particular program.
(b) This information sheet must be submitted to CA/VO for approval prior
to initiating such a program.
(4) ) You must not provide a particular service provider with
preferential treatment.
(a) You should give any service provider, whether non- or for-profit, which
requests to participate in such a program, identical access to the
potential customer pool, subject to review by posts fraud prevention
manager.
(b) You must offer any training, monitoring, or feedback provided to all
service providers equally.


9 FAM 42.63 PN12 IMMIGRANT VISA (IV)
APPOINTMENT LETTER
(CT:VISA-1919; 10-04-2012)
a. The Immigrant Visa Appointment Letter provides instructions for IV applicants
to make formal application for an immigrant visa.
(1) ) This letter is generated automatically by the immigrant visa (IV) system
or by the National Visa Center (NVC).
(2) ) The instructions in this letter and the links that it provides advise
applicants about preparations for the medical examination, obtaining
original documentation, providing photographs, and reviewing visa
guidelines.
b. The post or the NVC must send the Immigrant Visa Appointment Letter to
aliens who have been determined to be documentarily qualified and for whom
an appointment has been scheduled. Posts must not schedule appointments for
applicants chargeable to a numerical limitation prior to receipt of allocations of
visa numbers from the Department.
c. NOTE: If the principal applicant was instructed to complete Form DS-260,
Online Application for Immigrant Visa and Alien Registration, all derivatives are
also required to be instructed to complete Form DS-260. There is an option to
complete and/or modify Form DS-260 for derivative applicants associated with
the online file for the principal.


9 FAM 42.63 PN13 FOLLOW UP AND
NOTIFICATION OF POSSIBLE TERMINATION OF
REGISTRATION


(CT:VISA-1919; 10-04-2012)
a. To comply with the provisions of INA 203(g) (see 9 FAM 42.83) in cases in
which applicants have not responded to the instruction package for immigrant
visa applicants within 1 year, you must send a follow-up package to include
notification of possible termination of registration. In the case of an applicant
whose priority date has not been reached on the 1-year anniversary, you
should send this follow-up package when the applicant's priority date is
reached.
b. You may choose to initiate the termination process by mailing only the notice of
possible termination of registration, a form letter automatically generated by
the automated immigrant visa processing system.
(1) If the applicant responds requesting that registration not be terminated,
then the follow-up instruction package for immigrant visa (IV) applicants
outlined below should be sent.
(2) Alternatively, you may choose to send the instruction package as an initial
mailing.
(3) ) The follow-up package consists of:
(a) Notice of Possible Termination of Registration;
(b) Form DS-2001, Notification of Applicant Readiness; and
(c) Form DS-230, Application for Immigrant Visa and Alien Registration, or
instructions for accessing Form DS-260, Online Application for
Immigrant Visa and Alien Registration.
c. All cases held at the NVC will have notifications of termination mailed directly to
the applicant. The follow-up package mailed from NVC consists of:
(1) Notice of Possible Termination of Registration; and
(2) A response request containing the following:
(a) Yes, I wish to pursue my immigrant visa application, please send me
information on applying for my immigrant visa. I understand I will
have to resubmit all required fees and documents in order to continue
the immigrant visa processor
(b) No, I do not want to pursue my immigrant visa application for one of
the following reasons:
(i) I have adjusted status (please send a copy of both sides of your
alien registration card);
(ii) I have received an immigrant visa through another petition and
am now a permanent resident (please send us a copy of both
sides of your alien registration card);
(iii) I am no longer interested in immigrating to the United States; or


(iv) Other (please explain).


9 FAM 42.63 PN14 RESPONSE TO FOLLOW UP
AND NOTIFICATION OF POSSIBLE TERMINATION
OF REGISTRATION

9 FAM 42.63 PN14.1 Applicant Advises Documentarily
Qualified
(CT:VISA-1919; 10-04-2012)
a. If the applicants response to the follow-up package is to return Form DS-2001,
Notification of Applicant Readiness, and either Form DS-230, Application for
Immigrant Visa and Alien Registration, or Form DS-260, Online Application for
Immigrant Visa and Alien Registration, you must process the applicant in the
same manner as any other applicant who responds to the instruction package
for immigrant visa (IV) applicants (i.e., background checks will be conducted, a
number will be requested, a medical exam will be scheduled, and the applicant
will be sent an appointment letter).
b. If the applicants response to the follow-up package is sent to NVC, NVC will
start the process of collecting forms and fees again as outlined in 9 FAM 42.63
PN4.

9 FAM 42.63 PN14.2 Applicant Fails to Respond
(CT:VISA-1598; 10-28-2010)
If the applicant does not comply with the follow-up instructions within 1 year and a
visa is available, the consular officer or NVC must initiate proceedings to terminate
the aliens IV registration. (See 9 FAM 42.83.)






9 FAM 42.63 EXHIBIT I
SAMPLE NOTIFICATON TO PETITIONER
(CT:VISA-945; 04-10-2008)
(Office of Origin: CA/VO/L/R)


[Date]
[Petitioner name]
[Last known address]
Dear :
I am writing to notify you that, during a visa interview on [date], we
disclosed the following information to , a beneficiary
of the petition for [indicate type] status which you filed on [date]:
[List the information that was disclosed to the beneficiary.]
[Only if applicable] We also provided a copy of the attached documents at
that time.
This disclosure of information took place on the basis of [health and safety
considerations for beneficiaries in light of the information referenced above].
Sincerely,


[Name]
[Title]






9 FAM 42.64
PASSPORT REQUIREMENTS
(CT:VISA-962; 05-23-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.64 RELATED STATUTORY
PROVISIONS
(CT:VISA-962; 05-23-2008)
See INA 101(a)(30) (8 U.S.C. 1101(a)(30)), INA 222(b) (8 U.S.C. 1202(b)),
in part.

INA 101(a)(30)
(30) The term passport means any travel document issued by
competent authority showing the bearers origin, identity, and
nationality if any, which is valid for the entry of the bearer into a
foreign country.

INA 222(b)
b. Every alien applying for an immigrant visa shall present a valid unexpired
passport or other suitable travel document, or document of identity and
nationality, if such document is required under the regulations issued by
the Secretary of State.


9 FAM 42.64 RELATED REGULATORY
PROVISIONS
(CT:VISA-962; 05-23-2008)
See 22 CFR 42.64






9 FAM 42.64
NOTES
(CT:VISA-1730; 10-05-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.64 N1 INTERPRETATION OF
COMPETENT AUTHORITY
(TL:VISA-3; 08-30-1987)

See 9 FAM 41.104 N1.


9 FAM 42.64 N2 EFFECT OF ISSUING
AUTHORITY RESTRICTIONS ON USE OF
PASSPORTS

9 FAM 42.64 N2.1 Application Made Within Country
of Passport Issuance
(CT:VISA-1072; 10-15-2008)

If an applicant for an immigrant visa (IV) presents a valid passport in the
country where it was issued, and it is endorsed as not being valid for travel
to the United States, or an endorsement is needed to authorize such travel
and this endorsement is lacking, the consular officer shall not issue a visa
until the restricting endorsement has been removed from, or approving
endorsement has been placed on, the passport by the appropriate
authorities or unless the passport requirement has been waived under 22
CFR 42.2. The reason for this is two-fold:

(1) No useful purpose would be served in issuing a visa to an applicant
who would, in effect, be forbidden to depart for the purpose of
using that visa; and

(2) Issuance of a visa in such circumstances could be regarded as an
attempt to circumvent the laws or regulations of the country in
which the post is located.




9 FAM 42.64 N2.2 Application Made Outside
Country of Passport Issuance
(CT:VISA-1730; 10-05-2011)

If an alien with a passport containing a restriction on travel to the United
States applies for a visa in a country other than the one which issued the
passport, if the passport is otherwise valid and the alien is otherwise eligible,
a visa may be issued without regard to the restriction.


9 FAM 42.64 N3 WAIVER OF PASSPORT
REQUIREMENT
(CT:VISA-1072; 10-15-2008)

See 22 CFR 42.2 for the detailed listing of categories of immigrants not
required to present a passport in applying for an immigrant visa (IV).






9 FAM 42.64
PROCEDURAL NOTES
(CT:VISA-1730; 10-05-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.64 PN1 NOTATION OF PASSPORT
WAIVER ON IMMIGRANT VISA (IV) MACHINE
READABLE VISA (MRV) FOIL
(CT:VISA-1071; 10-15-2008)
a. If the passport requirement for an immigrant is waived under 22 CFR
42.2, you should annotate the IV MRV foil to indicate the waiver. This will
help the carriers and the port of entry (POE) determine if an immigrant
without a valid passport is properly documented. For example, if the
passport is waived in the case of an immigrant who is the spouse of a
U.S. citizen, the annotation should read:
PASSPORT NOT REQUIRED PER 22 CFR 42.2(a).
b. If a passport is not required under an individual waiver, the annotation
should contain a reference to 22 CFR 42.2(g) as well as to the date and
number of the specific instruction from the Department. In such a case
the notation on the visa should read:
PASSPORT WAIVED PER 22 CFR 42.2(g) BY DHS and STATE DEPT:
YY STATE [MRN NUMBER] DATED MM/DD/YY.
c. The IV MRV should be placed on Form DS-232, Unrecognized Passport or
Waiver Cases (this form is used in lieu of a passport). If the immigrant
has a travel document (expired or unrecognized passport, for example),
you should attach it to the travel document as described in 9 FAM 41.113
PN2.2, which contains detailed instructions on using Form DS-232.


9 FAM 42.64 PN2 LIMITATION OF VISA
VALIDITY TO MEET PASSPORT VALIDITY
REQUIREMENT
(CT:VISA-1730; 10-05-2011)
If an immigrant is required to present a valid passport, the consular officer
must note whether the aliens passport is valid for at least 60 days beyond




the period of validity of the visa, as required in 22 CFR 42.64(b). Officers
may limit the validity of the visa to less than six months if the passport is
valid for 60 days plus a period sufficient to enable the alien travel to the
United States. If the alien is excepted from the 60-day validity requirement
under 22 CFR 42.64(b), officers may limit the validity of the visa to less than
six months to coincide with the validity of the passport, provided the period
of time will be sufficient for the alien to travel to the United States.






9 FAM 42.65
SUPPORTING DOCUMENTS
(CT:VISA-986; 07-31-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.65 RELATED STATUTORY
PROVISIONS
(CT:VISA-986; 07-31-2008)

See INA 222(b) (8 U.S.C. 1202(b)).

b. Every alien applying for an immigrant visa shall present a valid unexpired
passport or other suitable travel document, or document of identity and
nationality, if such document is required under the regulations issued by
the Secretary of State. The immigrant shall furnish to the consular officer
with his application a copy of a certification by the appropriate police
authorities stating what their records show concerning the immigrant; a
certified copy of any existing prison record, military record, and record of
his birth; and a certified copy of all other records or documents
concerning him or his case which may be required by the consular officer.
The copy of each document so furnished shall be permanently attached to
the application and become a part thereof. In the event that the
immigrant establishes to the satisfaction of the consular officer that any
document or record required by this subsection is unobtainable, the
consular officer may permit the immigrant to submit in lieu of such
document or record other satisfactory evidence of the fact to which such
document or record would, if obtainable, pertain. All immigrant visa
applications shall be reviewed and adjudicated by a consular officer.


9 FAM 42.65 RELATED REGULATORY
PROVISIONS
(CT:VISA-986; 07-31-2008)

See 22 CFR 42.65.






9 FAM 42.65
NOTES
(CT:VISA-1459; 07-30-2010)
(Office of Origin: CA/VO/L/R)


9 FAM 42.65 N1 BASIC DOCUMENT
REQUIREMENTS
(CT:VISA-1459; 07-30-2010)

INA 222(b) (8 U.S.C. 1202(b)) requires that an applicant applying for an
immigrant visa (IV) submit the following documentation, if available:

(1) A valid unexpired passport or other suitable travel document (see 9
FAM 42.2);

(2) A copy of the police certificate for the country of nationality and
country of the alien's residence at the time of visa application in
which the applicant has resided for six months or more;

(3) A copy of police certificates for any other country in which the
applicant has resided for one year or more;

(4) Certified copies of prison records, if applicable;

(5) Certified copies of military records; if applicable;

(6) A certified copy of the birth record;

(7) Other documents establishing relationship to spouse or children, if
applicable; and

(8) Records or documents pertinent to the applicant's identity or visa
classification with respect to visa eligibility.


9 FAM 42.65 N2 AVAILABILITY OF
SUPPORTING DOCUMENTS
(TL:VISA-720; 03-10-2005)




For information regarding the availability of documents, (see Visa Reciprocity
and Country Documents Finder for the country concerned).


9 FAM 42.65 N3 VALIDITY OF SUPPORTING
DOCUMENTS AND APPLICATION FORM DS-
230, APPLICATION FOR IMMIGRANT VISA
AND ALIEN REGISTRATION, OR FORM DS-
260, ELECTRONIC APPLICATION FOR
IMMIGRANT VISA AND ALIEN REGISTRATION
(CT:VISA-1459; 07-30-2010)

Supporting documents that are subject to change are valid for one year.
This time limitation applies to Form DS-230, Application for Immigrant Visa
and Alien Registration, Form DS-260, Online Application for Immigrant Visa
and Alien Registration, medical examinations, and police certificates from
any country visited or inhabited subsequent to the previous clearances. It
does not apply to a birth certificate or a third country clearance or police
certificates from an area to which the alien has not returned since its
issuance. The affidavit of support (AOS) must be submitted within six
months of its signature by the supporting relative; however, it remains valid
indefinitely. However, because the AOS is based on the Federal Poverty
Guidelines in effect at the time of the visa issuance, it may need to be
updated.


9 FAM 42.65 N4 POLICE CERTIFICATES
(CT:VISA-877; 04-09-2007)

See Visa Reciprocity and Country Documents Finder for availability of police
certificates for individual countries.


9 FAM 42.65 N4.1 From Country of Current
Residence or Country of Nationality
(CT:VISA-914; 11-26-2007)

An applicant must present a police certificate, if obtainable, from his or her
country of current residence and country of nationality, if residence in such
country exceeds six months.




9 FAM 42.65 N4.2 From Country of Previous
Residence
(TL:VISA-185; 02-26-1999)

Police certificates are required from countries of previous residence, if
residence there was for more than one year.


9 FAM 42.65 N5 MILITARY RECORD
(TL:VISA-720; 03-10-2005)

Military records must contain a complete record of the applicant's service
and conduct while in the service. The record must show any convictions of
crime before military tribunals. (See Visa Reciprocity and Country
Documents Finder to determine availability of military records.)


9 FAM 42.65 N6 UNOBTAINABLE DOCUMENTS
(CT:VISA-1076; 10-16-2008)

a. If a required document cannot be procured without causing the applicant
or a family member actual hardship, other than normal delay or
inconvenience, it may be considered unobtainable, and you may permit
the applicant to submit other satisfactory evidence in lieu of such
document or record, per 22 CFR 42.65(d). You should use this authority
sparingly.

b. If you find that a required document is unobtainable, you must complete
and sign Form FS-552, Certificate Regarding Documents Required by 22
CFR 42.65(b) Which Are Unobtainable, and attach to the Form FS-552
secondary evidence and/or a certificate from the appropriate authority, if
obtainable, showing that in this particular case the missing document was
never properly recorded.


9 FAM 42.65 N6.1 Unreliable Documents
(CT:VISA-1459; 07-30-2010)

We recognize that some documents may be obtainable, but may also be
unreliable either because of local corruption, or the ease with which such
documents can be altered or counterfeited. It is, nevertheless, our position,
as well as a legal requirement, that supporting civil and other documents




specified in the application procedures be presented by the applicant if such
documents are available. In some instances, you may detect an altered
document that might trigger a revealing line of inquiry on the applicant's
criminal record. For example, if you find the presentation of a fraudulent
document was an effort to conceal a line of inquiry, which might have
resulted in a proper denial of the visa, an advisory opinion (AO) should be
submitted. On the other hand, if you can establish that presentation of the
document clearly involved misrepresentation of an independent ground of
ineligibility, the application should be immediately refused under INA
212(a)(6)(C)(i) (8 U.S.C. 1182(a)(6)(C)(i)). In this later case, no AO would
need to be submitted.


9 FAM 42.65 N6.2 Member of Armed Forces
Applying Outside Own Country
(CT:VISA-877; 04-09-2007)

In any case involving a member of the armed forces of a foreign country
who applies for an immigrant visa (IV) outside his or her own country, the
aliens military record will be considered unobtainable under 22 CFR
42.65(d) if the applicants government refuses to furnish certified copies.


9 FAM 42.65 N6.3 Member of Armed Forces
Applying in Own Country
(CT:VISA-877; 04-09-2007)

When a member of the armed forces of a foreign country applies for an IV in
his or her own country and the government refuses to furnish the applicant's
military records, you will defer final action on the application in view of the
possible foreign relations implications. You will direct an informal inquiry to
the local authorities to determine their position. Depending on the response
of the local authorities and actions they may take, you will decide whether to
proceed with the consideration of the visa application. If, within a
reasonable time after notification, the local authorities do not take
appropriate action to prevent the aliens departure, you will proceed with the
consideration of the visa application. However, if political sensitivities
become evident, you will consult with individuals at appropriate levels of the
consular post or embassy concerning the matter. The Department may be
consulted as necessary.




9 FAM 42.65 N7 SECONDARY EVIDENCE IN
LIEU OF SUPPORTING DOCUMENT
(CT:VISA-1459; 07-30-2010)

INA 222(b) (8 U.S.C. 1202(b)) prescribes the documentation required of
applicants. It will be rare that a document listed as available in Visa
Reciprocity and Country Documents Finder is unobtainable. If, however, you
are satisfied that a document is unobtainable, the officer must require
substitute documentation or secondary evidence. 22 CFR 42.65(d)(2)
requires the consular officer to affix a signed statement describing in detail
the reasons for considering the record or document unobtainable and for
accepting the particular secondary evidence attached to the visa. (See 22
CFR 42.65(d).) In these cases, the applicant must submit proof of the
unavailability of the missing document; for example, a statement from the
local authorities that records for the year in question were destroyed by fire,
or proof of the attempts made to obtain the document. When accepting
substitute documentation or secondary evidence, you must complete Form
FS-552, Certificate Regarding Documents Required by 22 CFR 42.65(b)
Which Are Unobtainable, upon which the officer will make the statement
required by 22 CFR 42.65(d)(2) and attach the Form FS-552 to the visa.


9 FAM 42.65 N8 APPLICANTS SUBMITTING
OTHER SATISFACTORY EVIDENCE OF GOOD
CONDUCT
(CT:VISA-877; 04-09-2007)

If an applicant has presented a comprehensive police certificate fully
meeting the requirements of 22 CFR 42.65(c) from the applicants country of
principal residence, you need not require a police certificate from other
places of former residence, provided the applicant presents other
satisfactory evidence of good conduct. For example, it has been held that
proof of membership in or affiliation with a reputable religious organization
in a religious capacity during periods of foreign residence may be accepted
as such evidence. However, if you have reason to believe that a police or
criminal record might exist in the foreign country, which would render the
alien ineligible to receive a visa, you must require the alien to obtain the
police certificate. If the police certificate is not obtainable from the local
authorities, the alien must present other convincing evidence that he is not
ineligible to receive a visa.




9 FAM 42.65 N9 DOCUMENTS REQUIRED FOR
SPOUSE OR CHILDREN NOT ACCOMPANYING
ALIEN
(CT:VISA-1459; 07-30-2010)

In addition to the personal documentation required of an applicant, a
principal alien is also required to submit documentation establishing the
relationship between such principal, the spouse, and all children, including
those who will not accompany the principal applicant. If a male principal
applicant has an illegitimate offspring who meets the definition of child in
INA 101(b)(1)(D) (8 U.S.C. 1101(b)(1)(D)), as amended, you will also
require documentation for that child. (See 9 FAM 42.65 PN2.)


9 FAM 42.65 N10 PHOTOGRAPH
REQUIREMENTS
(CT:VISA-1217; 05-15-2009)

a. One of the most common problems the Department of Homeland Security
(DHS) encounters with IV packets is a poor quality photograph. The IV
photograph is a crucial itemultimately it will become the image on the
bearer's "green card." Posts should ensure that photographs are in
accordance with these instructions, as well as the instructions on
photographs found in 9 FAM Appendix L.

b. In the rush to process cases quickly, you may be tempted to accept
substandard photos rather than refusing the applicants until they bring in
new ones. However, in the long run, those applicants will be better
served if posts require them to retake poor quality photos. The
applicants will ultimately be spared the time and trouble of having to
repeat the process in DHS secondary inspection at the port of entry
(POE), or having their Form I-551, Permanent Resident Card, questioned
at some future point because of the poor quality photo.

c. For further guidelines on visa photograph requirements, refer to 9 FAM
Appendix L 302.


9 FAM 42.65 N10.2 Photograph Specifications
(CT:VISA-934; 03-14-2008)

a. Applicants must present two color photographs. Photographs must be:




(1) Glossy, untouched, un-mounted, and on a white or off-white
background;

(2) The subject will be shown in full frontal view, with full head, from
top of hair to bottom of chin, with the eyes wide open; and

(3) The dimension of the facial image must be about one inch (33 mm)
from the chin to the top of the hair.

NOTE: Instant-type photos are acceptable, but any photographs
submitted must meet all specifications given above and bear a clear
resemblance to the applicant.

b. Generally, applicants must have their photo taken without head covering
of any kind. You may accept a photo with a head covering only when the
presentation of a photo without head covering would conflict with the
applicants religious practices. A photograph depicting a person wearing
a head covering must show enough of the face so as to establish identity.
A photo depicting a person wearing a traditional facemask or veil, which
conceals portions of the face and does not permit adequate identification,
is not acceptable. A photo is required of all applicants regardless of age.

c. Also, eyeglasses should be worn if normally used by the subject.


9 FAM 42.65 N11 REVIEWING COPIES OF
DOCUMENTS SUBMITTED TO THE
DEPARTMENT OF HOMELAND SECURITY
(DHS)
(CT:VISA-1076; 10-16-2008)

The Department of Homeland Security (DHS) does not routinely require the
submission of original documents or certified copies with the filing of
petitions. You must ensure that photocopies of documents submitted in
support of petitions are compared with original documents at the time of
immigrant visa (IV) application. Original documents connected with petition
filing, but not required for IV issuance, should not be routinely required
unless there is reason to doubt their authenticity. However, the consular
officer, at his or her discretion, may require submission of any original
document in order to compare it with a photocopy upon which a petition was
approved.




9 FAM 42.65
PROCEDURAL NOTES
(CT:VISA-1900; 09-25-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.65 PN1 INSPECTION OF ORIGINAL
DOCUMENT BY CONSULAR SECTION PERSONNEL
AND ENDORSEMENT OF CERTIFIED OR
MECHANICALLY REPRODUCED COPIES
(CT:VISA-1900; 09-25-2012)
When an alien presents a mechanically reproduced copy of any of the required
documents listed under 22 CFR 42.65(b), it is important that the original
document be inspected by consular section personnel. After inspection, the
consular section must endorse the copy with a rubber stamp that imprints the
name of the post and the fact that the original has been seen and compared.
When copies of these required documents have been uploaded electronically into a
consular system, the consular section personnel will check the box in the system
that indicates original seen and compared. This procedure does not constitute a
certification within the meaning of Item 47 of the Tariff of Fees, since neither the
full signature of a consular officer nor the official seal of the post is used or
required. This service is performed without fee, whether on public documents
required under INA 222(b) or on documents submitted in support of Form ETA-
750, Application for Alien Employment Certification.


9 FAM 42.65 PN2 VERIFICATION BY CONSULAR
OFFICER OF SUPPORTING DOCUMENTS
(TL:VISA-59; 05-15-1992)
a. Consular officers must examine and verify records or documents which are
submitted by the principal alien establishing the principal aliens relationship to
a spouse or child who will not accompany the principal alien. After verifying the
claimed relationship of the principal alien to a spouse or child who will not
accompany the principal alien, the post should stamp on the reverse side of all
pertinent documents the following legend:


RELATIONSHIP TO_
(name of spouse or child and relationship to principal alien) VERIFIED. THIS


DOCUMENT SHOULD BE PRESENTED IN SUPPORT OF ANY FUTURE VISA
APPLICATION BY OR FOR THE PERSON NAMED THEREIN.
b. The consular officer must initial the stamped legend. In addition to procuring
the stamp in English, posts may wish to procure appropriate foreign language
versions.


9 FAM 42.65 PN3 ATTACHING PERTINENT
PROVISIONS OF FOREIGN LAW TO THE VISA OF
AN ALIEN CONVICTED OF CERTAIN OFFENSES
(CT:VISA-1132; 12-19-2008)
When the police record does not clearly show that an offense of which an alien was
convicted does not involve moral turpitude within the meaning of INA
212(a)(2)(A)(i)(I), attach a copy of the pertinent foreign statute, together with its
translation, to the police record. Attaching the text of the foreign statute will
facilitate the examination of the alien at the port of entry (POE).


9 FAM 42.65 PN4 REPORTING AVAILABILITY OF
POLICE CERTIFICATES TO THE DEPARTMENT
(CT:VISA-1132; 12-19-2008)
Consular officers should periodically discuss with the host government the
availability and quality of police clearance information, as well as the procedures
to be followed for visa applicants to obtain clearances both within and outside the
country. Posts should provide information concerning the degree of automation
and centralization of records, as well as any purge procedures followed by the host
country. Posts should also determine how criminal records are indexed in their
nation. The use of a unique national identification number as opposed to
nonstandard spellings of names is also significant. Posts should provide
background to the Departments Post Liaison Division (CA/VO/F/P), as well as draft
language for inclusion in the Reciprocity Schedule. Posts should clear information
with the regional security officers (RSOs) and coordinate with like-minded foreign
embassies as appropriate.






9 FAM 42.66
MEDICAL EXAMINATION
(CT:VISA-960; 05-22-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.66 RELATED STATUTORY
PROVISIONS
(CT:VISA-960; 05-22-2008)

See INA 221(d) (8 U.S.C. 1201(d))
INA 221(d)
d. Prior to the issuance of an immigrant visa to any alien, the consular
officer shall require such alien to submit to a physical and mental
examination in accordance with such regulations as may be prescribed.
Prior to the issuance of a nonimmigrant visa to any alien, the consular
officer may require such alien to submit to a physical or mental
examination, or both, if in his opinion such examination is necessary to
ascertain whether such alien is eligible to receive a visa.


9 FAM 42.66 RELATED REGULATORY
PROVISIONS
(CT:VISA-960; 05-22-2008)

See 22 CFR 42.66






9 FAM 42.66
NOTES
(CT:VISA-1638; 04-07-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.66 N1 MEDICAL EXAMINATION OF
IMMIGRANT VISA (IV) APPLICANTS
(CT:VISA-1067; 10-09-2008)
a. INA 221(d) (8 U.S.C.1201(d)) requires all applicants applying for
immigrant visas (IV) to undergo a physical and mental examination. The
results of this statutorily required medical examination are used to
determine the aliens eligibility for such a visa. The medical finding by
the panel physician or the Department of Health and Human Services/
Public Health Service/Centers for Disease Control and Prevention
(HHS/PHS/CDC), if referred to that agency, is binding on you. (See 9
FAM 40.11.)
b. Visa medical examinations may not be conducted in the United States.
The post shall inform an alien pursuing a visa application abroad, while
physically present in the United States, that the medical examination will
be conducted by a panel physician who has been designated by the visa-
issuing post to conduct medical examination of aliens in the country in
which the alien applies for a visa.


9 FAM 42.66 N2 PANEL PHYSICIANS
(CT:VISA-1638; 04-07-2011)
There are no specific regulations governing the selection of panel physicians.
The consular officer has the authority to appoint them without prior approval
from the Department. However, the U.S. Public Health Service
(USPHS)/CDC Division of Global Migration and Quarantine, in collaboration
with the Bureau of Consular Affairs/Visa Office (CA/VO), oversees and
monitors panel physician activity. The USPHS/CDC has provided guidelines
on how to select a panel physician (see 9 FAM 42.66 Exhibit II). The
USPHS/CDC recommends that consular officers, in selecting panel
physicians, seek the advice of the local medical community, medical
associations in the area, and any U.S. Government physicians who may be
available locally. Posts must have current written agreements with panel
physicians. (See 9 FAM 42.66 Exhibit I for text of sample written agreement




and 9 FAM 42.66 Exhibit II, How to Select a Panel Physician and Monitor the
Medical Examination for Immigration Visa.)

9 FAM 42.66 N2.1 Criteria for Appointment of
Panel Physician
(CT:VISA-1638; 04-07-2011)
USPHS/CDC recommends that the following criteria be applied, when
possible, in the appointment of panel physicians:
(1) The physician must have satisfactorily completed medical education
and have a medical degree from an accredited medical school;
(2) The physician should have special competence in the diagnosis and
treatment of individuals with tuberculosis and sexually transmitted
illnesses (STIs) and should be able to recognize mental illness;
(3) The physician should have demonstrated competence to perform
large numbers of examinations for specific purposes, such as
insurance, industrial employment, etc. (this point is less important
for a post where there are a limited number of medical
examinations);
(4) The physician should have reliable X-ray facilities or access to such
facilities and should be able to make arrangements for laboratory
work to be performed by a laboratory of recognized competence;
and
(5) The physician should have reliable storage facilities or have access
to such facilities for vaccines, according to the CDCs 2007
Technical Instructions for Vaccinations. Proper handling and
storage of vaccines are important to ensure their potency.

9 FAM 42.66 N2.2 Small Number of Panel
Physicians with Convenient Offices
(CT:VISA-1067; 10-09-2008)
The USPHS/CDC recommends that the number of examining physicians be
kept to a minimum and that a high percentage of the visa medical
examinations be done by no more than two physicians. Additional
physicians may be appointed at posts with a large volume of cases, or in the
event of a protracted illness, or extended absence of a physician. To enable
the consular officer to minimize possible fraud (see 9 FAM 42.66 N10.2) and
for better communications with the examining physician, it is best to have
the physicians examining facility located near the visa-issuing post. The
Department is aware that many posts feel obligated to approve greater




numbers of panel physicians in scattered locations under their jurisdiction
out of considerations of convenience and cost to the alien. The current
recommendation is to have one panel physician per 2,000 applicants.

9 FAM 42.66 N2.3 Use of Hospital Physicians for
Examinations
(CT:VISA-1391; 01-13-2010)
When the post uses the facilities of a hospital with a large number of doctors
and where there is normally a large turnover of doctors, USPHS/CDC
suggests that the post appoint two hospital physicians to be responsible and
accountable for the medical examinations and authorized to sign the Form
DS-2053, Medical Examination For Immigrant or Refugee Applicant (for use
with TB Technical Instructions 1991) or Form DS-2054, Medical Examination
for Immigrant or Refugee Applicant (for use with TB Technical Instructions
2007). Sample signatures of these physicians should be kept on file at the
post.

9 FAM 42.66 N2.4 U.S. Public Health Service/
Centers for Disease Control and Prevention
(USPHS/CDC) Regulations Governing Medical
Examinations
(CT:VISA-1391; 01-13-2010)
a. USPHS/CDC regulations relating to medical examinations of applicants
can be found at 42 CFR 34. For specific instructions for performance of
medical examinations, see Technical Instructions (TIs) for Panel
Physicians, the 2007 Tuberculosis (TB) TIs, and 2007 TIs for
Vaccinations. Each panel physician should have his or her own personal
copy of these instructions.
b. On July 30, 2001, the CDC posted instructions to panel physicians for
completing U.S. Department of State Form DS-2053, Medical Examination
For Immigrant or Refugee Applicant, and associated worksheets; Form
DS-3024, Chest X-Ray and Classification Worksheet; Form DS-3025,
Vaccination Documentation Worksheet; and Form DS-3026, Medical
History and Physical Examination Worksheet. (See CDCs Instructions for
Department of State Forms.)
c. Please provide a copy of these instructions to your panel physicians.
These instructions are also available from the Consular Affairs Intranet
home page under the visa office links.




9 FAM 42.66 N3 PANEL PHYSICIAN
AGREEMENTS
(CT:VISA-1067; 10-09-2008)
a. Upon assuming duty as an immigrant visa chief (or chief of a small
consular section), you should review all existing panel physician
agreements to verify that they are valid and conform to suggested
standard language (see 9 FAM 42.66 Exhibit I), or meet the criteria for a
derivative contract developed and approved by the Centers for Disease
Control and Prevention (CDC). A copy of each agreement should have
been sent to:
QAP Immigrant, Refugee, and Migrant Health
Division of Global Migration Quarantine, (MS-E03)
Centers for Disease Control and Prevention
Atlanta, GA 30333
b. You may also send scanned signed Panel Physician Agreements to CDC
via e-mail at: cdcqap@cdc.gov.
c. It is no longer necessary to send copies of these agreements to the
Department, unless post wishes confirmation from the Post Liaison
Division (CA/VO/F/P) that the agreement meets basic requirements.


9 FAM 42.66 N4 CONTACT WITH PANEL
PHYSICIANS

9 FAM 42.66 N4.1 Introductory Visit to Panel
Physician
(CT:VISA-1067; 10-09-2008)
If possible, you should pay an introductory call on each panel physician at
the physician's office. During the visit, you should ensure that the physician
is thoroughly familiar with the CDC's 1991 Technical Instructions For the
Medical Examination of Aliens, 2007 Tuberculosis (TB) Technical
Instructions, 2007 Technical Instructions for Vaccinations, and any CDC
published updates, and is performing examinations in strict compliance with
CDC instructions. You should review proper procedures for establishing the
identity of persons being tested. You should also inspect the laboratory
facilities and review prescribed procedures for ensuring the proper control of
X-rays and blood samples. (See 9 FAM 42.66 Exhibit II, How to Select a
Panel Physician and Monitor the Medical Examination for Immigrant Visas.)




9 FAM 42.66 N4.2 Visiting Outside Laboratories
(CT:VISA-1067; 10-09-2008)
If the panel physicians use outside laboratory facilities, you should require
them to keep the total number of labs to a minimum; we suggest no more
than three per country. Where feasible, panel physicians should oversee the
drawing of the blood samples to ensure against substitution. Consular
officers and panel physicians should also visit outside labs on a periodic basis
to ensure that proper identification safeguards and good laboratory
procedures are being followed. Finally, you should emphasize the necessity
of the physician personally contacting the officer in the event of a Class A
finding in any applicant.

9 FAM 42.66 N4.3 Follow-up Contacts
(CT:VISA-1638; 04-07-2011)
You should maintain periodic contact with the panel physicians, and should,
if possible, make occasional, unannounced visits. You should occasionally
ask immigrant visa (IV) applicants to describe the scope of the medical
examination they received, the procedures used to establish identity, and
the arrangements for pick-up of the medical reports. You should discuss any
lax or improper procedures with the panel physician.

9 FAM 42.66 N4.4 Group Sessions
(CT:VISA-1067; 10-09-2008)
Where workload and logistics permit, you may host group meetings, which
involve all panel physicians. Such meetings give panel physicians the
opportunity to share notes and raise any current problems or issues which
they may wish to discuss.


9 FAM 42.66 N5 MEDICAL SCREENING FORMS
(CT:VISA-1391; 01-13-2010)
The forms listed in 9 FAM 42.66 N5.1 through 9 FAM 42.66 N5.4 are the
required medical screening forms. Posts can review and download forms
from e-Forms. Posts should make hard copies of the forms locally, either
through photocopies or through a local printer. Reproduction costs must
come from post funds. The intent of these new forms is to provide a better
screening process of Class A (excludable) and Class B medical conditions of
immigrant visa (IV) and refugee applicants.




9 FAM 42.66 N5.1 Forms DS-2053 and DS-2054,
Medical Examination for Immigrant or Refugee
Applicant
(CT:VISA-1391; 01-13-2010)
a. Form DS-2053, Medical Examination for Immigrant or Refugee Applicant
(for use with TB Technical Instructions 1991) and Form DS-2054, Medical
Examination for Immigrant or Refugee Applicant (for use with TB
Technical Instructions 2007) are essential for immigrant applicants or
refugee resettlement. They should be used consistently and always be
included in the immigrant or refugee packet. Form DS-2053 / Form DS-
2054 is used to establish eligibility under INA 212(a)(1). You are
responsible for ensuring that the physician has completely filled out all of
the information at the top of the form.
b. If a Class A condition is found, you must determine which Class A
condition(s) applies to the immigrant visa (IV) applicant and whether a
waiver under INA 212(g) is applicable. (If a refugee is found to have a
Class A condition, you should seek the assistance of Bureau of Population,
Refugees and Migration/Office of Admissions (PRM/A) or follow guidance
on waiver processing for refugees.) For posts using the 1991 Technical
Instructions, the medical exam involving a Class A condition is only valid
for six months, instead of the normal twelve months. For posts using the
2007 TB TIs, if the Class A condition is non-TB, the medical exam is only
valid for six months. In the case of Class A, TB condition with a waiver,
the medical exam is only valid for three months. You should inform the
visa applicant of the time frame validity of the medical exam and the
requirement that they must get a new medical examination if they do not
depart for the United States within the validity period of their exam.
Class A waivers for tuberculosis, HIV/AIDS, or mental disorders should be
annotated on the Machine Readable Immigrant Visa (MRIV) to reflect the
applicants condition for the U.S. Public Health Service (USPHS). (See 9
FAM 42.73 PN2.1 (b).)
c. If a Class B condition is found in the case of immigrant visa (IV)
applicants, the box in "Class B Conditions is checked, and you should
annotate the MRIV in the USPHS box. (See 9 FAM 42.73 PN2.1 (b).) You
should also determine if there are any public charge issues. If there are
not, the visa process can continue. For posts using the 1991 TIs, if there
is a Class B1 or B2 TB condition, the medical exam is only valid for six
months, instead of the normal twelve months. For posts using the 2007
TB TIs, if there is a Class B2 TB or Class B3 TB the medical exam is only
valid for six months. In cases involving a Class B1 TB Pulmonary or Class
B1 TB Extrapulmonary the medical exam is only valid for three months.
You should inform the visa applicant of the time frame validity of the




medical exam and the requirement to get a new medical exam if they do
not depart for the United States within the validity period of the
examination.

9 FAM 42.66 N5.2 Forms DS-3024 and DS-3030,
Chest X-Ray and Classification Worksheet
(CT:VISA-1391; 01-13-2010)
Form DS-3024, Chest X-ray and Classification Worksheet and Form DS-
3030, Chest X-Ray and Classification Worksheet are designed for the
physician's use in diagnosing a tuberculosis (TB) condition and classification.
The panel physician should ascertain fraud prevention measures in collecting
information. The panel physician should ascertain that fraud prevention
measures for applicant identity verification and information collection are
taken by outside x-rays labs to which applicants are referred. (See 9 FAM
42.66 N10 below.) Form DS-3024 is used with Form DS-2053 and Form DS-
3030 is used with Form DS-2054.

9 FAM 42.66 N5.3 Form DS-3025, Vaccination
Documentation Worksheet
(CT:VISA-1067; 10-09-2008)
Form DS-3025, Vaccination Documentation Worksheet, provides a list of
immunizations needed by the applicant as required by law. A copy of the
vaccination worksheet should be provided to the applicant.

9 FAM 42.66 N5.4 Form DS-3026, Medical History
and Physical Examination Worksheet
(CT:VISA-1067; 10-09-2008)
Form DS-3026, Medical History and Physical Examination Worksheet,
includes information regarding past medical history as reported by the
applicant and recorded by the panel physician or by other qualified medical
personnel. Rules concerning the requirements of medical history and
medical examination can be found in the Center for Disease Control
"Technical Instructions for Medical Examination Aliens" and in the panel
physician agreement. (See 9 FAM 42.66 Exhibit I.) This form should be
reviewed by you to determine whether an additional medical condition would
raise public charge issues. (Public charge concerns are not applicable to
refugee applicants.)




9 FAM 42.66 N6 FEE FOR MEDICAL
EXAMINATION BY PANEL PHYSICIAN
(CT:VISA-1067; 10-09-2008)
The fees charged for the medical examination, chest x-rays, vaccinations,
and serological tests are to be determined by the consular officer and the
selected physician and should be governed by prevailing medical fees
charged within the country for similar services.


9 FAM 42.66 N7 VALIDITY PERIOD OF
APPLICANTS MEDICAL EXAMINATION
(CT:VISA-1067; 10-09-2008)
See 9 FAM 40.11 N6.


9 FAM 42.66 N8 BASIS OF MEDICAL REPORT
IN DETERMINING ELIGIBILITY UNDER INA
212(a)(1) - CLASS A/CLASS B MEDICAL
FINDINGS
(CT:VISA-1638; 04-07-2011)
a. The panel physician conducts the examination and testing required to
assess the applicants medical condition and then completes Form DS-
2053, Medical Examination for Immigrant or Refugee Applicant (for use
with TB Technical Instructions 1991 and Form DS-3024) or Form DS-
2054, Medical Examination for Immigrant or Refugee Applicant (for use
with TB Technical Instructions 2007 and Form DS-3030), Form DS-3024,
Chest X-Ray and Classification Worksheet or Form DS-3030, Chest X-Ray
and Classification Worksheet, Form DS-3025, Vaccination Documentation
Worksheet, and Form DS-3026, Medical History and Physical Examination
Worksheet. You cannot find an applicant inadmissible under INA
212(a)(1) (8 U.S.C. 1182(a)(1)) without a report from the panel
physician. The panel physician determines whether diagnostic tests are
needed when the medical condition is self-declared by the applicant.
b. Upon completion of the applicants medical examination, the examining
physician shall submit the report to you. The report must include the
results of any diagnostic tests required for the diagnosis of diseases
identified as communicable diseases of public health significance and any
other tests necessary to confirm a suspected diagnosis of any other
Class A or Class B condition. You will see the list of the results on the




form as follows:
(1) No defect, disease, or disability;
(2) Class Aa communicable disease of public health significance or a
physical or mental disorder associated with harmful behavior, or
drug abuse/addiction (INA 212(a)(1)(A)(i), (iii), or (iv)); or
(3) Class Bphysical or mental defect, disease, or disability serious in
degree or permanent in nature amounting to a substantial
departure from normal physical or mental well-being.
c. A Class A medical finding requires you to find an alien inadmissible
under INA 212(a)(1). The physicians examination must be conducted in
accordance with the current Technical Instructions for Medical
Examination of Aliens (Technical Instructions) distributed by the Centers
for Disease Control (CDC).
d. A Class B finding informs you that a serious medical condition exists
that constitutes a departure from normal health or well-being. You must
consider such finding when assessing the aliens eligibility for visa
issuance; i.e., the likelihood of the alien becoming a public charge.


9 FAM 42.66 N9 COMMUNICABLE DISEASES
OF PUBLIC HEALTH SIGNIFICANCE
(CT:VISA-1067; 10-09-2008)
See 9 FAM 40.11 N9 for this list.


9 FAM 42.66 N10 PRECAUTIONS IN
ESTABLISHING IDENTITY OF VISA
APPLICANTS UNDERGOING MEDICAL
EXAMINATION

9 FAM 42.66 N10.1 Verifying Identity of Person
Examined
(CT:VISA-1638; 04-07-2011)
Consular officers must ensure that panel physicians take every possible
safeguard to verify that the person who is examined by the physician is, in
fact, the visa applicant. Appropriate steps must be taken to preclude the
substitution of persons at medical examinations as well as other fraud.




9 FAM 42.66 N10.2 Physicians' Responsibilities
Regarding Alien's Identity
(CT:VISA-1638; 04-07-2011)
a. Post should provide an instruction sheets to the alien outlining the
medical examination requirements and procedures. The consular officer
should instruct the applicant that they must present these instructions
and their passport to the panel physician at the time of the medical
examination.
b. The instruction sheets must convey to the examining physician the need
for careful comparison of the identity of the visa applicant with the
photograph attached to the alien's passport or with other documents of
identity in order to prevent potential fraud. Instruction sheets must also
include a requirement that the physician endorse Form DS-2053, Medical
Examination for Immigrant or Refugee Applicant (for use with TB
Technical Instructions 1991) or Form DS-2054, Medical Examination for
Immigrant or Refugee Applicant (for use with TB Technical Instructions
2007).

9 FAM 42.66 N10.3 X-Ray and Other Medical
Documents to Refer to Specific Alien by Name
(CT:VISA-1067; 10-09-2008)
Reports of serological or other tests, particularly the chest x-ray, must
include the name of the alien examined to prevent document substitution.
This requirement applies to all images, regardless of format. CDC
acceptable formats are recordable compact disks (CD-Rs), laser-printed
films, or conventional emulsion films. You should instruct the panel
physician(s) to follow the procedure set forth in 9 FAM 42.66 N10.2 when he
or she refers a visa applicant to another physician or to a laboratory for an
x-ray examination or laboratory tests. Also instruct the physician or
laboratory to which the alien is referred to take similar care in establishing
the visa applicants identity on all documentation.


9 FAM 42.66 N11 CHEST X-RAYS, SEROLOGIC
TESTS, AND X-RAY REQUIREMENT FOR
APPLICANTS UNDER 15 YEARS OLD AND
PREGNANT WOMEN

9 FAM 42.66 N11.1 Chest X-Ray and Serologic




Tests for Applicants Under 15 Years Old
(CT:VISA-1391; 01-13-2010)
CDC regulations provide that neither a chest x-ray examination nor serologic
testing for syphilis shall be required if the alien is under the age of 15.
However, applicants under the age of 15 who are ill and have signs or
symptoms suggestive of tuberculosis or who are a known contact of
someone diagnosed with tuberculosis should have a tuberculin skin test
(TST). A chest x-ray (CXR) examination may be required, depending on the
result of the TST. Applicants under 10 years of age who receive a CXR
should have a standard view and lateral view images. If the applicant has a
CXR with findings suggestive of tuberculosis, the applicant should provide
three sputum specimens to undergo microscopy for acid-fast bacilli, as well
as cultures for mycobacteria and confirmation of the Mycobacterium species
(in accordance with the 2007 TB TIs). A serologic test may also be required
where there is reason to suspect infection with syphilis.

9 FAM 42.66 N11.2 X-Ray Requirement for
Pregnant Women
(CT:VISA-1391; 01-13-2010)
a. CDC requires that women who are pregnant and required to have a
medical examination in connection with the issuance of a visa and are
examined in a country currently using the 2007 TB Technical Instructions
must have a chest x-ray examination conducted. This requirement does
not apply to those posts using the 1991 TB Technical Instructions.
b. Pregnant women will have to provide the panel physician with consent to
conduct the chest x-ray. For the health of the applicant and her unborn
child, CDC instructs panel physicians and laboratories to provide
abdominal and pelvic protection with double layer, wrap-around lead
shields when they receive the chest radiographs.


9 FAM 42.66 N12 REFERRAL OF DOUBTFUL
CASES BY PANEL PHYSICIANS TO LOCAL
SPECIALISTS AND U.S. PUBLIC HEALTH
SERVICE/CENTERS FOR DISEASE CONTROL
AND PREVENTION (USPHS/CDC)

9 FAM 42.66 N12.1 Cases to be Referred Locally if
Possible




(CT:VISA-1391; 01-13-2010)
Since USPHS/CDC does not currently have physicians stationed abroad to
whom panel physicians may refer doubtful cases, consular officers should
inform local panel physicians that whenever further medical consultation is
deemed advisable, the applicant should be referred to an appropriate local
specialist at the applicants expense. Under generally accepted medical
procedures, the specialist should report the findings and opinion to the panel
physician who remains responsible for the completion of Form DS-2053,
Medical Examination for Immigrant or Refugee Applicant (for use with TB
Technical Instructions 1991 and Form DS-3024) or Form DS-2054, Medical
Examination for Immigrant or Refugee Applicant (for use with TB Technical
Instructions 2007 and Form DS-3030), Form DS-3026, Medical History and
Physical Examination Worksheet, Form DS-3024, Chest X-ray and
Classification Worksheet or Form DS-3030, Chest X-Ray and Classification
Worksheet, and Form DS-3025, Vaccination Documentation Worksheet, and
final results of the medical examination.

9 FAM 42.66 N12.2 Referral to U.S. Public Health
Service/ Centers for Disease Control and
Prevention (USPHS/CDC) in Rare Instances
(CT:VISA-1638; 04-07-2011)
a. In those comparatively rare instances where no local specialist is
available for consultation, local panel physicians shall refer specific
problems to USPHS/CDC at the following address:
QAP Manager
Immigrant, Refugee, and Migrant Health
Division of Global Migration and Quarantine, (MS-E03)
Centers for Disease Control and Prevention
Atlanta, Georgia 30333
b. In submitting medical questions relating to diseases of the chest, the
panel physician should furnish the following:
(1) A complete medical history including history of the clinical course of
the disease;
(2) Bacteriological studies (AFB smears or culture results);
(3) Description of X-ray findings (transmit all X-rays);
(4) Detailed account of treatment (chemotherapy and other); and
(5) Organism resistance studies, if done.
c. If the problem relates to mental illness, the panel physician should
furnish the following information:




(1) A complete medical history of the alien, including details of any
hospitalization or institutional care or treatment for any physical or
mental condition;
(2) Findings as to the current physical condition of the alien, including
reports of chest X-ray examination and of serologic testing for
syphilis infection if the alien is 15 years of age or older, and other
pertinent diagnostic tests; and
(3) Findings as to the current mental condition of the alien, with
information as to prognosis and life expectancy and with a report of
a psychiatric examination conducted by a psychiatrist who, in case
of mental retardation, shall also provide an evaluation of
intelligence.
d. For an alien with a past history of mental illness, the medical report must
also contain information on which the USPHS/CDC can base a finding as
to whether the alien has been free of such mental illness for a period of
time sufficient in the light of such history to demonstrate recovery.

9 FAM 42.66 N12.3 Confidentiality of Reports
Received from U.S. Public Health Service/ Centers
for Disease Control and Prevention (USPHS/CDC)
(CT:VISA-1391; 01-13-2010)
Consular officers receiving reports from the USPHS/CDC in response to
direct requests for review may inform inquirers for this review that the
report has been received but may furnish additional information only as
consistent with the requirements of INA 222(f) concerning the confidentiality
of records pertaining to the issuance or refusal of visas.


9 FAM 42.66 N13 DIVULGENCE OF CONTENTS
OF MEDICAL EXAMINATION REPORTS
(CT:VISA-1638; 04-07-2011)
Consular officers must be guided by the information in 9 FAM 40.4 N3 in
responding to inquiries on individual visa cases and grounds of visa
ineligibility for medical reasons. Consular officers should not divulge the
particulars of an applicants general physical and mental health. The
inquirer should be told only that the applicant has been found to be
medically qualified for a visa. The inquirer should be referred to the visa
applicant for further information.




9 FAM 42.66 N14 DISPOSITION OF MEDICAL
REPORTS
(CT:VISA-1638; 04-07-2011)
a. In cases in which no Class A or inadmissible Class B medical condition
(i.e., Class B TB) is detected, the panel physician may give the medical
reports to the applicant to take to the interview.
b. In cases in which a Class A medical condition is detected, the panel
physician must not give the medical report to the applicant but shall
ensure that it is delivered directly to the consular officer, except in rare
instances when the physician must give the report to the applicant to
deliver to the consular officer. In those rare instances in which it is
necessary for the applicant to take the medical report to the consular
officer, the panel physician must ensure that the report is placed in a
sealed envelope in such a way that the consular officer can easily
determine if it has been opened.
c. In cases in which an inadmissible Class B medical condition (i.e., Class B
tuberculosis) is detected, the panel physician shall not give the medical
report to the applicant but must ensure that it is delivered directly to the
consular officer, except in cases in which the procedure is impractical. In
those rare instances in which it is necessary for the applicant to take the
medical report to the consular officer, the panel physician must ensure
that the report is placed in a sealed envelope in such a way that the
consular officer can easily determine if it has been opened.


9 FAM 42.66 N15 DISPOSITION OF MEDICAL
DOCUMENTS AFTER VISA ISSUANCE TO
APPLICANTS WITH AND WITHOUT CLASS A
OR B MEDICAL CONDITIONS
(CT:VISA-1638; 04-07-2011)
a. NO CLASS A OR CLASS B MEDICAL CONDITION: The panel physician
should provide a copy of all medical examination forms and related
worksheets to the alien. Aliens without a Class A or Class B medical
condition are not required to present copies of their medical evaluation at
the port of entry. In cases where the applicant has had a chest x-ray,
you should instruct the panel physician to give the x-ray image(s) directly
to the alien. If, however, the x-ray image(s) or CD-R is hand-carried or
sent to the consular section, you must give the images to the applicant
for their medical records. Instruct the alien to:




(1) Retain this x-ray image as an important record of his or her
physical condition at the time of the medical examination; and
(2) Take the chest x-ray image(s) to the United States as part of his or
her permanent health record.
b. CLASS A OR CLASS B MEDICAL CONDITION: At the time of visa
issuance, attach, by staples, to the aliens passport a sealed envelope
containing the original and three copies of Form DS-2053, Medical
Examination for Immigrant or Refugee Applicants, and all related
worksheets. U.S. Customs and Border Protection (CBP) will collect the
original form, give one copy to the alien and two copies to the
USPHS/CDC Quarantine Station, which will keep one copy and send the
other to CDC Headquarters. The envelope must be clearly marked
Medical Report (Form DS-2053 and related worksheets) enclosed. Give
to the applicant all available x-ray image(s) (in a CDC accepted format)
pertaining to the case in a separate sealed envelope. Label the envelope:
For delivery by (aliens name) to the (name of hospital agreed on) as
soon as possible after entry into the United States.
Instruct the alien to:
(1) Retain the x-ray image(s) as an important record of his or her
physical condition at the time of the medical examination; and
(2) Take the chest x-ray image(s) to the United States as part of his or
her permanent health record.
Since these images are for follow-up evaluation purposes only, the alien
need not hand-carry the x-ray image(s) for presentation at the port of
entry.


9 FAM 42.66 N16 IMMIGRANTS ADVISED TO
CARRY IMMUNIZATION AND OTHER RECORDS
TO UNITED STATES
(CT:VISA-1638; 04-07-2011)
a. Every state in the United States now requires that children have a record
of completed immunization(s) at the time of a childs first enrollment into
school. In most states, this applies to transfer students entering any
grade. Therefore, the USPHS/CDC strongly recommends that children
entering the country should either have evidence of immunity consisting
of physician documentation of prior disease or a record of immunizations.
b. Panel physicians must inform immigrant visa (IV) applicants at the time
of examination that problems may be encountered should they enter the
United States without proper health records and certifications of




vaccinations, and they must urge the applicants to obtain such
documents from their private physicians, local health departments, or
schools prior to departure.
c. Panel physicians must provide a copy of Form DS-3025, Vaccination
Documentation Worksheet, to all immigrants as part of their permanent
health record. Immigrants should be advised to hand-carry this
document with their other medical paperwork.


9 FAM 42.66 N17 APPLICANTS SUSPECTED
OF BEING HIV POSITIVE BY THE PANEL
PHYSICIAN
(CT:VISA-1391; 01-13-2010)
On November 2, 2009, CDC issued the HIV Final Rule removing HIV infection
from the definition of communicable disease of public health significance
effective January 4, 2010. It removed HIV infection as a ground of
ineligibility under 42 CFR 34 and serologic testing for HIV from the scope of
the medical examination for immigration purposes. However, for applicants
who may benefit from being tested for HIV, the panel physician may counsel
the applicant about HIV, and may administer an HIV serologic test, if the
applicant consents to the testing. The panel physician must also inform the
applicant that they do not have to be tested for HIV and that the results of
the HIV serologic testing will be provided to the consular section processing
his or her visa application as part of the visa medical examination packet of
forms.






9 FAM 42.66 EXHIBIT I
SAMPLE WRITTEN AGREEMENT WITH
MEDICAL PANEL PHYSICIANS
(CT:VISA-1787; 12-15-2011)
(Office of Origin: CA/VO/L/R)
Issued by:
U.S. Embassy/Consulate
(Address)
Physicians:
Dr. John Smith
Dr. Jane Doe
(Address)



Dear Drs. Smith and Doe:

You have been selected by the U.S. Embassy/Consulate (name of post) in
consultation with the U.S. Public Health Service, as panel physician(s) to
administer medical examinations at the above indicated address, when
required, to persons seeking visas to enter the United States, in accordance
with the following understandings:

(1) You attest that you are under no disability that would preclude you
from performance of services as outlined hereunder.

(2) You are authorized to perform examinations and sign as Medical
Technical Advisors on the Form DS-2053, Medical Examination for
Immigrant and Refugee Applicants. Only physicians so authorized
by the U.S. Embassy may perform such examinations and sign U.S.
Government Form DS-2053. Designation of physicians is entirely
within the authority of the U.S. Embassy and the U.S. Public Health
Service.

(3) Each applicant for whom a medical examination is scheduled is
required to present to your office his/her passport or another
photograph-bearing document serving as a travel document
together with the Appointment Letter. The name shown on the
Form DS-2053 must be checked against the passport or travel
document serving as a travel document, together with the
appointment letter. The name shown on the Form DS-2053 must




be checked against the passport or travel document to ensure that
the person appearing for the medical examination is the one who is
actually applying for the visa. Identification documents should be
returned to the applicant.

(4) The medical examination will be performed prior to the date
stipulated in the notice sent to the applicant setting the date for
his/her formal visa application. All reports and x-rays will normally
be returned to the immigrant visa applicant in a sealed envelope for
delivery to the U.S. Embassy, except where Class A, Class B1, or
Class B2 conditions have been found. In such cases where a Class
A, Class B1, or Class B2 medical condition is detected, a telephone
call will be made to the Consular Officer. Said officer should also be
informed by telephone when an applicant is found with such other
Class B conditions that will require either in-flight medical
assistance or whose management after arrival will require extensive
medical or hospital care, special schools or institutional care, or
extensive rehabilitation therapy.

The examination will be performed personally by you in accordance
with the U.S. Public Health Service Technical Instructions for
Medical Examination of Aliens, June 1991 (Technical Instructions),
as amended by subsequent Department of State policy cables and
Centers for Disease Control, Division of Quarantine revisory letters.
The examination will include a(n):

Medical History that includes a review of all significant inpatient
care in hospitals and/or other institutions for mental or physical
chronic care. Inquiry should include questions about psychoactive
drug and alcohol use, a history of harmful behavior and about any
prior diagnosis or therapy for psychiatric illness. A review of chest
radiographs and treatment records is also expected for persons with
a history of tuberculosis.

Immunization History that reviews written documents of the
applicants prior immunizations and/or laboratory evidence of
disease. Only doses of vaccine with written documentation of the
date (at least month and year) of receipt of the vaccine, should be
accepted, unless otherwise indicated by CDC technical instructions.
Questions should also be asked regarding prior adverse reactions
and other possible contraindications to vaccination. Immunizations
previously received and considered valid should be transcribed to
the DS-3025, Vaccination Documentation Worksheet.

Physical Examination that includes, at a minimum, examination
of the eyes, ears, nose and throat, extremities, heart, lungs,




abdomen, lymph nodes, skin and external genitalia.

Mental Status Examination which includes, at a minimum,
assessment of intelligence, cognition (comprehension), thought,
judgment, affect (and mood), and behavior.

Full-Size Chest Radiograph (not required for persons under 15
years of age nor for pregnant women unless such persons are
suspected of having tuberculosis).

Serologic Test for Syphilis (not required for persons under 15
years of age unless there is reason to suspect infection with
syphilis). Positive screening tests will be repeated and if
persistently positive, will be confirmed by a specific treponemal test
using the original sample.

Serologic Test for Human Immunodeficiency Virus (not
required for persons under 15 years of age except as indicated in
the Technical Instructions). Positive screening tests will be
repeated and if persistently positive, will be confirmed by a Western
blot or equivalent test using the original sample.

Sputum Smear Examination. Any applicant with a chest
radiograph suggestive of pulmonary TB, whose activity status is
unknown or possibly active, shall require a sputum smear
examination. The panel physician shall make arrangements for the
sputum smear examination that shall require the supervised
collection of sputum samples on three consecutive days, and a
bacteriological examination of these samples by a competent and
licensed microbiologist.

Administration of Immunizations. Based on the applicants
current immunization history, and applying the Immunization
Schedule for Visa Applicants, the panel physician should offer to
administer those vaccines which are needed to meet the
requirements of the Immigration and Nationality Act. Vaccines
currently given should be documented on the Form DS-3025,
Vaccination Documentation Worksheet, as well as the reasons why
other vaccine deficiencies were not met. A summary certification
for meeting the immunization requirements should be made in the
Results section of the report.

(5) All examinations, radiographs, and serologic tests will be performed
at the above indicated address, except as noted below:

The x-ray will be taken and read at:






The serologic tests for HIV and syphilis will be performed at:




The sputum samples will be taken and the acid-fast microscopy will
be performed at:

The immunizations will be performed at:
facilities agreeable to the U.S. Embassy and the U.S. Public Health
Service.

(6) All costs and administrative arrangements for personnel, supplies,
equipment and office space rental needed for the examinations will
be incurred and paid by you. The offices will be maintained in a
suitable condition at all times, at no expense to the U.S.
Government.

(7) You will ensure that sufficient staff is available to process
examinations promptly and efficiently and to administer the
collection of fees.

(8) The basic examination fee * to each applicant shall be:

For each applicant 15 years of age and older, the fee shall not
exceed (fill in local currency amount) and shall include:

Serologic test for syphilis and HIIV

Chest x-ray and radiology consult

Physical examination and documentation

Any additional serologic tests to confirm HIV infection will be performed at
no extra charge to the applicant. Any additional chest x-rays or serologic
tests for syphilis required to clarify results compromised by laboratory error
will be performed at no extra charge to the applicant.

The fee for the bacteriological examination of sputum, when needed, for a
series of three acid-fast smears is:

The fee for applicants under 15 years of age will not exceed: (fill in local
currency amount).

Supplemental charges will also be approved for vaccination against:
Diphtheria, tetanus, and pertussis, or tetanus and diphtheria toxoids, plus




measles, rubella and mumps, plus

Polio (inactivated) or (live oral)

Hepatitis B:

Haemophilus influenzae type b:

Varicella:

*Includes review of immunization history but not the cost for individual
vaccines and their administration.

Pneumoccocal

Influenza:

Should the general examination reveal the need for additional tests or a
more specialized examination, the work will be performed by consultants
chosen by the applicants or designated by you. Any fee in conjunction with
further tests or examinations will be at the expense of the applicant.

Pre-test counseling and post-test counseling of all classified cases shall be
included in the basic charge for examination.

(9) You may provide treatment for active tuberculosis and venereal
diseases as outlined in the Technical Instructions. You may also
provide, at your discretion but at no charge to the applicant or the
U.S. Government, advice, treatment, or prescriptions for minor
medical problems identified during your examination. Otherwise,
you will not undertake the treatment of applicants with other
conditions requiring medical attention with the exception of certain
life-threatening emergencies.

(10) You will maintain records and files, as indicated by the U.S.
Embassy and the U.S. Public Health Service, which will be
transferred to the Embassy upon termination of this letter of
agreement.

(11) You hereby attest that the prices quoted herein are fair and
reasonable and not in excess of prices charged the general public.

(12) You hereby agree to comply with all applicable laws and all rules
and regulations having the force of law which deal with or relate to
services as outlined in this letter and to the employment by you of
any employees necessary to perform these services.




(13) You shall save, and hold harmless, the U.S. Government and its
employees or agents from any claims or liability of any kind that
may arise out of any acts done or obligations assumed by you
pursuant to this agreement.

(14) Procedures outlined in the agreement are subject to review and
consideration for amendment at any time upon receipt of written
request for such by you or by the U.S. Embassy in or by
the U.S. Public Health Service.

(15) This appointment and this letter of agreement will be effective from
.

It is also agreed that this agreement may be terminated by either
party with ninety days written notice.

(16) This letter constitutes the entire agreement between you and the
U.S. Government. No modification changing the scope or terms of
this agreement shall have any force or effect unless it is in writing
and signed by both parties.

Please acknowledge receipt of this letter and acceptance of the
terms it contains by signing the certification below.

Agreement entered into this date for the period:



For the United States of America


(Date) (U.S. Consular Officers Name)
Acceptance Certification
(Date) (Panel Physicians Name)






9 FAM 42.66 EXHIBIT II
HOW TO SELECT A PANEL PHYSICIAN
AND MONITOR THE MEDICAL
EXAMINATION FOR IMMIGRANT
VISAS
(CT:VISA-1774: 11-18-2011)
(Office of Origin: CA/VO/L/R)

Physicians, under agreement with the Consular Section (panel
physicians) of the embassy or consulate, conduct the medical
examination of U.S.-bound immigrants and refugees.
Standard criteria should be used in determining if a physician has
adequate training and/or experience to be a panel physician. An
agreement of 1-year duration is signed between the consular officer
and the physician for his/her services for that time period. A model of
that agreement is provided below. The termination of a panel
physician should occur when due cause is found. Finally, the consular
officer should maintain a good relationship with the panel
physician. This usually occurs by periodic visits to his/her facility or
telephone communication. At least once a year, the consular officer
should perform an evaluation of all the components of the
medical examination, including the panel physician.

I. Standard criteria for determining if a physician should enter
into agreement with the embassy/consulate to become a
panel physician are:

Make sure the need for such a physician exists. The number of
examining panel physicians must be kept to a minimum; therefore,
only one panel physician should be appointed for 2,000 visa
applicant examinations.

If a hospital facility is used, it is recommended that two permanent
hospital staff physicians be responsible and accountable for the
medical examinations of all the visa applicants. Furthermore, a co-
signature by one of these permanent physicians should appear on
all the Department of State medical documents (DS-2053, etc.)




The panel physician must speak and write in English.

The panel physician should submit a rsum or CV, showing
satisfactory completion of medical education and a medical degree
from a national government accredited medical school.

The panel physician should have a full local license with no
restrictions that they have used for the past 4 years.

The panel physician should have an official governmental certificate
of good standing, or the equivalent, in the medical profession, if
available in the country where the physician has his/her license.
The consular officer should obtain, two independent professional
references provided by the physician.

The consular officer should follow-up on these independent
professional references with verbal contact to one of the references
prior to the appointment of the panel physician.

In selecting a panel physician, the consular officer should seek the
advice of the local medical community, and medical associations
and any U.S. Government physicians in the area.

The panel physician appointment is person and location specific. If
the physician moves, the appointment is reviewed rather than
automatically being transferred. A need for the physician must
exist.

If another physician acts of behalf of the panel physician, the final
responsibility of exam results lies with the panel physician.

A sample signature must be given to the post to keep on file to
periodically assess for fraud.

The panel physician must be available for a minimal of 46 weeks
out of 52 weeks a year. Any absence of greater than 2 weeks
requires notification to the post with the recommendation of a
physician to take over emergency duties during the absence of the
panel physician.

Knowledge of the stand-in physician needs to be convened to the
responsible post.

Medical requirements:





The panel physician should be adept in Primary care (pediatrics,
internal medicine, or family medicine) and have specialty training or
experience after graduating from medical school. Some countries
do not have residency programs; therefore, on-the-job training
must suffice. The panel physician must have specific competence in
the diagnosis and treatment of individuals with tuberculosis and
sexually transmitted diseases, and should be able to recognize
mental disorders.

The panel physician should identify a psychiatrist, if at all possible,
for the referral of any individual who appears to have a mental
disorder.

The panel physician should have reliable radiology (X-ray) and
serology (syphilis and HIV [human immunodeficiency virus]
laboratory) facilities identified. These can either be on the premises
or contracted out.

Specialty training in pediatrics is desired for posts with large
volumes of international adoptee cases.
The panel physician should have accumulated 4 years in practice
after their internship training is completed. Less than 4 years in
practice would mean a probation period would be established before
full panel physician status would be bestowed.

The panel physician must agree to participate in quality control
surveillance.

Facility requirements:

The Physical plant must be acceptable; it should be at a minimum a
well lit facility with an examination table, a blood pressure cuff,
instruments to examine the eyes and ears (ophthalmoscope and
otoscopy), and an eye chart (at 20 feet).

E-mail or fax communication capabilities identified by the panel
physician is highly desirable.

Examinations must be given within 10 working days of the date that
is asked for by the applicant.

The panel physician must be able to verify the identity of each
applicant and use fraud prevention measures at every step in the




process (at time of blood draw [phlebotomy], X-ray, vaccine
administration, and sputum collection).

Note: Where possible and the number of visa applicants
warrant two or more, panel physicians should be of both sexes
at every location.

II. Removal standards for panel physicians:

Panel Physicians can be removed for due cause (such as fraud, loss
of license, and criminal conviction). This would result in the
immediate loss of appointment as panel physician. Short of this,
consideration will be given to education and counsel the panel
physician in areas that are deficient.

Any complaint against a panel physician will be investigated by the
consular officer, and if possible by the Division of Quarantine of the
Centers for Disease Control and Prevention (DQ/CDC), and any
action resulting will be communicated to CA in Washington, DC
(post liaison) and DQ/CDC.

If the post decides they no longer wish to continue the relationship
with the panel physician, but does not have due cause to remove
the panel physician, they can either wait until the yearly time limit
on the panel physician agreement expires, then notify the panel
physician that their services will not be continued by the
embassy/consulate or give 90 days notice as noted in the panel
physician agreement above.

III. Maintenance of the appointment for a panel physician:

Renew the written agreement annually, usually every October 1
st
.

Check that there is a current full local license with no restrictions.

Check that there is a current official governmental certificate of
good standing, or equivalent, in the medical profession, if available
in the country where the physician has his/her license.

IV. The components of the medical examination, which should
be evaluated by the consular officer are:




1. The Panel Physicians Contact with the Applicant, Consisting of
Collecting Past Medical History and Performing a Physical
Examination;

2. Determining Vaccination History and Administering Vaccines, if
Necessary;

3. Collecting Blood Samples;

4. Testing for HIV Infection;

5. Testing for Syphilis;

6. Taking Chest X-Rays;

7. Collecting Sputum Samples, if Necessary; and

8. Microscopy Testing for Tuberculosis (TB).

V. Consular officers should consider three elements in their
evaluation of each of the components of the Medical
Examination for an Immigrant Visa:

1. Fraud Prevention Measures taken;

2. Reliability and Quality of the various components; and

3. Safety Measures taken while conducting the component, or
Education provided to the applicant.

The following methods are the proposed Ideal by the CDC for Fraud
Prevention measures by the panel physicians or their staff, the
laboratory directors or their staff, or the radiologists or their staff
during the medical examination process:

1. Verifying the applicants identity by comparing the person with
an official document that contains the applicants photograph
(such as a passport or official government issued identification
card).

2. Verifying the applicants signature by comparing a sample
signature with one from an official document containing their
signature.




3. The applicants have 3 recent photographs of themselves, with
the likenesses confirmed with official documents containing the
applicants photographs. One photo will be presented at the time of
the panel physician contact, and will be attached to the front of the
Medical Examination for Immigrant or Refugee Applicant
(DS-2053). The other two will be separately attached to the
requests for blood collection, and for Chest X-ray.

Consular officers at a minimum should collect or verify the following
information from the Panel Physician during any visit.

Name of panel physician:

(last) (first)

Address:

City:
Country:
Phone:
Fax: E-
mail:
Current CV: [ ] at consulate/embassy [ ] sent to CDC (Fax: 404-
639-2599)

1) Fraud Prevention Measures

a) Does the panel physician, or his/her staff, verify the identity of
the applicant comparing the applicant with a photograph
contained in an official document?
[ ] Yes [ ] No

b) Does the panel physician, or his/her staff, verify the signature of
the applicant using a sample produced in from of him/her with a
signature from an official document containing the applicants
signature?
[ ] Yes [ ] No

2) Reliability and Quality Measures

a) Can the panel physician readily show you his/her copy of the
Technical Instructions? [ ] Yes
[ ] No




b) Does the examination room have an exam table? [ ] Yes
[ ] No

c) Does the room have a blood pressure cuff? [ ] Yes
[ ] No

3) "Look at 20 Random Medicals":

a) Of the 20 1. Past Medical History sections, how many
worksheets have a Yes marked?

b) Of the 20 2. Physical Examination sections, how many
worksheets have BP (blood pressure) lines completed?


c) Of the 20 2. Physical Examination sections, how many
worksheets have a A (for abnormal) marked?

d) How many physicians at the site perform physical examinations?

If more than one, get current CVs from the other doctors. Keep
one copy at the consulate/embassy and send one copy to CDC
(Fax: 404-639-2599).

e) Are copies of the Medical History and Physical Examination
Worksheet (Form DS-3026) and three worksheets (Forms DS-
3024, 3025, and 3026) kept in a secure area?
[ ] Yes [ ]
No

f) Are the copies kept in an organized manner? [ ] Yes
[ ] No

4) Safety Measuresnone requested:

Additional comments on your evaluation of the panel physician:




1. Determining Vaccination History and Administering
Vaccines, if Necessary

Consular officers at a minimum should collect or verify the following
information from the person(s) determining the vaccine history and
administering the vaccines to applicants during any visit.

Name of person responsible of vaccinating the applicants (if
different than the panel physician):
(last)
(first)
Address:

City:
Country:
Phone:
Fax:
E-mail:

1) Fraud Prevention Measures
a) Does the panel physician, or his/her staff, verify the identity of
the applicant comparing the applicant with a photograph
contained in an official document?
[ ] Yes [ ] No

b) Does the panel physician, or his/her staff, verify the signature of
the applicant using a sample produced in from of him/her with a
signature from an official document containing the applicants
signature?
[ ] Yes [ ] No

c) Are there official personal vaccine records (or cards) used by the
government?
[ ] Yes [ ] No

d) What vaccine records (or cards) do the panel physician, or
his/her staff, accept?




2) Reliability and Quality Measures
a) Are the vaccines kept in a refrigerator onsite? [ ] Yes
[ ] No
If yes:




i) Is food kept in the refrigerator? [ ] Yes
[ ] No
ii) Is there a working thermometer in the refrigerator? [ ]
Yes [ ] No

iii) Is there a logbook for recording refrigerator temperatures?
[ ] Yes
[ ] No
(1) If yes, are there entries in the logbook? [ ]
Yes [ ] No

iv) Are there more than one power outage a month at the
facility?


If yes,
[ ] Yes
[ ] No
(1) Is there a backup generator? [ ]
Yes [ ] No
(2) Did you see the generator? [ ]
Yes [ ] No

If vaccines are stored onsite, examine 5 or more randomly identified
vaccines (preferably in different boxes or whatever way the site stores
the vaccines):
d) What percentage of vaccines is within expiration date (date is
located on side of vial, if examining 5 vials and 1 vial is expired
20% of the vials are expired)?




3) Safety Measures taken and Education provided applicants
a) Are disposal needles and syringes used? [ ] Yes
[ ] No

b) Are needles recapped after being used? [ ] Yes
[ ] No

c) Are the used needles and syringes disposed of in the general
trash (or garbage)? [ ] Yes [ ] No

d) Is a copy of the Vaccination Documentation Worksheet (DS-
3025) given to the applicant?
[ ] Yes [ ] No




e) How many copies of the Vaccination Documentation
Worksheet (DS-3025) are given to the applicant?


Additional comments on your evaluation of the vaccination component:











2. Collecting Blood Samples

Consular officers at a minimum should collect or verify the following
information from the person(s) collecting blood samples from
applicants during any visit.

Name of person responsible of blood sampling the applicants (if
different from the panel physician or director of the laboratory):
(last)
(first)
If the same, which: [ ] panel physician [ ] lab director
Address:

City:
Country:
Phone:
Fax:
E-mail:

1) Fraud Prevention Measures
a) Does the panel physician, or his/her staff (or lab director or
his/her staff), verify the identity of the applicant comparing the
applicant with a photograph contained in an official document?
[ ] Yes [ ] No

b) Does the panel physician, or his/her staff (or lab director or
his/her staff), verify the signature of the applicant using a
sample produced in from of him/her with a signature from an
official document containing the applicants signature?
[ ] Yes [ ] No




c) Is a code number used only on the blood tube (not the
applicants name)?
[ ] Yes [ ] No

2) Reliability and Quality Measures
a) Are there dedicated blood drawing stations? [ ] Yes [ ] No

b) Who does the blood drawing? [ ] panel physician [ ] lab
director [ ] nurse
[ ] lab technician [ ] other, specify:


3) Safety Measures
a) Are gloves used? [ ] Yes [ ] No
b) Are disposal needles used? [ ] Yes [ ] No

c) Are needles recapped after being used?
[ ] Yes [ ] No

d) Are the used needles disposed of in the general trash (or
garbage)? [ ] Yes [ ] No

Additional comments on your evaluation of the blood drawing:











3. Testing for HIV Infection

Consular officers at a minimum should collect or verify the following
information from the HIV laboratory for applicants during any visit.

Name of laboratory director:
(last)
(first)
Address:

City:
Country:




Phone:
Fax:
E-mail:

1) Fraud Prevention Measuresnone requested

2) Reliability and Quality Measures
a) If the 1
st
test is positive, is a 2
nd
test done?
[ ] Yes [ ] No
b) If the 2
nd
test is positive, is a 3
rd
test done?
[ ] Yes [ ] No

c) For the 1
st
test,
i) What is the name?

ii) What is the brand?


d) For the 2
nd
test,
i) What is the name?

ii) What is the brand?


e) For the 3
rd
test,
i) What is the name?

ii) What is the brand?


f)

Are any of these tests kept in a refrigerator?

[ ] Yes [ ] No
If yes:
i) Is food kept in the refrigerator? [ ] Yes [ ] No
ii) Is there a working thermometer in the refrigerator?
[ ] Yes [ ] No

iii) Is there a logbook for recording refrigerator temperatures?
[ ] Yes [ ] No
(1) If yes, are there entries in the logbook?
[ ] Yes [ ] No

iv) Are there more than one power outage a month at the
facility?





No
If yes,
(1) Is there a backup generator?
[ ] Yes [ ] No
(1) Did you see the generator?
[ ] Yes [ ] No
[ ] Yes [ ]

Examine 3 or more randomly identified HIV tests for the 1
st
, 2
nd
, and
3
rd
tests, regardless of where they are stored (preferably in different
boxes or whatever way the site stores the vaccines):

e) What percentage of 1
st
tests is within expiration date (date is
located on side of box, if examining 3 tests and 1 is expired
33% are expired)?




h) What percentage of 2
nd
tests is within expiration date (date is
located on side of box, if examining 3 tests and 1 is expired
33% are expired)?




i) What percentage of 3
rd
tests is within expiration date (date is
located on side of box, if examining 3 tests and 1 is expired
33% are expired)?




3) Safety Measures
a) Are gloves used? [ ] Yes [ ] No

b) Are white laboratory coats used? [ ] Yes [ ] No

c) Is laboratory waste disposed of in the general trash (or
garbage)?
[ ] Yes [ ] No
Additional comments on your evaluation of the HIV testing:








4. Testing for Syphilis

Consular officers at a minimum should collect or verify the following
information from the syphilis laboratory for applicants during any visit.

Name of laboratory director (if different that the lab director for the
HIV testing):
(last)
(first)
Address:

City:
Country:
Phone:
Fax:
E-mail:

1) Fraud Prevention Measuresnone requested

2) Reliability and Quality Measures

a) If the 1
st
test is positive, is a 2
nd
test done?
[ ] Yes [ ] No
b) If the 2nd test is positive, is a 3rd test done?
[ ] Yes [ ] No

c) For the 1
st
test,
i) What is the name?

ii) What is the brand?


d) For the 2
nd
test,
i) What is the name?

ii) What is the brand?


e) For the 3rd test,
i) What is the
name?




ii) What is the
brand?

f) Are any of these tests kept in a refrigerator?
[ ] Yes [ ] No
If yes:
i) Is food kept in the refrigerator?
[ ] Yes [ ] No
ii) Is there a working thermometer in the refrigerator?
[ ] Yes [ ] No
iii) Is there a logbook for recording refrigerator temperatures?
[ ] Yes [ ] No
If yes, are there entries in the logbook?
[ ] Yes [ ] No

iv) Are there more than one power outage a month at the
facility?

If yes,
(1) Is there a backup generator?
[ ] Yes [ ] No
(2) Did you see the generator?
[ ] Yes [ ] No
[ ] Yes [ ] No

Examine 3 or more randomly identified syphilis tests for the 1
st
and 2
nd
tests (preferably in different boxes or whatever way the site stores the
vaccines):

g) What percentage of 1
st
tests is within expiration date (date is
located on side of box, if examining 3 tests and 1 is expired33%
are expired)?




h) What percentage of 2
nd
tests is within expiration date (date is
located on side of box, if examining 3 tests and 1 is expired33%
are expired)?




i) Is the temperature of the room where the syphilis testing is done
between 65 and 85 Fahrenheit?
[ ] Yes [ ] No




3) Safety Measures

a) Are gloves used? [ ] Yes [ ] No

b) Are white laboratory coats used? [ ] Yes [ ] No

c) Is laboratory waste disposed of in the general trash (or
garbage)? [ ] Yes [ ] No

Additional comments on your evaluation of the syphilis testing:











5. Taking Chest X-Rays

Consular officers at a minimum should collect or verify the following
information from the person(s) taking chest X-rays of applicants
during any visit.

Name of radiologist:
(last)
(first)
Address:

City:
Country:
Phone:
Fax:
E-mail:

1) Fraud Prevention Measures

a) Does the radiologist, or his/her staff, verify the identity of the
applicant comparing the applicant with a photograph contained in
an official document?
[ ] Yes [ ] No

b) Does the radiologist, or his/her staff, verify the signature of the
applicant using a sample produced in from of him/her with a




signature from an official document containing the applicants
signature? [ ] Yes [ ] No

Does the applicant have direct access to the chest X-ray at any time:

a) While he/she is at the radiology facility?
[ ] Yes [ ] No

b) After the film is read and before it is taken to the
embassy/consulate?
[ ] Yes [ ] No

Note: Access to film that is first placed in a sealed envelop with
a signature written across the flap and then double sealed with
tape is not considered direct assess.

Examine 10 or more randomly identified chest X-rays taken of
applicants:
c) Is the applicants name placed on the film in a permanent
manner (as a part of the image or inedible ink)?
[ ] Yes [ ] No

2) Reliability and Quality Measures

a) Is the X-ray machine under a service contract?
[ ] Yes [ ] No
b) If yes, were you shown the last record of the service?
[ ] Yes [ ] No

c) What is the make and production country of the X-ray machine?







d) What is the age of the X-ray machine?

e) What is the age of the X-ray tube?

f) Does a machine process the film (it maybe done manually)?
[ ] Yes [ ] No
If yes,
i) What is the make and production country of the film-
processing machine?









ii) What is the age of the film-processing machine?


g) Is the film used to take chest X-rays of applicants 14in x 17in
(35mm x 43mm) or 17in x 17in (43in x 43in)?
[ ] Yes [ ] No
h)
3) Safety Measures
a) Are lead apron shields available at the radiology facility?
[ ] Yes [ ] No
b) If yes, who is given a lead shield (check all that apply)?
[ ] radiology technicians,
[ ] women who look pregnant,
[ ] women who say they maybe pregnant,
[ ] women of childbearing age.

c) Do the radiology technicians wear radiation badges?
[ ] Yes [ ] No

Additional comments on your evaluation of the chest X-rays:











6. Collecting Sputum Samples, if Necessary

Consular officers at a minimum should collect or verify the following
information from the sputum collection site for applicants during any
visit.

Name of laboratory director (if different from the panel physician or
director of the HIV laboratory):
(last)
(first)
If the same, which: [ ] panel physician [ ] lab director




Address:

City:
Country:
Phone:
Fax:
E-mail:

1) Fraud Prevention Measures

a) Does the panel physician, or his/her staff (or lab director or
his/her staff), verify the identity of the applicant comparing the
applicant with a photograph contained in an official document?
[ ] Yes [ ] No

b) Does the panel physician, or his/her staff (or lab director or
his/her staff), verify the signature of the applicant using a
sample produced in from of him/her with a signature from an
official document containing the applicants signature?
[ ] Yes [ ]
No

c) Is a code number used only on the sputum cup (not the
applicants name)?

2) Reliability and Quality Measures
[ ] Yes [ ] No

a) Is the sputum sample collected under direct supervision of staff?
[ ] Yes [ ] No
b) What time of day is the sputum collected?
[ ] anytime
[ ] in the mornings sometimes
[ ] in the mornings only
[ ] in the afternoons sometimes
[ ] in the afternoons only
c) Is the sputum collected at the panel or lab site?
[ ] Yes [ ] No
d) Is the sputum collection cup clear?
[ ] Yes [ ] No

3) Safety Measures




Describe the location where the sputum sample is collected
(including details such as if only applicants or staff are around)?








7. Microscopy Testing for Tuberculosis (TB)

Consular officers at a minimum should collect or verify the following
information from the TB microscopy laboratory for applicants during
any visit.

Name of laboratory director (if different from director of the HIV
laboratory):
(last)
(first)
Address:

City:
Country:
Phone:
Fax:
E-mail:

1) Fraud Prevention Measuresnone requested

2) Reliability and Quality Measures
a) Are new slides used for each specimen? [ ] Yes [ ] No

b) Examine 10 or more randomly identified microscope slides with
specimens:

c) What percentage of the slides is labeled with a name or number?


d) Are commercial or homemade stains (liquids of blue, purple, or
red color) used?
[ ] commercial stains [ ] homemade stains
e) If commercial stains, are the stains in any bottles with an
expired date?
[ ] Yes [ ] No
f) Are the stains in brown bottles? [ ] Yes [ ] No




g) Are the stains stored away from sunlight?
[ ] Yes [ ] No

h) Is there a logbook with the results of reading the slides?
[ ] Yes [ ] No

i) Does the microscope light work (have the technician turn the
microscope on and show you that the light is sent to a slide)?
[ ] Yes [ ] No

3) Safety Measuresnone requested

Additional comments on your evaluation of the TB microscopy lab:




Internet Resources for Consular Staff


International Health and Travel

http://www.cdc.gov/travel

Health information and recommendations for international travelers,
including the following areas:

Disease risks in specific travel destinations
Disease specific information and travel and prevention
recommendations
Recommendations for travel with children
Vaccinations
Safe food and water
Outbreaks of concern for the international traveler
Also included in the site:
-Travelers Health Information Hotline: voice: 877-FYI-TRIP, and for
requesting information by fax: 888-232-3299

-Electronic copy of the Yellow Book, Health Information for
International Travelers http://www.cdc.gov/travel/yb/)


Tuberculosis

http://www.cdc.gov/nchstp/tb/faqs/qa.htm

Information and resource material on tuberculosis infection and
disease, including answers to frequently asked questions about
tuberculosis.


HIV/AIDS

http://www.cdc.gov/hiv/pubs/facts.htm

Information and resource material about HIV/AIDS, including HIV
testing, transmission, prevention, and vaccine research.





Vaccinations
http://www.cdc.gov/nip
Information and resource material on vaccines, vaccine
recommendations, vaccine information statements, vaccine fact
sheets, vaccine safety issues, and answers to frequently asked
questions about vaccinations.

Included at this website under http://www.cdc.gov/nip are several
important resources:
Quick Reference Materials
-Immunization Schedules for Adults and Children
-VISs (Vaccine Information Statements)*
- ACIP Statements (Recommendations of the Advisory Committee
on Immunization Practices)
* for Vaccine Information Statements translated into other languages,
see website at http://www.immunize.org/vis/

Publications
-Epidemiology and Prevention of Vaccine-Preventable
Diseases textbook, the Pink Book
Important information on overseas vaccination information is
contained in the appendices of this book
under the following sections:

Foreign Terms for Vaccines and Vaccine-Preventable Diseases
Routine Childhood Vaccines (by Country)


Leprosy



http://www.who.int/lep

Information and resource materials about leprosy: global distribution,
epidemiology, diagnosis, treatment and elimination of the disease.






9 FAM 42.67
EXECUTION OF APPLICATION,
REGISTRATION, AND FINGERPRINTING
(CT:VISA-1673; 08-26-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.67 RELATED STATUTORY
PROVISION
(CT:VISA-986; 07-31-2008)

See INA 105(b) (8 U.S.C. 1105(b)), INA 221(b) (8 U.S.C. 1201(b)), INA
222(e) (8 U.S.C. 1202(e)), and Executive Order No. 10718 of June 27, 1957
(3 CFR 382), in part:

INA 105(b)
b. (1) The Attorney General and the Director of the Federal Bureau of
Investigation shall provide the Department of State and the
Service access to the criminal history record information contained
in the National Crime Information Center's Interstate Identification
Index (NCIC-III), Wanted Persons File, and to any other files
maintained by the National Crime Information Center that may be
mutually agreed upon by the Attorney General and the agency
receiving the access, for the purpose of determining whether o r
not a visa applicant or applicant for admission has a criminal
history record indexed in any such file.
(2) Such access shall be provided by means of extracts of the
records for placement in the automated visa lookout or other
appropriate database, and shall be provided without any fee or
charge.
(3) The Federal Bureau of Investigation shall provide periodic
updates of the extracts at intervals mutually agreed upon with the
agency receiving the access. Upon receipt of such updated
extracts, the receiving agency shall make corresponding updates
to its database and destroy previously provided extracts.
(4) Access to an extract does not entitle the Department of State to
obtain the full content of the corresponding automated criminal
history record. To obtain the full content of a criminal history
record, the Department of State shall submit the applicant's




fingerprints and any appropriate fingerprint processing fee
authorized by law to the Criminal Justice Information Services
Division of the Federal Bureau of Investigation.
INA 221(b)

b. Each alien who applies for a visa shall be registered in connection with his
application, and shall furnish copies of his photograph signed by him for
such use as may be by regulations required. The requirements of this
subsection may be waived in the discretion of the Secretary of State in
the case of any alien who is within that class of nonimmigrants
enumerated in sections 101(a)(15)(A) and 101(a)(15)(G) or in the case
of any alien who is granted a diplomatic visa on a diplomatic passport or
on the equivalent thereof.

INA 222(e)

e. Except as may be otherwise prescribed by regulations, each application
for an immigrant visa shall be signed by the applicant in the presence of
the consular officer, and verified by the oath of the applicant
administered by the consular officer. The application for an immigrant
visa, when visaed by the consular officer, shall become the immigrant
visa. The application for a nonimmigrant visa or other documentation as a
nonimmigrant shall be disposed of as may be by regulations prescribed.
The issuance of a nonimmigrant visa shall, except as may be otherwise
by regulations prescribed, be evidenced by a stamp, or other placed in
the alien's passport.

Executive Order No. 10718, in part

Section 1 There is hereby delegated to the Secretary of State the authority
vested in the President by section 1745 of the Revised Statutes of the United
States 22 U.S.C. 1201 to prescribe, from time to time, the rates or tariffs of
fees to be charged for official services, and to designate what shall be
regarded as official services, besides such as are expressly declared by law,
in the business of the several embassies, legations, and consulates, and to
adapt the same, by such differences as may be necessary or proper, to each
embassy, legation, or consulate.


9 FAM 42.67 RELATED REGULATORY
PROVISION
(CT:VISA-1673; 08-26-2011)

See 22 CFR 42.67




Section 42.67 Execution of application, registration, and
fingerprinting.
(a) Execution of visa application (1) Application fee. A fee is prescribed for
each application for an immigrant visa. It shall be collected prior to the
execution of the application and a receipt shall be issued.
(2) Oath and signature on Form DS230. The applicant shall be required to
read the Form DS230, Application for Immigrant Visa and Alien
Registration, when it is completed, or it shall be read to the applicant in the
applicant's language, or the applicant shall otherwise be informed of its full
contents. Applicants shall be asked whether they are willing to subscribe
thereto. If the applicant is not willing to subscribe to the application unless
changes are made in the information stated therein, the required changes
shall be made. The application shall then be sworn to or affirmed and signed
by or on behalf of the applicant before a consular officer, or a designated
officer of the American Institute of Taiwan, who shall then sign the
application over the officer's title.
(3) Oath and signature on Form DS260. The applicant shall be required to
read the Form DS260, Electronic Application for Immigrant Visa and Alien
Registration, when it has been completed, or it shall be read to the applicant
in the applicant's language, or the applicant shall otherwise be informed of
its full contents, before the applicant electronically signs and submits the
application to the Department. At the time of the applicant's interview the
applicant shall be asked whether they are willing to subscribe thereto to the
information provided on Form DS260. If the alien is not willing to subscribe
to the application unless changes are made in the information stated therein,
the required changes shall be made. The application shall then be sworn to
or affirmed and signed, biometrically, by or on behalf of the applicant before
a consular officer, or a designated officer of the American Institute of
Taiwan, who shall then electronically sign the application.
(b) Registration. The alien shall be considered to be registered for the
purposes of INA 221(b) and 203(g) upon the filing of Form DS230 or Form
DS260, when duly executed, or the transmission by the Department to the
alien of a notification of the availability of an immigrant visa, whichever
occurs first.
(c) Fingerprinting. Every applicant for an immigrant visa must furnish
fingerprints prior to the execution of Form DS230 or Form DS260.
[75 FR 45476, Aug. 3, 2010]




9 FAM 42.67
NOTES
(CT:VISA-1893; 09-19-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.67 N1 REGISTRATION FOR
IMMIGRANT VISA
(CT:VISA-1893; 09-19-2012)
An applicant should be considered registered for immigration to the United States
upon the execution of the Form DS-230, Application for Immigrant Visa and Alien
Registration, or Form DS-260, Online Application for Immigrant Visa and Alien
Registration, and the payment of the prescribed fee.


9 FAM 42.67 N2 OATH AND SIGNATURE
(CT:VISA-1893; 09-19-2012)
a. Upon completing Form DS-230, Application for Immigrant Visa and Alien
Registration, the applicant must read the completed form, or, if the applicant is
unable to read, he or she must be informed of the contents therein. The alien
must be asked to subscribe to the information therein. If the alien is unwilling
to subscribe to the information unless changes are made, the required changes
must be made. The application must be subscribed to or affirmed and signed
by or on behalf of the applicant before a consular officer. If the applicant is
illiterate, or is otherwise unable to sign the application, the consular officer may
witness the applicant placing his or her mark in the space provided for
signature on Form DS-230.
b. Upon completing Form DS-260, the applicant must read the completed form,
or, if the applicant is unable to read, he or she must be informed of the
contents therein. The applicant must be asked to subscribe to information he
or she submitted electronically. If the alien is unwilling to subscribe to the
information unless changes are made, the required changes must be made
electronically to the CCD Online IV Application Web. You should advise the
applicant that all changes will be become a part of the official record associated
with his or her application file. The application must be subscribed to or
affirmed and biometrically signed by or on behalf of the applicant before a
consular officer. You must have the applicant recite the following
contemporaneously with the biometric signature: By submitting my
fingerprint, I, (name) certify under penalty of perjury both that I have read and


understood the questions in my immigrant visa application and that all
statements that appear in my immigrant visa application have been made by
me and are true and complete to the best of my knowledge and belief.
Furthermore, I certify under penalty of perjury that all statements that I have
made in this interview are true and complete to the best of my knowledge and
belief.


9 FAM 42.67 N3 FAILURE OF APPLICATION TO
COMPLY WITH INA
(CT:VISA-1893; 09-19-2012)
See 9 FAM 40.201 Related Statutory Provisions.


9 FAM 42.67 N4 FINGERPRINTING

9 FAM 42.67 N4.1 Fingerprint Requirement
(CT:VISA-1893; 09-19-2012)
a. All immigrant visa (IV) applicants age 14 and above are required to submit
biometric fingerprints electronically through immigrant visas overseas (IVO).
There is no upper age limit for IV applicants. (See Appendix L, 100 for detailed
procedures.)
b. In countries where there is no Department of Defense (DOD) or Department of
Homeland Security (DHS) presence, consular officers should provide fingerprint
services for residents in their district applying for expeditious naturalization or
adoption. (See 9 FAM Appendix N, 101 a.)
c. The post may use Form FD-258, Applicant Fingerprint Card (with self-addressed
envelopes).

9 FAM 42.67 N4.2 Proper Fingerprinting
(CT:VISA-1893; 09-19-2012)
The consular officer in charge of visa operations at each post must instruct
personnel taking fingerprints to follow closely the instructions on the reverse of the
fingerprint chart and to familiarize themselves thoroughly with the correct
fingerprinting techniques described by the Federal Bureau of Investigation (FBI).
(See 9 FAM 42.67 Exhibit I, Recording Legible Fingerprints.) The consular officer
must also personally check the fingerprint cards from time to time to ensure that
such techniques are applied. If fingerprints are defective, the consular officer
must reject them and require that the prints be retaken. This is costly and time-
consuming for the post as well as inconvenient for the alien.


9 FAM 42.67 N4.3 Fingerprinting Fees
(CT:VISA-1893; 09-19-2012)
Posts should collect a fee for the taking of fingerprints when the fee is prescribed
by the Schedule of Fees for Consular Services, found at 22 CFR 22.1.




9 FAM 42.67
PROCEDURAL NOTES
(CT:VISA-1893; 09-19-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.67 PN1 EXECUTING THE IMMIGRANT
VISA (IV) APPLICATION
(CT:VISA-1893; 09-19-2012)
When the consular officer is satisfied that the application, including any necessary
corrections, represents the applicants complete answers to the questions asked,
the applicant must sign the application before the officer. The officer must then
administer the oath, sign the application, and indicate consular title in the
designated place. The applicant must sign the way the applicant normally signs in
the script or characters of the applicants own language. If the applicants normal
signature is in other than the Roman alphabet and the applicant is capable of it,
the applicant may also add the signature in the Roman alphabet.


9 FAM 42.67 PN2 ADMINISTERING OATH OR
AFFIRMATION
(CT:VISA-1893; 09-19-2012)
a. The consular officer must stand, raise the right hand, and ask the applicant to
do the same. The officer must then repeat the following words:
Do you solemnly swear that the statements made by you in this
application and interview are true and correct to the best of your
knowledge, so help you God? The applicant must swear, I do.
b. In administering an affirmation, the procedure is the same but the words are
varied as follows:
Do you sincerely affirm that the statements made by you in this
application and interview are true and correct to the best of your
knowledge?


9 FAM 42.67 PN3 IF AN ADVISORY OPINION
(AO) IS REQUIRED


(CT:VISA-1893; 09-19-2012)
If an advisory opinion (AO) is to be obtained from the Department in a particular
case, the consular officer shall refuse the visa under INA 221(g), retaining Form
DS-230 Parts I and II, Application for Immigrant Visa and Alien Registration, and
each relevant document for the A-Z file. Post must include the file copy of the AO
request or, if the request is classified, cross-reference the file copy. In a case
where an advisory opinion (AO) is being sought, the application fee is valid until a
final decision is reached and post must not charge a new application fee. (See 9
FAM 42.71 N2.1-2 (5).)


9 FAM 42.67 PN4 FINAL ACTION

9 FAM 42.67 PN4.1 Issuing or Refusing Visa
(CT:VISA-1893; 09-19-2012)
Once an application has been executed, the consular officer must either issue the
visa or refuse it. A consular officer cannot temporarily refuse, suspend, or hold
the visa for future action. If the consular officer refuses the visa, he or she must
inform the applicant of the provisions of law on which the refusal is based, and of
any statutory provision under which administrative relief is available. (See 9 FAM
42.81 Procedural Notes for the refusal procedure and 9 FAM 40.6 Exhibit I for
waiver relief.)

9 FAM 42.67 PN4.2 Issuance Procedures
(CT:VISA-1893; 09-19-2012)
See 9 FAM 42.73 Related Statutory Provisions and 9 FAM 42.73 Notes.

9 FAM 42.67 PN4.3 Visa Refusals
(CT:VISA-1893; 09-19-2012)
See 9 FAM 42.81 Related Statutory Provisions and 9 FAM 42.81 Notes.


9 FAM 42.67 PN5 TERMINATING REGISTRATION
UNDER INA 203(G)
(CT:VISA-1893; 09-19-2012)
See 9 FAM 42.83 Related Statutory Provisions.


9 FAM 42.67 PN6 FINGERPRINTING VISA
APPLICANTS
(CT:VISA-1893; 09-19-2012)
See 9 FAM Appendix L for information on fingerprinting.






9 FAM 42.67 EXHIBIT I
RECORDING LEGIBLE FINGERPRINTS
(CT:VISA-1528; 09-22-2010)
(Office of Origin: CA/VO/L/R)

See Recording Legible Fingerprints on the Federal Bureau of Investigations
Web site.






9 FAM 42.68
INFORMAL EVALUATION OF FAMILY
MEMBERS IF PRINCIPAL APPLICANT
PRECEDES THEM
(CT:VISA-1785; 12-13-2011)
(Office of Origin: CA/VO/L/R)

(a) Preliminary Determination of Visa Eligibility

If a principal applicant proposes to precede the family to the United States,
the consular officer may arrange for an informal examination of the other
members of the principal applicants family in order to determine whether
there exists at that time any mental, physical, or other ground of ineligibility
on their part to receive a visa.

(b) When Family Member Ineligible

In the event the consular officer finds that any member of such family would
be ineligible to receive an immigrant visa, the principal applicant shall be
informed and required to acknowledge receipt of this information in writing.

(c) No Guarantee of Future Eligibility

A determination in connection with an informal examination that an alien
appears to be eligible for a visa carries no assurance that the alien will be
issued an immigrant visa in the future. The principal applicant shall be so
informed and required to acknowledge receipt of this information in writing.
The question of visa eligibility can be determined definitively only at the time
the family member applies for a visa.






9 FAM 42.68 NOTES
(CT:VISA-695; 02-09-2005)
(Office of Origin: CA/VO/L/R)


9 FAM 42.68 N1 STEPS IN PRELIMINARY
DETERMINATION OF ELIGIBILITY OF FAMILY
MEMBER

9 FAM 42.68 N1.1 Clearance and Background
Check
(TL:VISA-3 08-30-87)
If an informal examination of a member of a family is arranged as provided
for in 22 CFR 42.68, the consular officer should obtain clearances from other
posts and any background checks necessary to determine visa eligibility.

9 FAM 42.68 N1.2 Statement by Principal Applicant
Re Ineligibility of Family Member
(CT:VISA-695; 02-09-2005)
In the event any member of the family is found to be potentially ineligible to
receive an immigrant visa, the principal applicant is to be so informed. A
principal applicant wishing to pursue the application MUST provide an
acknowledgement of notification of the family members potential ineligibility
for an immigrant visa. (See 9 FAM 42.68 PN1.)

9 FAM 42.68 N1.3 Principal Applicant Informed of
Waiver Possibility
(CT:VISA-695; 02-09-2005)
If the potentially ineligible family member might benefit under the provisions
of INA 212(g), (h), or (i), the principal applicant should be so informed and
advised that the authority to invoke these sections is discretionary with
Department of Homeland Security (DHS) and that no advance assurance can
be given that the admission of the principal applicants spouse or child will
be authorized by DHS.






9 FAM 42.68
PROCEDURAL NOTES
(CT:VISA-699; 02-09-2005)
(Office of Origin: CA/VO/L/R)


9 FAM 42.68 PN1 STATEMENT
ACKNOWLEDGING VISA INELIGIBILITY OF
FAMILY MEMBER TO BE FILED UNDER NAME
OF INELIGIBLE FAMILY MEMBER
(CT:VISA-699; 02-09-2005)
The acknowledgment of notification of family members potential ineligibility
for an immigrant visa required by 9 FAM 42.68 N1.2 is to be filed under the
name of the ineligible family member for reference purposes in the event the
family member should subsequently submit a visa application. The
statement should be stamped for destruction at the end of five years.


9 FAM 42.68 PN2 PROCEDURE IF CHILD
ACCOMPANIED BY ONLY ONE PARENT OR IF
ALIEN SUSPECTED OF ABANDONING FAMILY
(TL:VISA-3; 08-30-1987)
If a child is immigrating to the United States with one parent and the other
parent is remaining abroad, the consular officer should ask the
accompanying parent whether any legal impediment might exist preventing
the departure of the child. If the response is inconclusive the consular
officer should defer final action on the application and direct an informal
inquiry to the local authorities in an effort to learn whether a violation of
local law might be involved. If so, the local authorities would probably take
action to prevent the childs departure by lifting the childs travel document
or by other measures. If the local authorities do not take such action within
a reasonable time, the officer should proceed with the consideration of the
visa application. The same procedure should be followed if the officer has
reason to believe that the family of an applicant is being abandoned.






9 FAM 42.71
AUTHORITY TO ISSUE VISAS; VISA FEES
(CT:VISA-985; 07-29-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.71 RELATED STATUTORY
PROVISION
(CT:VISA-985; 07-29-2008)

See INA 101(a)(16) (8 U.S.C. 1101(a)(16)), INA 104 (8 U.S.C. 1104), INA
221(a) (8 U.S.C. 1201(a)), INA 224 (8 U.S.C. 1204), INA 243(d) (8 U.S.C.
1253(d)) Sec. 237 of Pub. L. 106-113. [Amended by sec. 307(a) of Pub. L.
104-208, Sept 30, 1996] Executive Order No. 10718 of June 27, 1957 (3
CFR 382), in part:

Section 1 There is hereby delegated to the Secretary of State the authority
vested in the President by section 1745 of the Revised Statutes of the United
States (22 U.S.C. 1201) to prescribe, from time to time, the rates or tariffs
of fees to be charged for official services, and to designate what shall be
regarded as official services, besides such as are expressly declared by law,
in the business of the several embassies, legations, and consulates, and to
adapt the same, by such differences as may be necessary or proper, to each
embassy, legation, or consulate.

INA 101(a)(16)

(16) The term immigrant visa means an immigrant visa required by
this chapter and properly issued by a consular officer at his office
outside of the United States to an eligible immigrant under the
provisions of this chapter.

INA 104

a. The Secretary of State shall be charged with the administration and the
enforcement of the provisions of this Act and all other immigration and
nationality laws relating to (1) the powers, duties and functions of
diplomatic and consular officers of the United States, except those
powers, duties and functions conferred upon the consular officers relating
to the granting or refusal of visas; (2) the powers, duties and functions
of the Administrator; and (3) the determination of nationality of a person




not in the United States. He shall establish such regulations; prescribe
such forms of reports, entries and other papers; issue such instructions;
and perform such other acts as he deems necessary for carrying out such
provisions. He is authorized to confer or impose upon any employee of
the United States, with the consent of the head of the department or
independent establishment under whose jurisdiction the employee is
serving, any of the powers, functions, or duties conferred or imposed by
this Act or regulations issued thereunder upon officers or employees of
the Department of State or of the American Foreign Service.

b. The Secretary of State shall designate an Administrator who shall be a
citizen of the United States, qualified by experience. The Administrator
shall maintain close liaison with the appropriate committees of Congress
in order that they may be advised regarding the administration of this
Act by consular officers. The Administrator shall be charged with any and
all responsibility and authority in the administration of this Act which are
conferred on the Secretary of State as may be delegated to the
Administrator by the Secretary of State or which may be prescribed by
the Secretary of State, and shall perform such other duties as the
Secretary of State may prescribe.

c. Within the Department of State there shall be a Passport Office, a Visa
Office, and such other offices as the Secretary of State may deem to be
appropriate, each office to be headed by a director. The Directors of the
Passport Office and the Visa Office shall be experienced in the
administration of the nationality and immigration laws.

d. The functions heretofore performed by the Passport Division and the Visa
Division of the Department of State shall hereafter be performed by the
Passport Office and the Visa Office, respectively.

e. There shall be a General Counsel of the Visa Office, who shall be
appointed by the Secretary of State and who shall serve under the
general direction of the Legal Adviser of the Department of State. The
General Counsel shall have authority to maintain liaison with the
appropriate officers of the Service with a view to securing uniform
interpretations of the provisions of this Act.
INA 221(a)


a. (1) Under the conditions hereinafter prescribed and subject to the
limitations prescribed in this Act or regulations issued thereunder, a
consular officer may issue
(A) to an immigrant who has made proper application therefore, an
immigrant visa which shall consist of the application provided for in




section 222, visaed by such consular officer, and shall specify the
foreign state, if any, to which the immigrant is charged, the
immigrant's particular status under such foreign state, the preference,
immediate relative, or special immigrant classification to which the
alien is charged, the date on which the validity of the visa shall expire,
and such additional information a s may be required; and (B) 1a/ to a
nonimmigrant who has made proper application therefore, a
nonimmigrant visa, which shall specify the classification under section
101(a)(15) of the nonimmigrant, the period during which the
nonimmigrant visa shall be valid, and such additional information as
may be required.
(2) The Secretary of State shall provide to the Service an electronic
version of the visa file of each alien who has been issued a visa to
ensure that the data in that visa file is available to immigration
inspectors at the United States ports of entry before the arrival of
the alien at such a port of entry.
INA 224

Consular officer may, subject to the limitations provided in section 221,
issue an immigrant visa to a special immigrant or immediate relative as such
upon satisfactory proof, under regulations prescribed under this Act, that the
applicant is entitled to special immigrant or immediate relative status.

INA 223(d)

d. Upon the return of the alien to the United States the permit shall be
presented to the immigration officer at the port of entry, and upon the
expiration of its validity, the permit shall be surrendered to the Service.


9 FAM 42.71 RELATED REGULATORY
PROVISION
(CT:VISA-985; 07-29-2008)

See 22 CFR 42.71




9 FAM 42.71
NOTES
(CT:VISA-1944; 11-16-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.71 N1 SCHEDULE OF FEES
(TL:VISA-538; 05-14-2003)
The Secretary of State has prescribed a fee for the processing and issuance of the
immigrant visa. An additional application fee is charged for persons selected for
the Diversity Program. The fees are specified in 22 CFR 22.1.


9 FAM 42.71 N2 COLLECTION OF FEES

9 FAM 42.71 N2.1 Collecting the Processing Fee
(CT:VISA-1857; 08-14-2012)
a. A single fee is charged combining the costs of processing and issuance of the
immigrant visa. An individual registered for immigrant visa processing at a post
designated for this purpose by the Deputy Assistant Secretary for Visa Services
must pay the processing fee. The fee must be paid when the individual is
notified that a visa is expected to become available in the near future and he or
she is requested to obtain the supporting documentation needed to apply
formally for a visa.
b. For cases processed through the National Visa Center (NVC), this fee will be
collected during initial processing by NVC. Posts will collect the visa processing
fee only for those cases in which the petition is filed at post or in which the visa
file otherwise indicates that the fee has not yet been collected.

9 FAM 42.71 N2.2 No Second Processing Fee
(CT:VISA-1857; 08-14-2012)
Do not collect a second processing fee if the:
(1) Previously refused alien is issued a visa on the basis of the relief provided
in INA 212(g), (h) or (i), or any similar provision of law or if evidence is
presented to overcome the refusal within one year of the date of refusal;
(2) Alien requests a reopening of the case within one year from the date the
visa was originally refused [see 22 CFR 42.81(e)];


(3) Visa was previously refused because the medical examination disclosed
that the alien might be ineligible under INA 212(a)(1) and the examining
physician requested that the applicant undergo follow-up examinations or
tests prior to making a final decision;
(4) Visa was previously refused solely for the absence of a document which is
available only from a U.S. Government agency, and if it is apparent that
the failure of the alien to present the document was due to the U.S.
Government agencys delay in providing it;
(5) Final decision on the application is delayed pending the receipt of an
advisory opinion from the Department or the completion of investigations
initiated by the Department or the post; or
(6) Original refusal was based on a consular error.


9 FAM 42.71 N3 REFUND OF IMMIGRANT VISA
PROCESSING FEE
(CT:VISA-1944; 11-16-2012)
A fee collected for the processing of an immigrant visa application is refundable
only if the principal officer of a post or the officer in charge of a consular section
determines that the application was not adjudicated as a result of action by the
U.S. Government over which the alien had no control and for which the alien was
not responsible, that precluded the applicant from benefiting from the processing.


9 FAM 42.71 N4 DIVERSITY VISA FEES
(CT:VISA-1944; 11-16-2012)
See 9 FAM 42.33 N10 and subsections.


9 FAM 42.71 N5 APPLICANT WITH POSSIBLE
CLAIM TO U.S. CITIZENSHIP
(CT:VISA-1944; 11-16-2012)
Under 22 CFR 40.2(a), a U.S. citizen is not eligible to receive an immigrant visa.
If an immigrant visa applicant has a possible claim to U.S. citizenship, the visa
officer should refer the applicant to the post's citizenship and passport officer for a
resolution of the citizenship issue. If the matter cannot be resolved that same
day, the visa officer should deny the immigrant visa application under INA 221(g)
pending resolution of the citizenship issue. Any doubts regarding the applicant's
U.S. citizenship status must be resolved before the visa officer may take final
action on the visa application. (See 9 FAM 42.12 N4 (c) and 9 FAM 40.2 N1 (b).)




9 FAM 42.71
PROCEDURAL NOTES
(CT:VISA-1860; 08-22-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.71 PN1 TIMELY VISA ISSUANCE
(CT:VISA-801; 04-21-2006)
Section 237 of Public Law 106-113 and subsequent legislation directs the
Department to establish a policy under which immediate relative and Fianc(e)
visas are processed within 30 days of receipt of necessary information from the
applicant and Department of Homeland Security (DHS). Other family-based
immigrant visas must be processed within 60 days of receipt of all information.


9 FAM 42.71 PN2 WAIVER BY DEPARTMENT OF
HOMELAND SECURITY (DHS) OF SANCTIONS
IMPOSED UNDER INA 243(D)

9 FAM 42.71 PN2.1 Discontinuance of Visa Issuance
(CT:VISA-1860; 08-22-2012)
Consular officers must discontinue issuing visas to citizens, nationals, subjects, or
residents of a country against which the Secretary of the Department of Homeland
Security has invoked sanctions under INA 243(d). Visa issuance cannot be
resumed until the consular officer has received notification from DHS that the
sanctions have been waived.

9 FAM 42.71 PN2.2 DHS Endorsement on Approved
Petitions
(CT:VISA-704; 02-15-2005)
The DHS endorsement on approved petitions will read:
Beneficiary(ies) granted waiver(s) of sanctions imposed under section 243(d) of the
Act.
The grant of a waiver of sanctions to the beneficiary of an approved petition
automatically includes the spouse and children of the beneficiary. If a petition was
previously approved by DHS without a waiver, the consular officer should forward


a request for a waiver, in duplicate, to the approving office. The request will be
processed by DHS, the decision endorsed thereon, and a copy returned directly to
the consular post. If a special urgency exists in obtaining a waiver of 243(d)
sanctions, due to the date of expiration of the individuals exit permit, the request
for waiver should include the date of expiration of the exit permit and the name of
the petitioner in the United States. The petitioner should be asked to defray the
cost of telegraphic notification if that appears to be necessary.






9 FAM 42.72
VALIDITY OF VISAS
(CT:VISA-986; 07-31-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.72 RELATED STATUTORY
PROVISION
(CT:VISA-986; 07-31-2008)

See INA 221(c), in part (8 U.S.C. 1201(c), in part).

INA 221(C), in part

c. An immigrant visa shall be valid for such period, not exceeding six
months, as shall be by regulations prescribed, except that any visa issued
to a child lawfully adopted by a United States citizen and spouse while
such citizen is serving abroad in the United States Armed Forces, or is
employed abroad by the United States Government, or is temporarily
abroad on business, shall be valid until such time, for a period not to
exceed three years, as the adoptive citizen parent returns to the United
States in due course of his service, employment, or business.


9 FAM 42.72 RELATED REGULATORY
PROVISION
(CT:VISA-986; 07-31-2008)

See 22 CFR 42.72.






9 FAM 42.72
NOTES
(CT:VISA-1175; 04-02-2009)
(Office of Origin: CA/VO/L/R)


9 FAM 42.72 N1 SPECIAL VALIDITY
CONSIDERATIONS REGARDING CHILDREN
(CT:VISA-1175; 04-02-2009)

8 CFR 211.1(b)(1) provides for the entry, without a visa, of a child born
subsequent to the issuance of a visa to the parent. (See 9 FAM 42.1 (d)
Related Statutory Provisions.) It should not, therefore, be necessary to
issue visas to such after-acquired children.


9 FAM 42.72 N2 INELIGIBILITY UNDER
PUBLIC LAW 104-208
(CT:VISA-1175; 04-02-2009)

An alien applying for redetermination of admissibility must meet the
additional grounds of ineligibility under Public Law 104-208.


9 FAM 42.72 N3 ARRIVAL IN UNITED STATES
AFTER VISA EXPIRATION
(CT:VISA-1175; 04-02-2009)

DHS regulation, 8 CFR 211.3, provides that:

An immigrant visa, reentry permit, refugee travel document, or Form I-551,
Permanent Resident Card, shall be regarded as unexpired if the rightful
holder:

(1) Embarked or enplaned before the expiration of the immigrant visa,
reentry permit, or refugee travel document or, with respect to the
Form I-551, before the first anniversary of the date of departure
from the United States; and




(2) The vessel or aircraft arrives in the United States or foreign
contiguous territory on a continuous voyage.


9 FAM 42.72 N4 DEFINING CONTINUOUS
VOYAGE
(CT:VISA-1175; 04-02-2009)

The continuity of the voyage shall not be deemed to have been interrupted if
the alien:

(1) Makes scheduled or emergency stops en route to the United States
or foreign continuous territory;

(2) Lays over in foreign contiguous territory for the sole purpose of
effecting a transportation connection to the United States; or

(3) Transfers to another conveyance in foreign contiguous territory
solely for the purpose of effecting a transportation connection to the
United States.






9 FAM 42.72
PROCEDURAL NOTES
(CT:VISA-1767; 10-31-2011)
(Office of Origin: CA/VO/L/R)


9 FAM 42.72 PN1 STATEMENT SIGNED BY
ALIEN OF MARRIAGEABLE AGE ISSUED VISA
AS CHILD
(CT:VISA-1767; 10-31-2011)

The post must require an alien of marriageable age, issued a special
immigrant, immediate relative, or preference immigrant visa or charged to
the foreign state of an accompanying parent by reason of status as a child
or as an unmarried son or daughter, to sign Form DS-237, Statement of
Marriageable Age Applicant. The post must attach Form DS-237 to the
immigrant visa (IV).


9 FAM 42.72 PN2 ATTACHING STATEMENT TO
VISA ISSUED UNDER NUMERICAL
LIMITATION
(CT:VISA-1767; 10-31-2011)

When a visa is issued under the provisions of INA 203(a) or (b) the post
must provide the following statement along with the immigrant visa (IV):

If, for any reason, you are unable to use your visa, you are requested to
return it to this office. Failure to return your unused visa may result in an
unnecessary delay in the issuance of a visa to some other qualified
applicant. Your cooperation in this regard will enable this office to issue a
visa to another applicant promptly. Should you, within the near future,
desire to reapply for an immigrant visa, every possible consideration will be
given to granting you the benefit of your original priority date on the waiting
list.






9 FAM 42.73
PROCEDURES IN ISSUING VISAS
(CT:VISA-986; 07-31-2008)
(Office of Origin: CA/VO/L/R)


9 FAM 42.73 RELATED STATUTORY
PROVISION
(CT:VISA-986; 07-31-2008)

See INA 221(a) (8 U.S.C. 1201(a)).

INA 221(a)
a. (1) Under the conditions hereinafter prescribed and subject to the
limitations prescribed in this Act or regulations issued thereunder, a
consular officer may issue

(A) to an immigrant who has made proper application therefore, an
immigrant visa which shall consist of the application provided for
in section 222, visaed by such consular officer, and shall specify
the foreign state, if any, to which the immigrant is charged, the
immigrant's particular status under such foreign state, the
preference, immediate relative, or special immigrant
classification to which the alien is charged, the date on which the
validity of the visa shall expire, and such additional information a
s may be required; and (B) 1a/ to a nonimmigrant who has
made proper application therefore, a nonimmigrant visa, which
shall specify the classification under section 101(a)(15) of the
nonimmigrant, the period during which the nonimmigrant visa
shall be valid, and such additional information as may be
required.

(2) The Secretary of State shall provide to the Service an electronic
version of the visa file of each alien who has been issued a visa to
ensure that the data in that visa file is available to immigration
inspectors at the United States ports of entry before the arrival of
the alien at such a port of entry.




9 FAM 42.73 RELATED REGULATORY
PROVISION
(CT:VISA-986; 07-31-2008)

See 22 CFR 42.73.




9 FAM 42.73
NOTES
(CT:VISA-1856; 08-14-2012)
(Office of Origin: CA/VO/L/R)


9 FAM 42.73 N1 CANCELLING NONIMMIGRANT
VISA WHEN IMMIGRANT VISA ISSUED
(CT:VISA-1094; 10-31-2008)
If an applicant for an immigrant visa (IV) holds a valid nonimmigrant visa (NIV),
the nonimmigrant visa is to be canceled when the immigrant visa is issued. No
certificate of invalidation or other report is required. If an IV is issued to the
bearer of a valid border crossing identification card, the card is to be canceled or
destroyed. No record is to be made of such cancellation or destruction.


9 FAM 42.73 N2 ISSUING IMMIGRANT VISA TO
LEGAL PERMANENT RESIDENT (LPR)
(CT:VISA-1856; 08-14-2012)
The Department of Homeland Security (DHS) and the Department have agreed
that a lawful permanent resident (LPR) alien is entitled to apply for and, if
qualified, may be issued an immigrant visa in any other visa classification. For
example, an immigrant who is admitted as a conditional immigrant may at some
future date qualify for a visa in an employment-based category and thus be
admitted in a non-conditional status. The consular officer must not require the
alien to relinquish Form I-551, Permanent Resident Card, as a condition for
issuance of another immigrant visa.


9 FAM 42.73 N3 FOREIGN AGENTS
REGISTRATION ACT
(TL:VISA-3; 08-30-1987)
The Foreign Agents Registration Act (22 U.S.C. 611 through 613) requires persons
within the United States acting as agents of a foreign principal to register with the
Department of Justice. The purpose of this Act is to protect the national defense,
internal security, and foreign relations of the United States by requiring public
disclosure by persons engaging in propaganda activities and other activities for or
on behalf of foreign governments, foreign political parties, and other foreign


principals so that the Government and the people of the United States may be
informed of the identity of such persons and may appraise their statements and
actions in the light of their associations and activities. Such registration places no
restrictions on the lawful activities which may be engaged in by an agent of a
foreign principal nor any stigma on anyone so registering. It may be assumed
that registrants have nothing to fear from public disclosure of their activities. If
statements obtained from an alien in connection with a visa application suggest
that the applicant may be subject to the registration requirement of the Act, the
consular officer should so inform the alien and advise that registration forms may
be obtained, after arrival in the United States, from the Department of Justice,
Washington, DC.




9 FAM 42.73
PROCEDURAL NOTES
(CT:VISA-2094; 04-29-2014)
(Office of Origin: CA/VO/L/R)


9 FAM 42.73 PN1 MACHINE READABLE
IMMIGRANT VISAS
(CT:VISA-1470; 08-13-2010)
The machine-readable immigrant visa (MRIV) is printed on the same adhesive foils
used for nonimmigrant visas (NIV) and includes the following information:
(1) Biographic data about the immigrant visa applicant;
(2) Information about the immigrant visa itself, (issuing post, visa type, case
number, date of issuance and date of expiration);
(3) ) The registration number (A-number) assigned to the immigrant;
(4) Any annotations entered to reflect waivers or other information useful for
the port of entry (POE) upon the applicants admission to the United
States;
(5) A digitized photo of the visa recipient; and
(6) ) Two lines of machine-readable data scanned by the immigration officer
at the POE.


9 FAM 42.73 PN2 INFORMATION TO INCLUDE ON
THE IMMIGRANT VISA (MRIV)

9 FAM 42.73 PN2.1 Annotating the Immigrant Visa
(CT:VISA-1950; 12-11-2012)
a. You should annotate the immigrant visa with information that is helpful to the
immigration officer at the port of entry upon the applicants admission to the
United States. The Immigrant Visa Overseas (IVO) system includes most
common annotations in a drop down list, or annotations can be manually
entered using up to 44 characters per line.
b. Indicate any waivers approved by U.S. Citizenship and Immigration Services
(USCIS) by annotating the visa. IVO includes drop-down annotations for most


waivers that you may use and edit, if necessary.
c. Because a beneficiary may not precede the principal applicant in entering the
United States, indicate if the applicant is a beneficiary accompanying or
following to join the principal applicant. You should use the IVO drop-down
annotation: Valid only if Acc/FTJ Father/Mother/Spouse.

9 FAM 42.73 PN2.2 Visa Recipient Name

9 FAM 42.73 PN2.2-1 Consistent Spelling of Aliens Names on
Visas and Passports
(CT:VISA-2094; 04-29-2014)
a. In order to avoid difficulty in identifying and processing aliens coming into the
United States, DHS requires that an aliens name be spelled on Form I-94,
Arrival and Departure Record, exactly as the name appears on the aliens
passport. Consular officers must assist DHS by ensuring that the names of visa
applicants are spelled the same on their visa applications Form DS-260, Online
Application for Immigrant Visa and Alien Registration, immigrant visas, and
passports. If an aliens name has been misspelled on the passport, the alien
must have the passport amended to show the correct spelling. All other
documents must also show the same correct spelling.
b. A female alien who marries subsequent to the filing of the petition Form I-130,
Petition For Alien Relative, or Form I-140, Immigrant Petition For Alien Worker,
but prior to visa issuance, must indicate this on Form DS-260, Online
Application for Immigrant Visa and Alien Registration, by answering yes to
Have you ever used another name (i.e., maiden, religious, professional, alias,
etc.)? and listing her maiden name in the Other Surnames Used (maiden,
religious professional, alias, etc.) field. If Form DS-260 has already been
submitted, the alien must advise the consular officer of the marriage to ensure
that Form DS-260 is amended. Posts must enter the maiden name into IVO as
an alias. It is not necessary for an alien falling within the purview of this note
to obtain a new or amended passport unless local regulations so require.

9 FAM 42.73 PN2.2-2 Alias Information Shown on Immigrant
Data Summary Cover Sheet
(CT:VISA-1647; 05-06-2011)
a. Posts must enter alias information into IVO as part of applicant entry. Alias
information is listed on the Immigrant Data Summary page printed by IVO after
the Machine-Readable Immigrant Visa (MRIV) is printed and checked for quality
assurance (QAed), and placed as a cover sheet on the immigrant visa envelope.
b. Posts must limit alias information to names that identify the individual. Posts
must include maiden names, anglicized names, which may have been used in


the United States, and other distinct names used by the alien. Posts must not,
however, include nicknames derived from the real names.

9 FAM 42.73 PN2.2-3 Spanish Name Indexing
(CT:VISA-1647; 05-06-2011)
Posts must enter Spanish names into IVO in strict compliance with the instructions
in 9 FAM Appendix F, 513. These instructions accord with the DHS indexing
system, and must be followed. Posts must enter Spanish names in the same
sequence on visa applications, visas, and passports.

9 FAM 42.73 PN2.3 City and Country of Birth and
City and Country of Last Residence
(CT:VISA-1647; 05-06-2011)
a. Posts must enter the city and country of birth into IVO. If applicable, enter the
region of birth as well.
NOTE: CITY AND COUNTRY OF LAST RESIDENCE refers to the last residence
outside the United States. Do not enter a U.S. address into this data field.
b. Exception for Tibetans: Applicants of Tibetan origin who are properly
chargeable to China have occasionally vehemently protested the policy of
showing China on their immigrant visa (IV) as their country of chargeability
and/or place of birth. In such instances, the general policy of showing the
country of chargeability and the fact that Tibet is part of China for visa
chargeability purposes must be explained to the applicant. Consular officers
may make exceptions to showing China as the country of chargeability in
individual cases upon consideration of all the circumstances, provided that the
internal records of the Department clearly permit the visa to be tracked to
China for chargeability purposes. This may be done by entering the code
"CCCC" into the computer program that generates Form OF-155-B, Immigrant
Visa and Alien Registration, which will result in "unassigned" appearing in the
relevant places on the visa.

9 FAM 42.73 PN2.4 Mothers First Name and
Fathers First Name
(CT:VISA-1647; 05-06-2011)
Posts must ensure that only the first (given) name of each parent is entered in the
IVO data fields. Only in the case of a hyphenated name should more than a single
name be included. Additional names or the full name should not be included.

9 FAM 42.73 PN2.5 Final Address in the United


States
(CT:VISA-1647; 05-06-2011)
Posts must ensure that the final address in the United States is complete and
accurate, including a ZIP code when it can be determined. This is the address that
DHS will use to mail the applicant the green card. Posts must enter the State in
the form of the official two-letter U.S. postal code. (See 9 FAM 42.73 Exhibit I.)
Post must specify care of (c/o) to the principal resident at the U.S. address
entered into the relevant IVO data fields and printed on the Immigrant Data
Summary cover sheet. Failure to indicate the c/o designation may result in the
return of the green card to the DHS.

9 FAM 42.73 PN2.5-1 Amerasian Notation Under Public Law
97-359
(CT:VISA-1174; 03-31-2009)
Public Law 97-359 requires DHS to report statistics on Amerasians and their
dependents who receive immigrant visas (IV) under the terms of that law. So that
DHS inspectors at ports of entry (POE) may be able to identify these cases, use
the appropriate immigrant visa codes listed in IVO, they begin with the letter A.

9 FAM 42.73 PN2.5-2 Applicants Classified as Conditional
Immigrants
(CT:VISA-1647; 05-06-2011)
a. The administration of the Immigration Marriage Fraud Amendments of 1986
falls mostly on the DHS.
b. The primary responsibility of consular officers is to identify, at the time of visa
issuance, marriages of less than two years which have been the basis of
petition approval. If an applicants basis for immigration is a marriage to a
petitioner which was entered into less than two years prior to the date of visa
issuance, the consul must classify the applicant as a conditional immigrant
using the appropriate symbol listed below:
(1) CR1Spouse of a U.S. citizen;
(2) CR2Child of a U.S. citizen;
(3) C21Spouse of alien resident (subject to country limitation);
(4) C22Child of alien resident (subject to country limitation);
(5) C23Child of C21 or C22;
(6) CX1Spouse of alien resident (exempt from limitations);
(7) CX2Child of alien resident (exempt from limitations);
(8) CX3Child of CX1 or CX2;


(9) C24Unmarried son/daughter of alien resident;
(10) C25Child of C24;
(11) C31Married son/daughter of U.S. citizen;
(12) C32Spouse of C31; or
(13) C33Child of C31.
c. The Immigration Act of 1990 creates a conditional status for employment-based
5th preference employment-creation visas. The appropriate symbols are listed
below:
(1) C51Employment-creation outside targeted area;
(2) C52Spouse of C51;
(3) C53Child of C51;
(4) T51Employment-creation in targeted area;
(5) T52Spouse of T51; and
(6) T53Child of T51.


9 FAM 42.73 PN3 ASSEMBLING IMMIGRANT
VISA APPLICATION MATERIALS , AND RELEVANT
NOTATIONS
(CT:VISA-2094; 04-29-2014)
In cases where the applicant has submitted Form DS-260, Online Application for
Immigrant Visa and Alien Registration, you should attach all the support
documents together, except medical documents in Class A or B tuberculosis cases
and X-ray film. (See 9 FAM 42.73 PN4.)

9 FAM 42.73 PN3.1 Petitions
(CT:VISA-2094; 04-29-2014)
a. In cases where the applicant has submitted Form DS-260, Online Application
for Immigrant Visa and Alien Registration:
(1) If an approved petition has been received, you must attach all supporting
documents received from the applicant under the petition and any
documents affixed to the petition. (Do not detach the documents from the
petition.) If blood tests were required as supporting evidence of the
relationship, you must attach the report of such tests, or a certified copy
thereof, to the petition. If the alien is a beneficiary of more than one
petition, you must attach all petitions.
(2) If the spouse or children of the beneficiary of an approved petition will


benefit from the same status, you must include the petition in the principal
applicants document envelope. You must insert a notation in the CCD
Web Application Report associated with the Form DS-260, using either the
general notation function or the notation function associated with the
spouse, children and/or parent sections. Notations should be entered in
the CCD Application Web Report association with Form DS-260 executed by
each alien.
b. Posts may issue immigrant visas (IVs) based on official notifications from the
Department of Homeland Security (DHS), or in emergency situations, on the
basis of an originally approved Form I-797, Notice of Action. DHS will send
official notifications to post through the National Visa Center (NVC). NVC then
forwards the notifications to posts. In the case of family-based petitions, all
original documentation establishing the claimed relationship should be
presented. In the case of employment-based petitions, where documentation is
necessary in order to determine job requirements and qualifications of the
alien, posts may issue an IV on the basis of Form I-797, if accompanied by a
certified copy of the original Form I-140, Immigrant Petition For Alien Worker,
and supporting documentation which were originally submitted to DHS.
c. If the post issues the immigrant visa on the basis of an official notification from
DHS, include a copy of the notification in the immigrant visa envelope if the
visa is issued before the petition is received. In such case, when the petition is
received, posts must return it to the DHS approving office with a memorandum
indicating:
(1) Date visa issued;
(2) Kind of visa and number, if assigned;
(3) Name of person to whom visa was issued;
(4) Port and date of arrival of beneficiary in the United States, if known; and
(5) Intended place of residence of beneficiary in the United States as stated in
the visa.

9 FAM 42.73 PN3.2 Applicants Who Are Subject of
Private Legislation
(CT:VISA-2094; 04-29-2014)
If an applicant is the beneficiary of a private law, posts must make a notation on
the Online IV Application Report associated with the applicants submitted Form
DS-260, Online Application for Immigrant Visa and Alien Registration, using the
general notation function, showing the number of the private law and the provision
of law which has been waived or from which relief has been, otherwise, granted by
the Congress. When possible, posts should also include a copy of the private law
in the supporting documents. If the post is notified by telegram of the enactment


of a private law, posts should include the telegram or a certified copy with the
other documents.

9 FAM 42.73 PN3.3 Annotation for Waivers Under
212(e), (g), (h), or (i)
(CT:VISA-2094; 04-29-2014)
If an applicant has been accorded the benefits of INA 212(e), (g), (h), or (i),
annotate the MRIV, add appropriate case notes to IVO and scan relevant
documents into IVO. Make a note on the Online IV Application Report associated
with the applicants submitted Form DS-260, Online Application for Immigrant Visa
and Alien Registration, using the general notation function, regarding the INA
section invoked.

9 FAM 42.73 PN3.3-1 Annotation to Reapply for Admission
(CT:VISA-2094; 04-29-2014)
DHS may grant permission to reapply for admission to the United States to an
immigrant otherwise ineligible under INA 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)).
However, such permission to reapply does not remove the grounds which led to
the aliens denial of admission to or removal from the United States. The reason
for such denial of admission or removal may lead to another ground of ineligibility.
If consent to reapply for admission has been granted to an applicant, annotate the
MRIV 212(a)(9)(A): consent to reapply granted by DHS" make appropriate case
notes, scan relevant documents into IVO, and make a note on the Online IV
Application Report associated with the applicants submitted DS-260, Online
Application for Immigrant Visa and Alien Registration, using the general notation
function.

9 FAM 42.73 PN3.3-2 Notation If Public Charge Bond Posted
(CT:VISA-2094; 04-29-2014)
If a public charge bond has been posted on behalf of an applicant, posts must
insert an endorsement on the Online IV Application Report associated with the
applicants submitted DS-260, Online Application for Immigrant Visa and Alien
Registration, using the general notation function, showing the amount of the bond
and the date and place of posting. Make appropriate case notes and scan relevant
documents into IVO.

9 FAM 42.73 PN3.3-3 Notation for Vaccination Waiver
(CT:VISA-1647; 05-06-2011)
a. If a vaccination requirement has been waived, posts must annotate the
immigrant visa to indicate the appropriate waiver grounds in the annotation


field, either 212(g)(2)(A), (B) or (C)," as appropriate.
b. Posts should indicate 212(a)(1)(A)(ii) refusals using the code 12V, to avoid
confusion with the previous code for ineligibility due to mental and/or physical
disorders, and to ensure accurate data sharing with DHS lookouts. Posts
should only enter this code for those cases that are not overcome by a waiver.


9 FAM 42.73 PN4 IMPORTANCE OF PROPER
ASSEMBLY OF IMMIGRANT VISAS AND
SUPPORTING DOCUMENTS
(CT:VISA-1647; 05-06-2011)
Consular officers must ensure that visas are prepared strictly in accordance with
the prescribed procedure. This is not only to reduce the possibility of fraud, but
also to prevent the visas from becoming separated from the proper photographs
and related and supporting documents, while in the hands of travel agents,
pursers, government officials, the courts, and persons operating the Department
of Homeland Security (DHS) files over many years.

9 FAM 42.73 PN4.1 Document Arrangement
(CT:VISA-2094; 04-29-2014)
You must attach all supporting documents, with the exception of medical
documents in Class A or B tuberculosis cases and X-ray film and support
documentation for the affidavit of support, face up to each to each other by staple
or round-head brass paper fastener in the top center. You must place the extra
photograph (with the aliens name, and the A number if known, written on the
back) in an envelope. They must attach it below the other supporting documents
by staple in the upper right corner, to permit easy removal by DHS. (Staples must
not touch the photo.) NOTE: You should not print out the DS-260, Online
Application for Immigrant Visa and Alien Registration, or the association Online IV
Application Report and it should not be placed in the packet.

9 FAM 42.73 PN4.2 Document Placement in Envelope
(CT:VISA-2094; 04-29-2014)
a. You must put all supporting documents into a 9-1/2 x 12 Kraft envelope with
gummed flap and Foreign Service of the United States of America and Official
Business printed thereon, from which the bottom left corner has been cut. You
must make the cut by starting 3 from the bottom of the envelope and
continuing on an angle of approximately 50 degrees to a point 2 inches from
the left side of the envelope. The envelope must bear the following wording in
large type:


IMPORTANT NOTICE:
TO BE OPENED ONLY BY A U.S. IMMIGRATION OR PUBLIC HEALTH SERVICE
OFFICER. THIS IS YOUR VISA. IT MUST BE SURRENDERED TO THE U.S.
IMMIGRATION OFFICER AT A PORT OF ENTRY INTO THE UNITED STATES. DO
NOT PACK IT; IT MUST BE HAND-CARRIED.
b. You must place all support documents in the envelope so that the upper left
corner of the packet protrudes through the missing corner of the envelope.

9 FAM 42.73 PN4.3 Medical Documents
(CT:VISA-1174; 03-31-2009)
Posts disposition of the medical documents will vary depending on whether or not
a class A or B medical condition exists. See 9 FAM 42.66 N14, 15, and 16 for
specific information on disposition of medical documents after visa issuance to
applicants with and without class A or B medical conditions.

9 FAM 42.73 PN4.4 Aliens Exempt from Vaccination
Requirement
(CT:VISA-1647; 05-06-2011)
The adoptive or prospective adoptive parent(s) must provide an original copy of
the signed affidavit to a consular officer either prior to or at the time of the visa
interview for inclusion in the case file. This copy must be attached to the Form
DS-2053, Medical Examination for Immigrant or Refugee Applicant, and included
with the supporting documents attached to the issued IR-3 or IR-4 visa.

9 FAM 42.73 PN4.5 Affidavit of Support and other
Supporting Documents
(CT:VISA-2094; 04-29-2014)
a. The Form I-864, Affidavit of Support Under Section 213A of the Act, must be
included in the stapled visa packet along with the support documents.
b. Supporting documents should be included in the visa packet but should not be
stapled or grommeted to the Form I-864 or other documents attached to the
Form DS-230. Supporting documents consist of the following:
(1) ) The most recent Federal income tax return filed prior to the time of Form
I- 864 signing; and
(2) Evidence of assets and liabilities (if applicable).


9 FAM 42.73 PN4.5-1 Documents for Accompanying
Dependents
(CT:VISA-1470; 08-13-2010)
Each applicant must submit a signed Form I-864, Affidavit of Support Under
Section 213A of the Act, (and Form I-864-A, Contract Between Sponsor and
Household Member, if needed). If, however, the principal applicant and
dependents will travel together, only one complete set of supporting documents is
required. The supporting documents should be included in the principal applicants
visa packet and the principal applicants alien registration number should be
recorded on each accompanying dependents Form I-864 in the FOR AGENCY USE
ONLY box on page 1.

9 FAM 42.73 PN4.5-2 Documents for Following-to-Join
Dependents
(CT:VISA-1470; 08-13-2010)
Each applicant must submit a signed Form I-864, Affidavit of Support Under
Section 213A of the Act, (and Form I-864-A, Contract Between Sponsor and
Household Member, if needed). If all following-to-join applicants will travel
together, only one complete set of supporting documents is required. The
documents should be included in one applicants visa packet and his or her alien
registration number should be recorded on each accompanying dependents Form
I-864 in the FOR AGENCY USE ONLY box on page 1 for all following-to-join
immigrants.

9 FAM 42.73 PN4.5-3 Documents for Family Members with
Separate Petitions
(CT:VISA-1367; 10-29-2009)
If separate petitions have been filed for family members, even accompanying or
following-to-join relatives, a complete set of supporting documents is required for
each principal applicant.

9 FAM 42.73 PN4.6 Using Rubber Stamp Seal When
Sealing Envelopes
(CT:VISA-1781; 12-02-2011)
Posts must seal all envelopes containing the visa documentation by imprinting the
rubber stamp seal one time in the center where the flap is glued to the body of the
envelope.


9 FAM 42.73 PN4.7 Assembling Visa
(CT:VISA-2094; 04-29-2014)
You must place the Immigrant Data Summary page which is printed after the
immigrant visa is printed and QAed, on top of the envelope containing the
supporting documents, aligning the upper left corner of the Summary pages and
the supporting documents protruding through the envelope. If applicable, posts
should place these on top of the envelope containing Forms DS-2053 or DS-2054,
Medical Examination for Immigrant or Refugee Applicant; Form DS-3024 or DS-
3030, Chest X-Ray and Classification Worksheet; Form DS-3025, Vaccination
Documentation Worksheet; and Form DS-3026, Medical History and Physical
Examination Worksheet. Posts must attach the Summary Page, supporting
documents, and Form DS-2053 or Form DS-2054 envelope (if applicable) with two
heavy-duty staples in the upper left corner of Summary Page, well above the
space for the aliens name so as not to obscure the name. When attaching an
envelope containing medical forms, consular officers should ensure that staples do
not go through the documents inside the envelope. Posts must assemble
individually the visas of members of a family group; they must not be attached
together with staples.


9 FAM 42.73 PN5 DERIVATIVE BENEFICIARIES
CANNOT PRECEDE PRINCIPAL ALIEN
(CT:VISA-1470; 08-13-2010)
Annotate the MRIV for derivative beneficiaries to inform both the applicant and the
port of entry that they cannot precede the principal applicant in entering the
United States and their visa is valid only if they accompany or follow-to-join the
principal applicant. See 42.73 PN2.1 for more information on annotating MRIVs.


9 FAM 42.73 PN6 ALIEN POSSESSING
PREVIOUSLY ISSUED FORM I-551, PERMANENT
RESIDENT CARD

9 FAM 42.73 PN6.1 Application for Replacement Form
I-551, Permanent Resident Card
(CT:VISA-1647; 05-06-2011)
A recipient of a returning resident (SB-1) visa will normally possess a previously
issued Form I-551, Permanent Resident Card. If, for some reason the alien no
longer possesses the form, posts should instruct the alien to apply for a
replacement on Form I-90, Application to Replace Permanent Resident Card.


9 FAM 42.73 PN6.2 Inclusion of Form I-551,
Permanent Resident Card, in Visa
(CT:VISA-1647; 05-06-2011)
Posts must include in the immigrant visa (IV) any previously issued Form I-551,
Permanent Resident Card, possessed by the alien, including returning resident
(SB-1) aliens, in the same envelope as the extra photograph.


9 FAM 42.73 PN7 STATEMENT SIGNED BY ALIEN
OF MARRIAGEABLE AGE ISSUED VISA AS
CHILD
(CT:VISA-1174; 03-31-2009)
See 9 FAM 42.72 PN1.


9 FAM 42.73 PN8 STATEMENT ATTACHED TO
VISA ISSUED UNDER NUMERICAL LIMITATION
(CT:VISA-1174; 03-31-2009)
See 9 FAM 42.72 PN2.


9 FAM 42.73 PN9 SOCIAL SECURITY
REGISTRATION
(CT:VISA-2094; 04-29-2014)
a. The Social Security Act requires that every new immigrant, regardless of age,
be issued a Social Security number (SSN) at the time of admission to the
United States for lawful permanent residence (LPR). Non-citizens applying to
enter the United States may apply for their SSN on Form DS-260, Online
Application for Immigrant Visa and Alien Registration, Social Security Number
Information Page, if they will be 18 years of age or older upon their arrival.
Those who do so can expect to receive their SSN card at their new U.S. address
within three weeks of arriving. 9 FAM 42.73 Exhibit III explains the process
further.
b. Those who cannot or do not apply for their SSN cards on their visa application
must visit their local Social Security office to apply once they have a permanent
address in the United States. Applicants must bring their passport with their
MRIV or Form I-551, Permanent Resident Card, if they have it; and their birth
certificate and a birth certificate for each member of their family applying for a
Social Security number.


9 FAM 42.73 PN10 SELECTIVE SERVICE
REGISTRATION
(CT:VISA-1647; 05-06-2011)
a. Under the provisions of the Military Selective Service Act and the Presidential
Proclamation dated July 2, 1980, registration is required for males who have
attained their 18th birthday but not reached their 26th birthday. Such aliens
must present themselves to a U.S. Post Office designated for registration within
30 days after entering the United States.
b. All such aliens must sign Form DS-1810, Notice of Duty to Register with U.S.
Selective Service System (see 9 FAM 42.73 Exhibit IV), at the time of the
immigrant visa (IV) interview. Posts must enclose the signed Form DS-1810
with the other documents in the issued IV packet. Posts should also give to the
alien a duplicate copy, printed in both English and the language of the host
country.


9 FAM 42.73 PN11 FEMALE GENITAL
MUTILATION (FGM) NOTIFICATION
(CT:VISA-1174; 03-31-2009)
Section 644 of the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Public Law 104-208 (8 U.S.C. 1374), requires the Department of
Homeland Security (DHS), with the cooperation from the Department of State, to
notify visa recipients of the severe harm to physical and psychological health
caused by Female Genital Mutilation (FGM). The DHS regulations require that
written notice be given to immigrants in countries where FGM is a common
practice.

9 FAM 42.73 PN11.1 All Posts Required to Post FGM
Notice
(CT:VISA-2053; 11-13-2013)
a. All posts must display the FGM notice (Form G-1015, Fact Sheet on Genital
Mutilation) in the Nonimmigrant Visas (NIV) and/or IV waiting room. This
notice (in English and French) can be found on CA's Intranet Web site or on the
CA Internet home page Web site by clicking on "DHS Fact Sheet on Female
Genital Mutilation."
b. Posts should be able to download and print out locally copies of the notice in
the relevant language. Additionally, CA/VO has e-mailed copies of this notice
to concerned posts. Posts are authorized to use their Machine Readable Visa
(MRV) allotment or fund site if needed to cover local reproduction costs.


9 FAM 42.73 PN11.2 Requirement to Provide Copy of
FGM Notice
(CT:VISA-1174; 03-31-2009)
IIRIRA 644 (8 U.S.C. 1374) allows DHS and the Department to target visa
recipients from countries where FGM is a common problem. Posts should provide
a copy of the notice to IV recipients in the countries listed below. At the time of
interview, consular officers at posts listed below should provide one copy of the
notice to each family receiving an immigrant visa.
LIST OF COUNTRIES WHERE FGM IS PREVALENT
Benin Ethiopia Mauritania Egypt
Burkina Faso Eritrea Niger

Cameroon Gambia Nigeria

Central African Republic Ghana Sierra Leone

Chad Guinea Somalia

Cote d'Ivoire Guinea-Bissau Sierra Leone

Democratic Republic Kenya Tanzania

of the Congo Liberia Togo

Djibouti Mali Uganda



LIST OF POSTS TO PROVIDE APPLICANT WITH FORM G-1015
Abidjan Cotonou Monrovia
Accra Dar es Salaam Nairobi
Addis Ababa Djibouti Niamey
Asmara Kinshasa Ouagadougou
Bangui Lagos Yaounde
Dakar Lome


9 FAM 42.73 PN11.3 Downloading FGM Notice from the
Web site
(CT:VISA-2053; 11-13-2013)
a. The Department has posted an English and French version of the DHS Fact
Sheet on Female Genital Mutilation (Form G-1015) on the CAWeb Visas
Intranet site in the Find Visa Content drop downs under Visa Processing Step;
select Interview; then see the header Handouts, Public Notices and Public
Information, for the FGM notice G-1015. Posts should print out a copy of the


notice and reproduce it locally. Posts are authorized to use their MRV allotment
or fund site if needed to cover local reproduction costs.
b. In situations where translations are not available on the CAWeb, posts may also
create their own notices in the dialects of the country that they serve. These
additional translations may be posted on CAWeb by request.

9 FAM 42.73 PN11.4 Public and Host Government
Reaction
(CT:VISA-1174; 03-31-2009)
The social and political sensitivities surrounding FGM in many countries may
prompt public or host government reaction to the FGM notice. Posts should draw
on the following talking points when responding to any complaints or comments:
(1) ) The United States law makes it illegal to perform or allow others to
perform FGM in the United States on persons under the age of 18 for other
than medical reasons. The law also requires that persons receiving visas be
advised of this fact, and of the medical and psychological damage caused
by FGM.
(2) Providing this advice could prevent individuals from doing something in the
United States that could result in their becoming subject to criminal
prosecution. This is particularly important because people who have grown
up in societies where FGM is deeply rooted may erroneously assume that
they can follow their customs in the United States.
(3) We realize that in countries where the practice is common, FGM is deeply
rooted in social traditions and culture. We nevertheless believe that FGM is
a serious violation of a woman's rights and should be eradicated through
education efforts and legislation making the practice of FGM illegal.
(4) ) The United States is committed to working with other governments and
local community organizations, both in the United States and other
countries, to educate people about the serious damage FGM inflicts on
women and girls. The practice of FGM is now illegal in the United States,
and we believe strongly that persons immigrating to the United States or
visiting from countries where FGM is prevalent should be aware of this fact.


9 FAM 42.73 PN12 POST ANALYSES OF
SIGNIFICANT DEVELOPMENTS IN VISA
ISSUANCES


9 FAM 42.73 PN12.1 Reports to Department of
Significant Changes in Posts Visa Issuances
(CT:VISA-1647; 05-06-2011)
a. Visa issuing officers must report by telegram (CVIS: OPERATIONS) significant
changes, as they occur, in the:
(1) Classes of visas issued;
(2) ) Types of applicants seeking visas; and
(3) Political, economic, and psychological factors affecting the volume and
character of visa issuance.
b. When appropriate, the consular officer should address the probable effect of the
reported changes on the posts future workload.
c. The consular officer must clear the reports with political and economic officers
and labor attaches assigned to the post in order to obtain their comments and
avoid duplication in reporting.

9 FAM 42.73 PN12.2 Reports to Department of Unusual
Backlogs at Post
(CT:VISA-1647; 05-06-2011)
The consular officer must promptly inform the Department (CA/VO/F/I), by
telegram, whenever the post is unable or will be unable for two consecutive
months to schedule for final appointment all qualified applicants for whom
numbers are available. Reports should include a detailed analysis of the
anticipated duration of the backlog and suggested steps, including personnel
needs, to rectify the situation.

9 FAM 42.73 PN12.3 Reporting Schedule
(TL:VISA-185; 02-26-1999)
See 9 FAM Appendix I Exhibit II for reporting requirements.






9 FAM 42.73 EXHIBIT I U.S. POSTAL
SERVICE TWO-LETTER STATE AND
TERRITORY ABBREVIATIONS
(CT:VISA-962; 05-23-2008)
(Office of Origin: CA/VO/L/R)
Alabama AL
Alaska AK
Arizona AZ
Arkansas AR
American Samoa AS
California CA
Colorado CO
Connecticut CT
Delaware DE
District of Columbia DC
Florida FL
Georgia GA
Guam GU
Hawaii HI
Idaho ID
Illinois IL
Indiana IN
Kansas KS
Kentucky KY




Louisiana LA
Maine ME
Maryland MD
Massachusetts MA
Michigan MI
Minnesota MN
Mississippi MS
Missouri MO
Montana MT
Nebraska NE
Nevada NV
New Hampshire NH
New Jersey NJ
New Mexico NM
New York NY
North Carolina NC
North Dakota ND
Northern Mariana Islands CM