Title 8 Part 103
Title 8 → Chapter I → Subchapter B → Part 103
Electronic Code of Federal Regulations e-CFR
Title 8 Part 103
PART 103—IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS
§103.2 Submission and adjudication of benefit requests.
§103.3 Denials, appeals, and precedent decisions.
§103.5 Reopening or reconsideration.
§103.6 Surety bonds.
§103.8 Service of decisions and other notices.
§103.9 Request for further action on an approved benefit request.
§103.10 Precedent decisions.
§103.39 Historical Records.
§103.40 Genealogical Research Requests.
§103.41 Genealogy request fees.
§103.42 Rules relating to the Freedom of Information Act (FOIA) and the Privacy Act.
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 48 U.S.C. 1806; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2; Pub. L. 112-54, 125 Stat 550.
Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.
Subpart A—Applying for Benefits, Surety Bonds, Fees
§103.2 Submission and adjudication of benefit requests.
(a) Filing. (1) Preparation and submission. Every form, benefit request, or other document must be submitted to DHS and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary. The form's instructions are hereby incorporated into the regulations requiring its submission. Each form, benefit request, or other document must be filed with the fee(s) required by regulation. Filing fees generally are non-refundable and, except as otherwise provided in this chapter I, must be paid when the benefit request is filed.
(2) Signature. An applicant or petitioner must sign his or her benefit request. However, a parent or legal guardian may sign for a person who is less than 14 years old. A legal guardian may sign for a mentally incompetent person. By signing the benefit request, the applicant or petitioner, or parent or guardian certifies under penalty of perjury that the benefit request, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct. Unless otherwise specified in this chapter, an acceptable signature on a benefit request that is being filed with the USCIS is one that is either handwritten or, for benefit requests filed electronically as permitted by the instructions to the form, in electronic format.
(3) Representation. An applicant or petitioner may be represented by an attorney in the United States, as defined in §1.2 of this chapter, by an attorney outside the United States as defined in §292.1(a)(6) of this chapter, or by an accredited representative as defined in §292.1(a)(4) of this chapter. A beneficiary of a petition is not a recognized party in such a proceeding. A benefit request presented in person by someone who is not the applicant or petitioner, or his or her representative as defined in this paragraph, shall be treated as if received through the mail, and the person advised that the applicant or petitioner, and his or her representative, will be notified of the decision. Where a notice of representation is submitted that is not properly signed, the benefit request will be processed as if the notice had not been submitted.
(4) Oath. Any required oath may be administered by an immigration officer or person generally authorized to administer oaths, including persons so authorized by Article 136 of the Uniform Code of Military Justice.
(5) Translation of name. If a document has been executed in an anglicized version of a name, the native form of the name may also be required.
(6) Where to file. All benefit requests must be filed in accordance with the form instructions.
(7) Benefit requests submitted. (i) USCIS will consider a benefit request received and will record the receipt date as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format.
(ii) A benefit request which is rejected will not retain a filing date. A benefit request will be rejected if it is not:
(A) Signed with valid signature;
(C) Filed in compliance with the regulations governing the filing of the specific application, petition, form, or request; and
(D) Submitted with the correct fee(s). If a check or other financial instrument used to pay a fee is returned as unpayable, USCIS will re-submit the payment to the remitter institution one time. If the instrument used to pay a fee is returned as unpayable a second time, the filing will be rejected and a charge will be imposed in accordance with 8 CFR 103.7(a)(2).
(iii) A rejection of a filing with USCIS may not be appealed.
(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.
(2) Submitting secondary evidence and affidavits—(i) General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.
(ii) Demonstrating that a record is not available. Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where USCIS finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement.
(iii) Evidence provided with a self-petition filed by a spouse or child of abusive citizen or resident. The USCIS will consider any credible evidence relevant to a self-petition filed by a qualified spouse or child of an abusive citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not required to, demonstrate that preferred primary or secondary evidence is unavailable. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of USCIS.
(3) Translations. Any document containing foreign language submitted to USCIS shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English.
(4) Supporting documents. Original or photocopied documents which are required to support any benefit request must be submitted in accordance with the form instructions.
(5) Request for an original document. USCIS may, at any time, request submission of an original document for review. The request will set a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying benefit request. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an original document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document in accordance with instructions provided by USCIS.
(6) Withdrawal. An applicant or petitioner may withdraw a benefit request at any time until a decision is issued by USCIS or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted.
(7) Testimony. The USCIS may require the taking of testimony, and may direct any necessary investigation. When a statement is taken from and signed by a person, he or she shall, upon request, be given a copy without fee. Any allegations made subsequent to filing a benefit request which are in addition to, or in substitution for, those originally made, shall be filed in the same manner as the original benefit request, or document, and acknowledged under oath thereon.
(8) Request for Evidence; Notice of Intent to Deny—(i) Evidence of eligibility or ineligibility. If the evidence submitted with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in which the applicable statute or regulation makes the approval of a benefit request a matter entrusted to USCIS discretion, USCIS will approve the benefit request only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the benefit request will be denied on that basis.
(ii) Initial evidence. If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.
(iii) Other evidence. If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the benefit request for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the benefit request and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS.
(iv) Process. A request for evidence or notice of intent to deny will be communicated by regular or electronic mail and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted.
(9) Appearance for interview or biometrics. USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview and/or biometric collection. USCIS may require the payment of the biometric services fee in 8 CFR 103.7(b)(1)(i)(C) or that the individual obtain a fee waiver. Such appearance and fee may also be required by law, regulation, form instructions, or Federal Register notice applicable to the request type. USCIS will notify the affected person of the date, time and location of any required appearance under this paragraph. Any person required to appear under this paragraph may, before the scheduled date and time of the appearance, either:
(i) Appear before the scheduled date and time;
(ii) For good cause, request that the biometric services appointment be rescheduled; or
(iii) Withdraw the benefit request.
(10) Effect of a request for initial or additional evidence for fingerprinting or interview rescheduling—(i) Effect on processing. The priority date of a properly filed petition shall not be affected by a request for missing initial evidence or request for other evidence. If a benefit request is missing required initial evidence, or an applicant, petitioner, sponsor, beneficiary, or other individual who requires fingerprinting requests that the fingerprinting appointment or interview be rescheduled, any time period imposed on USCIS processing will start over from the date of receipt of the required initial evidence or request for fingerprint or interview rescheduling. If USCIS requests that the applicant or petitioner submit additional evidence or respond to other than a request for initial evidence, any time limitation imposed on USCIS for processing will be suspended as of the date of request. It will resume at the same point where it stopped when USCIS receives the requested evidence or response, or a request for a decision based on the evidence.
(ii) Effect on interim benefits. Interim benefits will not be granted based on a benefit request held in suspense for the submission of requested initial evidence, except that the applicant or beneficiary will normally be allowed to remain while a benefit request to extend or obtain status while in the United States is pending. The USCIS may choose to pursue other actions to seek removal of a person notwithstanding the pending application. Employment authorization previously accorded based on the same status and employment as that requested in the current benefit request may continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the suspense period.
(11) Responding to a request for evidence or notice of intent to deny. In response to a request for evidence or a notice of intent to deny, and within the period afforded for a response, the applicant or petitioner may: submit a complete response containing all requested information at any time within the period afforded; submit a partial response and ask for a decision based on the record; or withdraw the benefit request. All requested materials must be submitted together at one time, along with the original USCIS request for evidence or notice of intent to deny. Submission of only some of the requested evidence will be considered a request for a decision on the record.
(12) Effect where evidence submitted in response to a request does not establish eligibility at the time of filing. A benefit request shall be denied where evidence submitted in response to a request for evidence does not establish filing eligibility at the time the benefit request was filed. A benefit request shall be denied where any benefit request upon which it was based was filed subsequently.
(13) Effect of failure to respond to a request for evidence or a notice of intent to deny or to appear for interview or biometrics capture—(i) Failure to submit evidence or respond to a notice of intent to deny. If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the benefit request may be summarily denied as abandoned, denied based on the record, or denied for both reasons. If other requested material necessary to the processing and approval of a case, such as photographs, are not submitted by the required date, the application may be summarily denied as abandoned.
(ii) Failure to appear for biometrics capture, interview or other required in-person process. Except as provided in 8 CFR 335.6, if USCIS requires an individual to appear for biometrics capture, an interview, or other required in-person process but the person does not appear, the benefit request shall be considered abandoned and denied unless by the appointment time USCIS has received a change of address or rescheduling request that the agency concludes warrants excusing the failure to appear.
(14) Effect of request for decision. Where an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the benefit request. Failure to appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related benefit request.
(15) Effect of withdrawal or denial due to abandonment. The USCIS acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under §103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new benefit request with a new fee. However, the priority or processing date of a withdrawn or abandoned benefit request may not be applied to a later application petition. Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior benefit request shall otherwise be material to the new benefit request.
(16) Inspection of evidence. An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as provided in the following paragraphs.
(i) Derogatory information unknown to petitioner or applicant. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding.
(ii) Determination of statutory eligibility. A determination of statutory eligibility shall be based only on information contained in the record of proceeding which is disclosed to the applicant or petitioner, except as provided in paragraph (b)(16)(iv) of this section.
(iii) Discretionary determination. Where an application may be granted or denied in the exercise of discretion, the decision to exercise discretion favorably or unfavorably may be based in whole or in part on classified information not contained in the record and not made available to the applicant, provided the USCIS Director or his or her designee has determined that such information is relevant and is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security.
(iv) Classified information. An applicant or petitioner shall not be provided any information contained in the record or outside the record which is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security, unless the classifying authority has agreed in writing to such disclosure. Whenever he/she believes he/she can do so consistently with safeguarding both the information and its source, the USCIS Director or his or her designee should direct that the applicant or petitioner be given notice of the general nature of the information and an opportunity to offer opposing evidence. The USCIS Director's or his or her designee's authorization to use such classified information shall be made a part of the record. A decision based in whole or in part on such classified information shall state that the information is material to the decision.
(17) Verifying claimed permanent resident status—(i) Department records. The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States or was formerly a permanent resident of the United States will be verified from official Department records. These records include alien and other files, arrival manifests, arrival records, Department index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued after July 1, 1929, Permanent Resident Cards, or other registration receipt forms (provided that such forms were issued or endorsed to show admission for permanent residence), passports, and reentry permits. An official record of a Department index card must bear a designated immigrant visa symbol and must have been prepared by an authorized official of the Department in the course of processing immigrant admissions or adjustments to permanent resident status. Other cards, certificates, declarations, permits, and passports must have been issued or endorsed to show admission for permanent residence. Except as otherwise provided in 8 CFR part 101, and in the absence of countervailing evidence, such official records will be regarded as establishing lawful admission for permanent residence.
(ii) Assisting self-petitioners who are spousal-abuse victims. If a self-petitioner filing a petition under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present primary or secondary evidence of the abuser's status, USCIS will attempt to electronically verify the abuser's citizenship or immigration status from information contained in the Department's automated or computerized records. Other Department records may also be reviewed at the discretion of the adjudicating officer. If USCIS is unable to identify a record as relating to the abuser, or the record does not establish the abuser's immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.
(18) Withholding adjudication. USCIS may authorize withholding adjudication of a visa petition or other application if USCIS determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the benefit request, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the benefit request would prejudice the ongoing investigation. If an investigation has been undertaken and has not been completed within one year of its inception, USCIS will review the matter and determine whether adjudication of the benefit request should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of USCIS's determination, the investigation has not been completed, the matter will be reviewed again by USCIS and, if it concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, USCIS may authorize that adjudication be held in abeyance for another six months. Thereafter, if USCIS determines it is necessary to continue to withhold adjudication pending completion of the investigation, it will review that determination every six months.
(19) Notification. (i) Unrepresented applicants or petitioners. USCIS will only send original notices and documents evidencing lawful status based on the approval of a benefit request directly to the applicant or petitioner if the applicant or petitioner is not represented.
(ii) Represented applicants or petitioners. (A) Notices. When an applicant or petitioner is represented, USCIS will send original notices both to the applicant or petitioner and his or her authorized attorney or accredited representative. If provided in this title, on the applicable form, or on form instructions, an applicant or petitioner filing a paper application or petition may request that all original notices, such as requests for evidence and notices of decision, only be sent to the official business address of the applicant's or petitioner's authorized attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative. In such instances, a courtesy copy of the original notice will be sent to the applicant or petitioner.
(B) Electronic notices. For applications or petitions filed electronically, USCIS will notify both the applicant or petitioner and the authorized attorney or accredited representative electronically of any notices or decisions. Except as provided in paragraph (b)(19)(ii)(C) of this section, USCIS will not issue paper notices or decisions for electronically-filed applications or petitions, unless:
(1) The option exists for the applicant or petitioner to request to receive paper notices or decisions by mail through the U.S. Postal Service, by indicating this preference in his or her electronic online account profile in USCIS's electronic immigration system; or
(2) USCIS, in its discretion, determines that issuing a paper notice or decision for an electronically-filed application or petition is warranted.
(C) Approval notices with attached Arrival-Departure Records. USCIS will send an original paper approval notice with an attached Arrival-Departure Record, reflecting USCIS's approval of an applicant's request for an extension of stay or change of status, to the official business address of the applicant's or petitioner's attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative or in the address section of the online representative account profile in USCIS's electronic immigration system, unless the applicant specifically requests that the original approval notice with an attached Arrival-Departure Record be sent directly to his or her mailing address.
(iii) Secure identity documents. USCIS will send secure identification documents, such as a Permanent Resident Card or Employment Authorization Document, only to the applicant or self-petitioner unless the applicant or self-petitioner specifically consents to having his or her secure identification document sent to the official business address of the applicant's or self-petitioner's attorney of record or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative or in the address section of the online representative account profile in USCIS's electronic immigration system.
[29 FR 11956, Aug. 21, 1964]
Editorial Note: For Federal Register citations affecting §103.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.
§103.3 Denials, appeals, and precedent decisions.
(a) Denials and appeals—(1) General—(i) Denial of application or petition. When a Service officer denies an application or petition filed under §103.2 of this part, the officer shall explain in writing the specific reasons for denial. If Form I-292 (a denial form including notification of the right of appeal) is used to notify the applicant or petitioner, the duplicate of Form I-292 constitutes the denial order.
(ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and other types of cases may be appealed. Decisions under the appellate jurisdiction of the Board of Immigration Appeals (Board) are listed in §3.1(b) of this chapter. Decisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in §103.1(f)(2) of this part.
(iii) Appeal—(A) Jurisdiction. When an unfavorable decision may be appealed, the official making the decision shall state the appellate jurisdiction and shall furnish the appropriate appeal form.
(B) Meaning of affected party. For purposes of this section and §§103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. An affected party may be represented by an attorney or representative in accordance with part 292 of this chapter.
(C) Record of proceeding. An appeal and any cross-appeal or briefs become part of the record of proceeding.
(D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is filed by a Service officer, a copy must be served on the affected party.
(iv) Function of Administrative Appeals Unit (AAU). The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations.
(v) Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. The filing by an attorney or representative accredited under 8 CFR 292.2(d) of an appeal which is summarily dismissed under this section may constitute frivolous behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under §103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary action against attorneys or representatives provided in 8 CFR 292.2 or in any other statute or regulation.
(2) AAU appeals in other than special agricultural worker and legalization cases—(i) Filing appeal. The affected party must submit an appeal on Form I-290B. Except as otherwise provided in this chapter, the affected party must pay the fee required by §103.7 of this part. The affected party must submit the complete appeal including any supporting brief as indicated in the applicable form instructions within 30 days after service of the decision.
(ii) Reviewing official. The official who made the unfavorable decision being appealed shall review the appeal unless the affected party moves to a new jurisdiction. In that instance, the official who has jurisdiction over such a proceeding in that geographic location shall review it.
(iii) Favorable action instead of forwarding appeal to AAU. The reviewing official shall decide whether or not favorable action is warranted. Within 45 days of receipt of the appeal, the reviewing official may treat the appeal as a motion to reopen or reconsider and take favorable action. However, that official is not precluded from reopening a proceeding or reconsidering a decision on his or her own motion under §103.5(a)(5)(i) of this part in order to make a new decision favorable to the affected party after 45 days of receipt of the appeal.
(iv) Forwarding appeal to AAU. If the reviewing official will not be taking favorable action or decides favorable action is not warranted, that official shall promptly forward the appeal and the related record of proceeding to the AAU in Washington, DC.
(v) Improperly filed appeal—(A) Appeal filed by person or entity not entitled to file it—(1) Rejection without refund of filing fee. An appeal filed by a person or entity not entitled to file it must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will not be refunded.
(2) Appeal by attorney or representative without proper Form G-28—(i) General. If an appeal is filed by an attorney or representative without a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) entitling that person to file the appeal, the appeal is considered improperly filed. In such a case, any filing fee the Service has accepted will not be refunded regardless of the action taken.
(ii) When favorable action warranted. If the reviewing official decides favorable action is warranted with respect to an otherwise properly filed appeal, that official shall ask the attorney or representative to submit Form G-28 to the official's office within 15 days of the request. If Form G-28 is not submitted within the time allowed, the official may, on his or her own motion, under §103.5(a)(5)(i) of this part, make a new decision favorable to the affected party without notifying the attorney or representative.
(iii) When favorable action not warranted. If the reviewing official decides favorable action is not warranted with respect to an otherwise properly filed appeal, that official shall ask the attorney or representative to submit Form G-28 directly to the AAU. The official shall also forward the appeal and the relating record of proceeding to the AAU. The appeal may be considered properly filed as of its original filing date if the attorney or representative submits a properly executed Form G-28 entitling that person to file the appeal.
(B) Untimely appeal—(1) Rejection without refund of filing fee. An appeal which is not filed within the time allowed must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will not be refunded.
(2) Untimely appeal treated as motion. If an untimely appeal meets the requirements of a motion to reopen as described in §103.5(a)(2) of this part or a motion to reconsider as described in §103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be made on the merits of the case.
(vi) Brief. The affected party may submit a brief with Form I-290B.
(vii) Additional time to submit a brief. The affected party may make a written request to the AAU for additional time to submit a brief. The AAU may, for good cause shown, allow the affected party additional time to submit one.
(viii) Where to submit supporting brief if additional time is granted. If the AAU grants additional time, the affected party shall submit the brief directly to the AAU.
(ix) Withdrawal of appeal. The affected party may withdraw the appeal, in writing, before a decision is made.
(x) Decision on appeal. The decision must be in writing. A copy of the decision must be served on the affected party and the attorney or representative of record, if any.
(3) Denials and appeals of special agricultural worker and legalization applications and termination of lawful temporary resident status under sections 210 and 245A. (i) Whenever an application for legalization or special agricultural worker status is denied or the status of a lawful temporary resident is terminated, the alien shall be given written notice setting forth the specific reasons for the denial on Form I-692, Notice of Denial. Form I-692 shall also contain advice to the applicant that he or she may appeal the decision and that such appeal must be taken within 30 days after service of the notification of decision accompanied by any additional new evidence, and a supporting brief if desired. The Form I-692 shall additionally provide a notice to the alien that if he or she fails to file an appeal from the decision, the Form I-692 will serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must be accompanied by the appropriate fee. Form I-694 shall be furnished with the notice of denial at the time of service on the alien.
(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Unit as provided by §103.1(f)(2) of this part for review and decision. The decision on the appeal shall be in writing, and if the appeal is dismissed, shall include a final notice of ineligibility. A copy of the decision shall be served upon the applicant and his or her attorney or representative of record. No further administrative appeal shall lie from this decision, nor may the application be filed or reopened before an immigration judge or the Board of Immigration Appeals during exclusion or deportation proceedings.
(iv) Any appeal which is filed that:
(A) Fails to state the reason for appeal;
(B) Is filed solely on the basis of a denial for failure to file the application for adjustment of status under section 210 or 245A in a timely manner; or
(C) Is patently frivolous; will be summarily dismissed. An appeal received after the thirty (30) day period has tolled will not be accepted for processing.
(4) Denials and appeal of Replenishment Agricultural Worker petitions and waivers and termination of lawful temporary resident status under section 210A. (i) Whenever a petition for Replenishment Agricultural Worker status, or a request for a waiver incident to such filing, is denied in accordance with the provisions of part 210a of this title, the alien shall be given written notice setting forth the specific reasons for the denial on Form I-692, Notice of Denial. Form I-692 shall also contain advice to the alien that he or she may appeal the decision and that such appeal must be taken within thirty (30) days after service of the notification of decision accompanied by any additional new evidence, and a supporting brief if desired. The Form I-692 shall additionally provide a notice to the alien that if he or she fails to file an appeal from the decision, the Form I-692 shall serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must be accompanied by the appropriate fee. Form I-694 shall be furnished with the notice of denial at the time of service on the alien.
(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Unit as provided by §103.1(f)(2) of this part for review and decision. The decision on the appeal shall be in writing, and if the appeal is dismissed, shall include a final notice of ineligibility. A copy of the decision shall be served upon the petitioner and his or her attorney or representative of record. No further administrative appeal shall lie from this decision, nor may the petition be filed or reopened before an immigration judge or the Board of Immigration Appeals during exclusion or deportation proceedings.
(iv) Any appeal which is filed that: Fails to state the reason for the appeal; is filed solely on the basis of a denial for failure to file the petition for adjustment of status under part 210a of this title in a timely manner; or is patently frivolous, will be summarily dismissed. An appeal received after the thirty (30) day period has tolled will not be accepted for processing.
(b) Oral argument regarding appeal before AAU—(1) Request. If the affected party desires oral argument, the affected party must explain in writing specifically why oral argument is necessary. For such a request to be considered, it must be submitted within the time allowed for meeting other requirements.
(2) Decision about oral argument. The Service has sole authority to grant or deny a request for oral argument. Upon approval of a request for oral argument, the AAU shall set the time, date, place, and conditions of oral argument.
(c) Service precedent decisions. The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General decisions relating to the administration of the immigration laws of the United States for publication as precedent in future proceedings, and upon approval of the Attorney General as to the lawfulness of such decision, the Director of the Executive Office for Immigration Review shall cause such decisions to be published in the same manner as decisions of the Board and the Attorney General. In addition to Attorney General and Board decisions referred to in §1003.1(g) of chapter V, designated Service decisions are to serve as precedents in all proceedings involving the same issue(s). Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act. Precedent decisions must be published and made available to the public as described in 8 CFR 103.10(e).
[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb. 28, 2003; 76 FR 53781, Aug. 29, 2011]
(a) Certification of other than special agricultural worker and legalization cases—(1) General. The Commissioner or the Commissioner's delegate may direct that any case or class of cases be certified to another Service official for decision. In addition, regional commissioners, regional service center directors, district directors, officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City, Mexico), and 37 (Rome, Italy), and the Director, National Fines Office, may certify their decisions to the appropriate appellate authority (as designated in this chapter) when the case involves an unusually complex or novel issue of law or fact.
(2) Notice to affected party. When a case is certified to a Service officer, the official certifying the case shall notify the affected party using a Notice of Certification (Form I-290C). The affected party may submit a brief to the officer to whom the case is certified within 30 days after service of the notice. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.
(3) Favorable action. The Service officer to whom a case is certified may suspend the 30-day period for submission of a brief if that officer takes action favorable to the affected party.
(4) Initial decision. A case within the appellate jurisdiction of the Associate Commissioner, Examinations, or for which there is no appeal procedure may be certified only after an initial decision is made.
(5) Certification to AAU. A case described in paragraph (a)(4) of this section may be certified to the AAU.
(6) Appeal to Board. In a case within the Board's appellate jurisdiction, an unfavorable decision of the Service official to whom the case is certified (whether made initially or upon review) is the decision which may be appealed to the Board under §3.1(b) of this chapter.
(7) Other applicable provisions. The provisions of §103.3(a)(2)(x) of this part also apply to decisions on certified cases. The provisions of §103.3(b) of this part also apply to requests for oral argument regarding certified cases considered by the AAU.
(b) Certification of denials of special agricultural worker and legalization applications. The Regional Processing Facility director or the district director may, in accordance with paragraph (a) of this section, certify a decision to the Associate Commissioner, Examinations (Administrative Appeals Unit) (the appellate authority designated in §103.1(f)(2)) of this part, when the case involves an unusually complex or novel question of law or fact.
[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55 FR 20770, May 21, 1990]
§103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases—(1) When filed by affected party—(i) General. Except where the Board has jurisdiction and as otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the affected party files a motion, the official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision. Motions to reopen or reconsider are not applicable to proceedings described in §274a.9 of this chapter. Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner.
(ii) Jurisdiction. The official having jurisdiction is the official who made the latest decision in the proceeding unless the affected party moves to a new jurisdiction. In that instance, the new official having jurisdiction is the official over such a proceeding in the new geographical locations.
(iii) Filing Requirements—A motion shall be submitted on Form I-290B and may be accompanied by a brief. It must be:
(A) In writing and signed by the affected party or the attorney or representative of record, if any;
(B) Accompanied by a nonrefundable fee as set forth in §103.7;
(C) Accompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding;
(D) Addressed to the official having jurisdiction; and
(E) Submitted to the office maintaining the record upon which the unfavorable decision was made for forwarding to the official having jurisdiction.
(iv) Effect of motion or subsequent application or petition. Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution of any decision in a case or extend a previously set departure date.
(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because:
(i) The requested evidence was not material to the issue of eligibility;
(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or
(iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.
(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
(4) Processing motions in proceedings before the Service. A motion that does not meet applicable requirements shall be dismissed. Where a motion to reopen is granted, the proceeding shall be reopened. The notice and any favorable decision may be combined.
(5) Motion by Service officer—(i) Service motion with decision favorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision in order to make a new decision favorable to the affected party, the Service officer shall combine the motion and the favorable decision in one action.
(ii) Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.
(6) Appeal to AAU from Service decision made as a result of a motion. A field office decision made as a result of a motion may be applied to the AAU only if the original decision was appealable to the AAU.
(7) Other applicable provisions. The provisions of §103.3(a)(2)(x) of this part also apply to decisions on motions. The provisions of §103.3(b) of this part also apply to requests for oral argument regarding motions considered by the AAU.
(8) Treating an appeal as a motion. The official who denied an application or petition may treat the appeal from that decision as a motion for the purpose of granting the motion.
(b) Motions to reopen or reconsider denials of special agricultural worker and legalization applications. Upon the filing of an appeal to the Associate Commissioner, Examinations (Administrative Appeals Unit), the Director of a Regional Processing Facility or the consular officer at an Overseas Processing Office may sua sponte reopen any proceeding under his or her jurisdiction opened under part 210 or 245a of this chapter and may reconsider any decision rendered in such proceeding. The new decision must be served on the appellant within 45 days of receipt of any brief and/or new evidence, or upon expiration of the time allowed for the submission of a brief. The Associate Commissioner, Examinations, or the Chief of the Administrative Appeals Unit may sua sponte reopen any proceeding conducted by that Unit under part 210 or 245a of this chapter and reconsider any decision rendered in such proceeding. Motions to reopen a proceeding or reconsider a decision under part 210 or 245a of this chapter shall not be considered.
(c) Motions to reopen or reconsider decisions on replenishment agricultural worker petitions. (1) The director of a regional processing facility may sua sponte reopen any proceeding under part 210a of this title which is within his or her jurisdiction and may render a new decision. This decision may reverse a prior favorable decision when it is determined that there was fraud during the registration or petition processes and the petitioner was not entitled to the status granted. The petitioner must be given an opportunity to offer evidence in support of the petition and in opposition to the grounds for reopening the petition before a new decision is rendered.
(2) The Associate Commissioner, Examinations or the Chief of the Administrative Appeals Unit may sua sponte reopen any proceeding conducted by that unit under part 210a of this title and reconsider any decision rendered in such proceeding.
(3) Motions to reopen a proceeding or reconsider a decision under part 210a of this title shall not be considered.
[27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965; 32 FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25, 1990; 56 FR 41782, Aug. 23, 1991; 59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr. 29, 1996; 62 FR 10336, Mar. 6, 1997; 70 FR 50957, Aug. 29, 2005]
§103.6 Surety bonds.
(a) Posting of surety bonds—(1) Extension agreements; consent of surety; collateral security. All surety bonds posted in immigration cases shall be executed on Form I-352, Immigration Bond, a copy of which, and any rider attached thereto, shall be furnished the obligor. A district director is authorized to approve a bond, a formal agreement to extension of liability of surety, a request for delivery of collateral security to a duly appointed and undischarged administrator or executor of the estate of a deceased depositor, and a power of attorney executed on Form I-312, Designation of Attorney in Fact. All other matters relating to bonds, including a power of attorney not executed on Form I-312 and a request for delivery of collateral security to other than the depositor or his or her approved attorney in fact, shall be forwarded to the regional director for approval.
(2) Bond riders—(i) General. Bond riders shall be prepared on Form I-351, Bond Riders, and attached to Form I-352. If a condition to be included in a bond is not on Form I-351, a rider containing the condition shall be executed.
(b) Acceptable sureties. Either a company holding a certificate from the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable surety on Federal bonds, or a surety who deposits cash or U.S. bonds or notes of the class described in 6 U.S.C. 15 and Treasury Department regulations issued pursuant thereto and which are not redeemable within 1 year from the date they are offered for deposit is an acceptable surety.
(c) Cancellation—(1) Public charge bonds. A public charge bond posted for an immigrant shall be cancelled when the alien dies, departs permanently from the United States or is naturalized, provided the immigrant did not become a public charge prior to death, departure, or naturalization. The district director may cancel a public charge bond at any time if he/she finds that the immigrant is not likely to become a public charge. A bond may also be cancelled in order to allow substitution of another bond. A public charge bond shall be cancelled by the district director upon review following the fifth anniversity of the admission of the immigrant, provided that the alien has filed Form I-356, Request for Cancellation of Public Charge Bond, and the district director finds that the immigrant did not become a public charge prior to the fifth anniversary. If Form I-356 is not filed, the bond shall remain in effect until the form is filed and the district director reviews the evidence supporting the form and renders a decision to breach or cancel the bond.
(2) Maintenance of status and departure bonds. When the status of a nonimmigrant who has violated the conditions of his admission has been adjusted as a result of administrative or legislative action to that of a permanent resident retroactively to a date prior to the violation, any outstanding maintenance of status and departure bond shall be canceled. If an application for adjustment of status is made by a nonimmigrant while he is in lawful temporary status, the bond shall be canceled if his status is adjusted to that of a lawful permanent resident or if he voluntarily departs within any period granted to him. As used in this paragraph, the term lawful temporary status means that there must not have been a violation of any of the conditions of the alien's nonimmigrant classification by acceptance of unauthorized employment or otherwise during the time he has been accorded such classification, and that from the date of admission to the date of departure or adjustment of status he must have had uninterrupted Service approval of his presence in the United States in the form of regular extensions of stay or dates set by which departure is to occur, or a combination of both. An alien admitted as a nonimmigrant shall not be regarded as having violated his nonimmigrant status by engaging in employment subsequent to his proper filing of an application for adjustment of status under section 245 of the Act and part 245 of this chapter. A maintenance of status and departure bond posted at the request of an American consular officer abroad in behalf of an alien who did not travel to the United States shall be canceled upon receipt of notice from an American consular officer that the alien is outside the United States and the nonimmigrant visa issued pursuant to the posting of the bond has been canceled or has expired.
(3) Substantial performance. Substantial performance of all conditions imposed by the terms of a bond shall release the obligor from liability.
(d) Bond schedules—(1) Blanketbonds for departure of visitors and transits. The amount of bond required for various numbers of nonimmigrant visitors or transits admitted under bond on Forms I-352 shall be in accordance with the following schedule:
1 to 4—$500 each.
5 to 9—$2,500 total bond.
10 to 24—$3,500 total bond.
25 to 49—$5,000 total bond.
50 to 74—$6,000 total bond.
75 to 99—$7,000 total bond.
100 to 124—$8,000 total bond.
125 to 149—$9,000 total bond.
150 to 199—$10,000 total bond.
200 or more—$10,000 plus $50 for each alien over 200.
(2) Blanket bonds for importation of workers classified as nonimmigrants under section 101(a)(15)(H). The following schedule shall be employed by district directors when requiring employers or their agents or representatives to post bond as a condition to importing alien laborers into the United States from the West Indies, the British Virgin Islands, or from Canada:
Less than 500 workers—$15 each
500 to 1,000 workers—$10 each
1,000 or more workers—$5 each
A bond shall not be posted for less than $1,000 or for more than $12,000 irrespective of the number of workers involved. Failure to comply with conditions of the bond will result in the employer's liability in the amount of $200 as liquidated damages for each alien involved.
(e) Breach of bond. A bond is breached when there has been a substantial violation of the stipulated conditions. A final determination that a bond has been breached creates a claim in favor of the United States which may not be released or discharged by a Service officer. The district director having custody of the file containing the immigration bond executed on Form I-352 shall determine whether the bond shall be declared breached or cancelled, and shall notify the obligor on Form I-323 or Form I-391 of the decision, and, if declared breached, of the reasons therefor, and of the right to appeal in accordance with the provisions of this part.
[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33 FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23, 1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR 42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11, 1984; 60 FR 21974, May 4, 1995; 62 FR 10336, Mar. 6, 1997; 76 FR 53781, Aug. 29, 2011]
(a) Remittances. (1) Fees shall be submitted with any formal application or petition prescribed in this chapter in the amount prescribed by law or regulation. Except for fees remitted directly to the Board of Immigration Appeals pursuant to the provisions of 8 CFR 1003.8, or as the Attorney General otherwise may provide by regulation, any fee relating to any Department of Justice Executive Office for Immigration Review proceeding shall be paid to, and accepted by, any USCIS office authorized to accept fees. The immigration court does not collect fees. Payment of any fee under this section does not constitute filing of the document with the Board of Immigration Appeals or with the Immigration Court. The Department of Homeland Security shall return to the payer, at the time of payment, a receipt for any fee paid. The USCIS shall also return to the payer any documents, submitted with the fee, relating to any Immigration Court proceeding.
(2) Remittances must be drawn on a bank or other institution located in the United States and be payable in United States currency. Remittances must be made payable in accordance with the guidance specific to the applicable U.S. Government office when submitting to a Department of Homeland Security office located outside of the United States. Remittances to the Board of Immigration Appeals must be made payable to the “United States Department of Justice,” in accordance with 8 CFR 1003.8. If a remittance in payment of a fee or any other matter is not honored by the bank or financial institution on which it is drawn:
(i) A charge of $30.00 will be imposed;
(ii) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will be issued, and if a receipt was issued, it is void and the benefit request loses its receipt date; and
(iii) If the benefit request was approved, the approval may be revoked upon notice. If the approved benefit request requires multiple fees, this provision will apply if any fee submitted is not honored. Other fees that were paid for a benefit request that is revoked under this provision will be retained and not refunded. A revocation of an approval because the fee submitted is not honored may be appealed to the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3 and the applicable form instructions.
(b) Amounts of fees—(1) Established fees and charges—(i) USCIS fees. A request for immigration benefits submitted to USCIS must include the required fee as established under this section. The fees established in this section are associated with the benefit, the adjudication, or the type of request and not solely determined by the form number listed below. The term “form” as defined in 8 CFR part 1, may include a USCIS-approved electronic equivalent of such form as USCIS may provide on its official Web site at http://www.uscis.gov.
(A) Certification of true copies: $2.00 per copy.
(B) Attestation under seal: $2.00 each.
(C) Biometric services fee. For capturing, storing, and using biometric information (Biometric Fee). A service fee of $85 will be charged to pay for background checks and have their biometric information captured, stored, and used for any individual who is required to submit biometric information for an application, petition, or other request for certain immigration and naturalization benefits (other than asylum or refugee status) or actions. USCIS will not charge a biometric services fee when:
(1) An applicant under 8 CFR 204.3 submits to USCIS a written request for an extension of the approval period of an Application for Advance Processing of an Orphan Petition (Application), if the request is submitted before the approval period expires and the applicant has not yet filed a Petition to Classify Orphan as an Immediate Relative (Petition) in connection with the approved Application. The applicant may submit only one extension request without having to pay an additional biometric services fee. If the extension of the approval expires before the applicant files an associated Petition, then the applicant must file either a new Application or a Petition, and pay a new filing fee and a new biometric services fee.
(2) The application or petition fee for the associated request has been waived under paragraph (c) of this section; or
(3) The associated benefit request is one of the following:
(i) Application for Posthumous Citizenship, Form N-644;
(ii) Refugee/Asylee Relative Petition, Form I-730;
(iii) Application for T Nonimmigrant Status, Form I-914;
(iv) Petition for U Nonimmigrant Status, Form I-918;
(v) Application for Naturalization, Form N-400, by an applicant who meets the requirements of sections 328 or 329 of the Act with respect to military service under paragraph (b)(1)(i)(WW) of this section;
(vi) Application to Register Permanent Residence or Adjust Status, Form I-485, from an asylee under paragraph (b)(1)(i)(U) of this section;
(vii) Application To Adjust Status under Section 245(i) of the Act, Supplement A to Form I-485, from an unmarried child less than 17 years of age, or when the applicant is the spouse, or the unmarried child less than 21 years of age of a legalized foreign national and who is qualified for and has applied for voluntary departure under the family unity program from an asylee under paragraph (b)(1)(i)(V) of this section; or
(viii) Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, meeting the requirements of paragraphs (b)(1)(i)(T)(1), (2), (3) or (4) of this section.
(D) USCIS Immigrant Fee. For DHS domestic processing and issuance of required documents after an immigrant visa is issued by the U.S. Department of State: $220.
(E) Request for a search of indices to historical records to be used in genealogical research, Form G-1041: $65. The search request fee is not refundable.
(F) Request for a copy of historical records to be used in genealogical research, Form G-1041A: $65. USCIS will refund the records request fee only when it is unable to locate the file previously identified in response to the index search request.
(G) Application to Replace Permanent Resident Card, Form I-90. For filing an application for a Permanent Resident Card, Form I-551, to replace an obsolete card or to replace one lost, mutilated, or destroyed, or for a change in name: $455.
(H) Application for Replacement/Initial Nonimmigrant Arrival-Departure Document, Form I-102. For filing a petition for an application for Arrival/Departure Record Form I-94, or Crewman's Landing Permit Form I-95, to replace one lost, mutilated, or destroyed: $445.
(I) Petition for a Nonimmigrant Worker, Form I-129. For filing a petition for a nonimmigrant worker: $460.
(J) Petition for Nonimmigrant Worker in CNMI, Form I-129CW. For an employer to petition on behalf of one or more beneficiaries: $460 plus a supplemental CNMI education funding fee of $150 per beneficiary per year. The CNMI education funding fee cannot be waived.
(K) Petition for Alien Fiancé(e), Form I-129F. For filing a petition to classify a nonimmigrant as a fiancée or fiancé under section 214(d) of the Act: $535; there is no fee for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the beneficiary of an immigrant petition filed by a United States citizen on a Petition for Alien Relative, Form I-130.
(L) Petition for Alien Relative, Form I-130. For filing a petition to classify status of a foreign national relative for issuance of an immigrant visa under section 204(a) of the Act: $535.
(M) Application for Travel Document, Form I-131. For filing an application for travel document:
(1) $135 for a Refugee Travel Document for an individual age 16 or older.
(2) $105 for a Refugee Travel Document for a child under the age of 16.
(3) $575 for advance parole and any other travel document.
(4) No fee if filed in conjunction with a pending or concurrently filed Form I-485 with fee that was filed on or after July 30, 2007.
(N) Immigrant Petition for Alien Worker, Form I-140. For filing a petition to classify preference status of an alien on the basis of profession or occupation under section 204(a) of the Act: $700.
(O) Application for Advance Permission to Return to Unrelinquished Domicile, Form I-191. For filing an application for discretionary relief under section 212(c) of the Act: $930.
(P) Application for Advance Permission to Enter as a Nonimmigrant, Form I-192. For filing an application for discretionary relief under section 212(d)(3) of the Act, except in an emergency case or where the approval of the application is in the interest of the United States Government: $930. If filed with and processed by CBP: $585.
(Q) Application for Waiver for Passport and/or Visa, Form I-193. For filing an application for waiver of passport and/or visa: $585.
(R) Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212. For filing an application for permission to reapply for an excluded, deported or removed alien, an alien who has fallen into distress, an alien who has been removed as an alien enemy, or an alien who has been removed at government expense instead of deportation: $930.
(S) Notice of Appeal or Motion, Form I-290B. For appealing a decision under the immigration laws in any type of proceeding over which the Board of Immigration Appeals does not have appellate jurisdiction: $675. The fee will be the same for appeal of a denial of a benefit request with one or multiple beneficiaries. There is no fee for an appeal or motion associated with a denial of a petition for a special immigrant visa filed by or on behalf of an individual seeking special immigrant visa or status as an Iraqi or Afghan national who was employed by or on behalf of the U.S. Government in Iraq or Afghanistan.
(T) Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360. For filing a petition for an Amerasian, Widow(er), or Special Immigrant: $435. The following requests are exempt from this fee:
(1) A petition seeking classification as an Amerasian;
(2) A self-petition for immigrant status as a battered or abused spouse, parent, or child of a U.S. citizen or lawful permanent resident; or
(3) A petition for special immigrant juvenile status; or
(4) A petition seeking special immigrant visa or status an Iraqi or Afghan national who was employed by or on behalf of the U.S. Government in Iraq or Afghanistan.
(U) Application to Register Permanent Residence or Adjust Status, Form I-485. For filing an application for permanent resident status or creation of a record of lawful permanent residence:
(1) $1,140 for an applicant 14 years of age or older; or
(2) $750 for an applicant under the age of 14 years who submits the application concurrently with the Form I-485 of a parent.
(3) There is no fee if an applicant is filing as a refugee under section 209(a) of the Act.
(V) Application to Adjust Status under Section 245(i) of the Act, Supplement A to Form I-485. Supplement to Form I-485 for persons seeking to adjust status under the provisions of section 245(i) of the Act: $1,000. There is no fee when the applicant is an unmarried child less than 17 years of age, when the applicant is the spouse, or the unmarried child less than 21 years of age of an individual with lawful immigration status and who is qualified for and has applied for voluntary departure under the family unity program.
(W) Immigrant Petition by Alien Entrepreneur, Form I-526. For filing a petition for an alien entrepreneur: $3,675.
(X) Application To Extend/Change Nonimmigrant Status, Form I-539. For filing an application to extend or change nonimmigrant status: $370.
(Y) Petition to Classify Orphan as an Immediate Relative, Form I-600. For filing a petition to classify an orphan as an immediate relative for issuance of an immigrant visa under section 204(a) of the Act. Only one fee is required when more than one petition is submitted by the same petitioner on behalf of orphans who are brothers or sisters: $775.
(Z) Application for Advance Processing of Orphan Petition, Form I-600A. For filing an application for advance processing of orphan petition. (When more than one petition is submitted by the same petitioner on behalf of orphans who are brothers or sisters, only one fee will be required.): $775. No fee is charged if Form I-600 has not yet been submitted in connection with an approved Form I-600A subject to the following conditions:
(1) The applicant requests an extension of the approval in writing and the request is received by USCIS before the expiration date of approval; and
(2) The applicant's home study is updated and USCIS determines that proper care will be provided to an adopted orphan.
(3) A no fee extension is limited to one occasion. If the Form I-600A approval extension expires before submission of an associated Form I-600, then a complete application and fee must be submitted for any subsequent application.
(AA) Application for Waiver of Ground of Inadmissibility, Form I-601. For filing an application for waiver of grounds of inadmissibility: $930.
(BB) Application for Provisional Unlawful Presence Waiver, Form I-601A. For filing an application for provisional unlawful presence waiver: $630.
(CC) Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended), Form I-612. For filing an application for waiver of the foreign-residence requirement under section 212(e) of the Act: $930.
(DD) Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, Form I-687. For filing an application for status as a temporary resident under section 245A(a) of the Act: $1,130.
(EE) Application for Waiver of Grounds of Inadmissibility under Sections 245A or 210 of the Immigration and Nationality Act, Form I-690. For filing an application for waiver of a ground of inadmissibility under section 212(a) of the Act as amended, in conjunction with the application under sections 210 or 245A of the Act, or a petition under section 210A of the Act: $715.
(FF) Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act (or a petition under section 210A of the Act), Form I-694. For appealing the denial of an application under sections 210 or 245A of the Act, or a petition under section 210A of the Act: $890.
(GG) Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Pub. L. 99-603), Form I-698. For filing an application to adjust status from temporary to permanent resident (under section 245A of Pub. L. 99-603): $1,670. The adjustment date is the date of filing of the application for permanent residence or the applicant's eligibility date, whichever is later.
(HH) Petition to Remove Conditions on Residence, Form I-751. For filing a petition to remove the conditions on residence based on marriage: $595.
(II) Application for Employment Authorization, Form I-765. $410. No fee if filed in conjunction with a pending or concurrently filed Form I-485 with fee that was filed on or after July 30, 2007.
(JJ) Petition to Classify Convention Adoptee as an Immediate Relative, Form I-800.
(1) There is no fee for the first Form I-800 filed for a child on the basis of an approved Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I-800A, during the approval period.
(2) If more than one Form I-800 is filed during the approval period for different children, the fee is $775 for the second and each subsequent petition submitted.
(3) If the children are already siblings before the proposed adoption, however, only one filing fee of $775 is required, regardless of the sequence of submission of the immigration benefit.
(KK) Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I-800A. For filing an application for determination of suitability to adopt a child from a convention country: $775.
(LL) Request for Action on Approved Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I-800A, Supplement 3. This filing fee is not charged if Form I-800 has not been filed based on the approval of the Form I- 800A, and Form I-800A Supplement 3 is filed in order to obtain a first extension of the approval of the Form I-800A: $385.
(MM) Application for Family Unity Benefits, Form I-817. For filing an application for voluntary departure under the Family Unity Program: $600.
(NN) Application for Temporary Protected Status, Form I-821. For first time applicants: $50. There is no fee for re-registration.
(OO) Application for Action on an Approved Application or Petition, Form I-824. For filing for action on an approved application or petition: $465.
(PP) Petition by Entrepreneur to Remove Conditions, Form I-829. For filing a petition by entrepreneur to remove conditions: $3,750.
(QQ) Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100), Form I-881:
(1) $285 for adjudication by DHS, except that the maximum amount payable by family members (related as husband, wife, unmarried child under 21, unmarried son, or unmarried daughter) who submit applications at the same time will be $570.
(2) $165 for adjudication by the Immigration Court (a single fee of $165 will be charged whenever applications are filed by two or more foreign nationals in the same proceedings).
(3) The $165 fee is not required if the Form I-881 is referred to the Immigration Court by DHS.
(RR) Application for Authorization to Issue Certification for Health Care Workers, Form I-905: $230.
(SS) Request for Premium Processing Service, Form I-907. $1,410. The Request for Premium Processing Service fee:
(1) Must be paid in addition to, and in a separate remittance from, other filing fees.
(2) May be adjusted annually by notice in the Federal Register based on inflation according to the Consumer Price Index (CPI).
(3) May not be waived.
(TT) Application for Civil Surgeon Designation, Form I-910. For filing an application for civil surgeon designation: $785. There is no fee for an application from a medical officer in the U.S. Armed Forces or civilian physician employed by the U.S. Government who examines members and veterans of the Armed Forces and their dependents at a military, Department of Veterans Affairs, or U.S. Government facility in the United States.
(UU) Application for T Nonimmigrant Status, Form I-914. No fee.
(VV) Application for U Nonimmigrant Status, Form I-918. No fee.
(WW) Application for Regional Center Designation under the Immigrant Investor Program, Form I-924. For filing an application for regional center designation under the Immigrant Investor Program: $17,795.
(XX) Annual Certification of Regional Center, Form I-924A. To provide updated information and certify that an Immigrant Investor Regional Center has maintained their eligibility: $3,035.
(YY) Petition for Qualifying Family Member of a U-1 Nonimmigrant, Form I-929. For U-1 principal applicant to submit for each qualifying family member who plans to seek an immigrant visa or adjustment of U status: $230.
(ZZ) Application to File Declaration of Intention, Form N-300. For filing an application for declaration of intention to become a U.S. citizen: $270.
(AAA) Request for a Hearing on a Decision in Naturalization Proceedings (Under section 336 of the Act), Form N-336. For filing a request for hearing on a decision in naturalization proceedings under section 336 of the Act: $700. There is no fee if filed on or after October 1, 2004, by an applicant who has filed an Application for Naturalization under sections 328 or 329 of the Act with respect to military service and whose application has been denied.
(BBB) Application for Naturalization, Form N-400. For filing an application for naturalization: $640. Except:
(1) The fee for an applicant whose documented income is greater than 150 percent and not more than 200 percent of the Federal poverty level is $320.
(2) No fee is charged an applicant who meets the requirements of sections 328 or 329 of the Act with respect to military service.
(CCC) Application to Preserve Residence for Naturalization Purposes, Form N-470. For filing an application for benefits under section 316(b) or 317 of the Act: $355.
(DDD) Application for Replacement Naturalization/Citizenship Document, Form N-565. For filing an application for a certificate of naturalization or declaration of intention in place of a certificate or declaration alleged to have been lost, mutilated, or destroyed; for a certificate of citizenship in a changed name under section 343(c) of the Act; or for a special certificate of naturalization to obtain recognition as a citizen of the United States by a foreign state under section 343(b) of the Act: $555. There is no fee when this application is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a certificate that contains an error.
(EEE) Application for Certificate of Citizenship, Form N-600. For filing an application for a certificate of citizenship under section 309(c) or section 341 of the Act: $1,170. There is no fee for any application filed by a member or veteran of any branch of the United States Armed Forces.
(FFF) Application for Citizenship and Issuance of Certificate under section 322 of the Act, Form N-600K. For filing an application for citizenship and issuance of certificate under section 322 of the Act: $1,170.
(GGG) American Competitiveness and Workforce Improvement Act (ACWIA) fee. For filing certain H-1B petitions as described in 8 CFR 214.2(h)(19) and USCIS form instructions: $1,500 or $750.
(HHH) Fraud detection and prevention fee. For filing certain H-1B and L petitions, and $150 for H-2B petitions as described in 8 CFR 214.2(h)(19): $500.
(III) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. For certain petitioners who employ 50 or more employees in the United States if more than 50 percent of the petitioner's employees are in H-1B, L-1A or L-1B nonimmigrant status: $4,000. Collection of this fee is scheduled to end on September 30, 2025.
(JJJ) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa. For certain petitioners who employ 50 or more employees in the United States, if more than 50 percent of the petitioner's employees are in H-1B, L-1A or L-1B nonimmigrant status: $4,500. Collection of this fee is scheduled to end on September 30, 2025.
(KKK) Application for Entrepreneur Parole (Form I-941). For filing an application for parole for entrepreneurs: $1200.
(ii) Other DHS immigration fees. The following fees are applicable to one or more of the immigration components of DHS:
(A) DCL System Costs Fee. For use of a Dedicated Commuter Lane (DCL) located at specific ports-of-entry of the United States by an approved participant in a designated vehicle: $80.00, with the maximum amount of $160.00 payable by a family (husband, wife, and minor children under 18 years of age). Payable following approval of the application but before use of the DCL by each participant. This fee is non-refundable, but may be waived by DHS. If a participant wishes to enroll more than one vehicle for use in the PORTPASS system, he or she will be assessed with an additional fee of: $42 for each additional vehicle enrolled.
(B) Form I-17. For filing a petition for school certification: $1,700, plus a site visit fee of $655 for each location listed on the form.
(C) Form I-68. For application for issuance of the Canadian Border Boat Landing Permit under section 235 of the Act: $16.00. The maximum amount payable by a family (husband, wife, unmarried children under 21 years of age, and parents of either husband or wife) shall be $32.00.
(D) Form I-94. For issuance of Arrival/Departure Record at a land border port-of-entry: $6.00.
(E) Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/Departure Form at a land border port-of-entry under section 217 of the Act: $6.00.
(F) Form I-246. For filing application for stay of deportation under 8 CFR part 243: $155.00.
(G) Form I-823. For application to a PORTPASS program under section 286 of the Act—$25.00, with the maximum amount of $50.00 payable by a family (husband, wife, and minor children under 18 years of age). The application fee may be waived by the district director. If fingerprints are required, the inspector will inform the applicant of the current Federal Bureau of Investigation fee for conducting fingerprint checks prior to accepting the application fee. Both the application fee (if not waived) and the fingerprint fee must be paid to CBP before the application will be processed. The fingerprint fee may not be waived. For replacement of PORTPASS documentation during the participation period: $25.00.
(H) Form I-901. For remittance of the I-901 SEVIS fee for F and M students: $200. For remittance of the I-901 SEVIS fee for certain J exchange visitors: $180. For remittance of the I-901 SEVIS fee for J-1 au pairs, camp counselors, and participants in a summer work/travel program: $35. There is no I-901 SEVIS fee remittance obligation for J exchange visitors in federally-funded programs with a program identifier designation prefix that begins with G-1, G-2, G-3 or G-7.
(I) Special statistical tabulations—a charge will be made to cover the cost of the work involved: DHS Cost.
(J) Set of monthly, semiannual, or annual tables entitled “Passenger Travel Reports via Sea and Air”: $7.00. Available from DHS, then the Immigration & Naturalization Service, for years 1975 and before. Later editions are available from the United States Department of Transportation, contact: United States Department of Transportation, Transportation Systems Center, Kendall Square, Cambridge, MA 02142.
(K) Classification of a citizen of Canada to be engaged in business activities at a professional level pursuant to section 214(e) of the Act (Chapter 16 of the North American Free Trade Agreement): $50.00.
(L) Request for authorization for parole of an alien into the United States: $65.00.
(M) Global Entry. For filing an application for Global Entry—$100.
(N) U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card. For filing an application for the card—$70.
(2) Fees for copies of records. Fees for production or disclosure of records under 5 U.S.C. 552 shall be charged in accordance with the regulations of the Department of Homeland Security at 6 CFR 5.11.
(3) Adjustment to fees. The fees prescribed in paragraph (b)(1)(i) of this section may be adjusted annually by publication of an inflation adjustment. The inflation adjustment will be announced by a publication of a notice in the Federal Register. The adjustment shall be a composite of the Federal civilian pay raise assumption and non-pay inflation factor for that fiscal year issued by the Office of Management and Budget for agency use in implementing OMB Circular A-76, weighted by pay and non-pay proportions of total funding for that fiscal year. If Congress enacts a different Federal civilian pay raise percentage than the percentage issued by OMB for Circular A-76, the Department of Homeland Security may adjust the fees, during the current year or a following year to reflect the enacted level. The prescribed fee or charge shall be the amount prescribed in paragraph (b)(1)(i) of this section, plus the latest inflation adjustment, rounded to the nearest $5 increment.
(4) Fees for immigration court and Board of Immigration Appeals. Fees for proceedings before immigration judges and the Board of Immigration Appeals are provided in 8 CFR 1103.7.
(c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary waiver of the fees provided in paragraph (b)(1)(i) of this section are limited as follows:
(i) The party requesting the benefit is unable to pay the prescribed fee.
(ii) A waiver based on inability to pay is consistent with the status or benefit sought including requests that require demonstration of the applicant's ability to support himself or herself, or individuals who seek immigration status based on a substantial financial investment.
(2) Requesting a fee waiver. To request a fee waiver, a person requesting an immigration benefit must submit a written request for permission to have their request processed without payment of a fee with their benefit request. The request must state the person's belief that he or she is entitled to or deserving of the benefit requested, the reasons for his or her inability to pay, and evidence to support the reasons indicated. There is no appeal of the denial of a fee waiver request.
(3) USCIS fees that may be waived. No fee relating to any application, petition, appeal, motion, or request made to U.S. Citizenship and Immigration Services may be waived except for the following:
(i) Biometric Fee, except for the biometric fee required for provisional unlawful presence waivers filed under 8 CFR 212.7(e).
(ii) Application to Replace Permanent Resident Card,
(iii) A Petition for a CNMI-Only Nonimmigrant Transitional Worker, or an Application to Extend/Change Nonimmigrant Status only in the case of an alien applying for CW-2 nonimmigrant status,
(iv) Application for Travel Document when filed to request humanitarian parole,
(v) Application for Advance Permission to Return to Unrelinquished Domicile,
(vi) Notice of Appeal or Motion, when there is no fee for the underlying application or petition or that fee may be waived,
(vii) Petition to Remove the Conditions of Residence based on marriage (Form I-751),
(viii) Application for Employment Authorization,
(ix) Application for Family Unity Benefits,
(x) Application for Temporary Protected Status,
(xi) Application for Suspension of Deportation or Special Rule Cancellation of Removal (pursuant to section 203 of Pub. L. 105-110),
(xii) Application to File Declaration of Intention, Request for a Hearing on a Decision in Naturalization Proceedings (under section 336 of the INA),
(xiii) Application for Naturalization,
(xiv) Application to Preserve Residence for Naturalization Purposes,
(xv) Application for Replacement Naturalization/Citizenship Document,
(xvi) Application for Certificate of Citizenship,
(xvii) Application for Citizenship and Issuance of Certificate under section 322 of this Act,
(xviii) Any fees associated with the filing of any benefit request by a VAWA self-petitioner or under sections 101(a)(15)(T) (T visas), 101(a)(15)(U) (U visas), 106 (battered spouses of A, G, E-3, or H nonimmigrants), 240A(b)(2) (battered spouse or child of a lawful permanent resident or U.S. citizen), and 244(a)(3) (Temporary Protected Status), of the Act (as in effect on March 31, 1997); and
(xix) Petition for Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539), only in the case of an alien applying for E-2 CNMI Investor nonimmigrant status under 8 CFR 214.2(e)(23).
(4) The following fees may be waived only for an alien for which a determination of their likelihood of becoming a public charge under section 212(a)(4) of the Act is not required at the time of an application for admission or adjustment of status.:
(i) Application for Advance Permission to Enter as Nonimmigrant;
(ii) Application for Waiver for Passport and/or Visa;
(iii) Application to Register Permanent Residence or Adjust Status;
(iv) Application for Waiver of Grounds of Inadmissibility.
(5) Immigration Court fees. The provisions relating to the authority of the immigration judges or the Board to waive fees prescribed in paragraph (b) of this section in cases under their jurisdiction can be found at 8 CFR 1003.8 and 1003.24.
(6) Fees under the Freedom of Information Act (FOIA). FOIA fees may be waived or reduced if DHS determines that such action would be in the public interest because furnishing the information can be considered as primarily benefiting the general public.
(d) Exceptions and exemptions. The Director of USCIS may approve and suspend exemptions from any fee required by paragraph (b)(1)(i) of this section or provide that the fee may be waived for a case or specific class of cases that is not otherwise provided in this section, if the Director determines that such action would be in the public interest and the action is consistent with other applicable law. This discretionary authority will not be delegated to any official other than the USCIS Deputy Director.
(e) Premium processing service. A person submitting a request to USCIS may request 15 calendar day processing of certain employment-based immigration benefit requests.
(1) Submitting a request for premium processing. A request for premium processing must be submitted on the form prescribed by USCIS, including the required fee, and submitted to the address specified on the form instructions.
(2) 15-day limitation. The 15 calendar day processing period begins when USCIS receives the request for premium processing accompanied by an eligible employment-based immigration benefit request.
(i) If USCIS cannot reach a final decision on a request for which premium processing was requested, as evidenced by an approval notice, denial notice, a notice of intent to deny, or a request for evidence, USCIS will refund the premium processing service fee, but continue to process the case.
(ii) USCIS may retain the premium processing fee and not reach a conclusion on the request within 15 days, and not notify the person who filed the request, if USCIS opens an investigation for fraud or misrepresentation relating to the benefit request.
(3) Requests eligible for premium processing.
(i) USCIS will designate the categories of employment-related benefit requests that are eligible for premium processing.
(ii) USCIS will announce by its official Internet Web site, currently http://www.uscis.gov, those requests for which premium processing may be requested, the dates upon which such availability commences and ends, and any conditions that may apply.
(f) Authority to certify records. The Director of USCIS, or such officials as he or she may designate, may certify records when authorized under 5 U.S.C. 552 or any other law to provide such records.
[38 FR 35296, Dec. 27, 1973]
Editorial Notes: 1. For Federal Register citations affecting §103.7, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.
2. At 73 FR 55698, Sept. 26, 2008, §103.7 was amended by revising Form I-290B; however, the amendment could not be incorporated because the text of the newly revised form was not provided.
§103.8 Service of decisions and other notices.
This section states authorized means of service by the Service on parties and on attorneys and other interested persons of notices, decisions, and other papers (except warrants and subpoenas) in administrative proceedings before Service officers as provided in this chapter.
(a) Types of service—(1) Routine service. (i) Routine service consists of mailing the notice by ordinary mail addressed to the affected party and his or her attorney or representative of record at his or her last known address, or
(ii) If so requested by a party, advising the party of such notice by electronic mail and posting the decision to the party's USCIS account.
(2) Personal service. Personal service, which shall be performed by a Government employee, consists of any of the following, without priority or preference:
(i) Delivery of a copy personally;
(ii) Delivery of a copy at a person's dwelling house or usual place of abode by leaving it with some person of suitable age and discretion;
(iii) Delivery of a copy at the office of an attorney or other person, including a corporation, by leaving it with a person in charge;
(iv) Mailing a copy by certified or registered mail, return receipt requested, addressed to a person at his last known address; or
(v) If so requested by a party, advising the party by electronic mail and posting the decision to the party's USCIS account.
(3) Personal service involving notices of intention to fine. In addition to any of the methods of personal service listed in paragraph (a)(2) of this section, personal service of Form I-79, Notice of Intention to Fine, may also consist of delivery of the Form I-79 by a commercial delivery service at the carrier's address on file with the National Fines Office, the address listed on the Form I-849, Record for Notice of Intent to Fine, or to the office of the attorney or agent representing the carrier, provided that such a commercial delivery service requires the addressee or other responsible party accepting the package to sign for the package upon receipt.
(b) Effect of service by mail. Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.
(c) When personal service required—(1) Generally. In any proceeding which is initiated by the Service, with proposed adverse effect, service of the initiating notice and of notice of any decision by a Service officer shall be accomplished by personal service, except as provided in section 239 of the Act.
(2) Persons confined, minors, and incompetents—(i) Persons confined. If a person is confined in a penal or mental institution or hospital and is competent to understand the nature of the proceedings initiated against him, service shall be made both upon him and upon the person in charge of the institution or the hospital. If the confined person is not competent to understand, service shall be made only on the person in charge of the institution or hospital in which he is confined, such service being deemed service on the confined person.
(ii) Incompetents and minors. In case of mental incompetency, whether or not confined in an institution, and in the case of a minor under 14 years of age, service shall be made upon the person with whom the incompetent or the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.
(d) When personal service not required. Service of other types of papers in proceedings described in paragraph (c) of this section, and service of any type of papers in any other proceedings, may be accomplished either by routine service or by personal service.
[37 FR 11470, June 8, 1972, as amended at 39 FR 23247, June 27, 1974; 62 FR 10336, Mar. 6, 1997; 64 FR 17944, Apr. 13, 1999. Redesignated and amended at 76 FR 53781, Aug. 29, 2011]
§103.9 Request for further action on an approved benefit request.
(a) Filing a request. A person may request further action on an approved benefit request as prescribed by the form instructions. Requests for further action may be submitted with the original benefit request or following the approval of such benefit.
(b) Processing. The request will be approved if the requester has demonstrated eligibility for the requested action. There is no appeal from the denial of such request.
[Redesignated and amended at 76 FR 53781, Aug. 29, 2011]
§103.10 Precedent decisions.
(a) Proceedings before the immigration judges, the Board of Immigration Appeals and the Attorney General are governed by part 1003 of 8 CFR chapter V.
(b) Decisions as precedents. Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States. By majority vote of the permanent Board members, selected decisions of the Board rendered by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security to the extent authorized in paragraph (i) of this section, shall serve as precedents in all proceedings involving the same issue or issues.
(c) Referral of cases to the Attorney General. (1) The Board shall refer to the Attorney General for review of its decision all cases which:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.
(iii) The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, refers to the Attorney General for review.
(2) In any case the Attorney General decides, the Attorney General's decision shall be stated in writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and service as provided in paragraph (c) of this section or 8 CFR 1003.1(h)(2).
(d) Publication of Secretary's precedent decisions. The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General Service precedent decisions as set forth in §103.3(c).
(e) Precedent decisions. Bound volumes of designated precedent decisions, entitled “Administrative Decisions under Immigration and Nationality Laws of the United States,” may be purchased from the Superintendent of Documents, U.S. Government Printing Office. Prior to publication in volume form, current precedent decisions are available from the Department of Justice, Executive Office for Immigration Review's Virtual Law Library at: http://www.justice.gov/eoir/vll/libindex.html.
[68 FR 9832, Feb. 28, 2003. Redesignated and amended at 76 FR 53781, Aug. 29, 2011]
Subpart B—Biometric Requirements
§103.16 Collection, use and storage of biometric information.
(a) Use of biometric information. An individual may be required to submit biometric information by law, regulation, Federal Register notice or the form instructions applicable to the request type or if required in accordance with 8 CFR 103.2(b)(9). DHS may collect and store for present or future use, by electronic or other means, the biometric information submitted by an individual. DHS may use this biometric information to conduct background and security checks, adjudicate immigration and naturalization benefits, and perform other functions related to administering and enforcing the immigration and naturalization laws.
(b) Individuals residing abroad. An individual who is required to provide biometric information and who is residing outside of the United States must report to a DHS-designated location to have his or her biometric information collected, whether by electronic or non-electronic means.
[76 FR 53782, Aug. 29, 2011, as amended at 81 FR 73331, Oct. 24, 2016]
§103.17 Biometric service fee.
(a) Required fees. DHS will charge a fee, as prescribed in 8 CFR 103.7(b)(1), for collecting biometric information at a DHS office, other designated collection site overseas, or a registered State or local law enforcement agency designated by a cooperative agreement with DHS to provide biometric collection services, to conduct required law enforcement checks, and to maintain this biometric information for reuse to support other benefit requests. Requests for benefits must be submitted with the biometric service fee for all individuals who are required to submit biometric information and a biometric services fee and who reside in the United States at the time of filing for the benefit.
(b) Non-payment. If a benefit request is received by DHS without the correct biometric services fee as provided in the form instructions, DHS will reject the benefit request.
[76 FR 53782, Aug. 29, 2011, as amended at 81 FR 73332, Oct. 24, 2016]
Subpart C [Reserved]
Subpart D—Availability of Records
§103.38 Genealogy Program.
(a) Purpose. The Department of Homeland Security, U.S. Citizenship and Immigration Services Genealogy Program is a fee-for-service program designed to provide genealogical and historical records and reference services to genealogists, historians, and others seeking documents maintained within the historical record systems.
(b) Scope and limitations. Sections 103.38 through 103.41 comprise the regulations of the Genealogy Program. These regulations apply only to searches for and retrieval of records from the file series described as historical records in 8 CFR 103.39. These regulations set forth the procedures by which individuals may request searches for historical records and, if responsive records are located, obtain copies of those records.
[73 FR 28030, May 15, 2008]
§103.39 Historical Records.
Historical Records are files, forms, and documents now located within the following records series:
(a) Naturalization Certificate Files (C-Files), from September 27, 1906 to April 1, 1956. Copies of records relating to all U.S. naturalizations in Federal, State, county, or municipal courts, overseas military naturalizations, replacement of old law naturalization certificates, and the issuance of Certificates of Citizenship in derivative, repatriation, and resumption cases. The majority of C-Files exist only on microfilm. Standard C-Files generally contain at least one application form (Declaration of Intention and/or Petition for Naturalization, or other application) and a duplicate certificate of naturalization or certificate of citizenship. Many files contain additional documents, including correspondence, affidavits, or other records. Only C-Files dating from 1929 onward include photographs.
(b) Microfilmed Alien Registration Forms, from August 1, 1940 to March 31, 1944. Microfilmed copies of 5.5 million Alien Registration Forms (Form AR-2) completed by all aliens age 14 and older, residing in or entering the United States between August 1, 1940 and March 31, 1944. The two-page form called for the following information: Name; name at arrival; other names used; street address; post-office address; date of birth; place of birth; citizenship; sex; marital status; race; height; weight; hair and eye color; date, place, vessel, and class of admission of last arrival in United States; date of first arrival in United States; number of years in United States; usual occupation; present occupation; name, address, and business of present employer; membership in clubs, organizations, or societies; dates and nature of military or naval service; whether citizenship papers filed, and if so date, place, and court for declaration or petition; number of relatives living in the United States; arrest record, including date, place, and disposition of each arrest; whether or not affiliated with a foreign government; signature; and fingerprint.
(c) Visa Files, from July 1, 1924 to March 31, 1944. Original arrival records of immigrants admitted for permanent residence under provisions of the Immigration Act of 1924. Visa forms contain all information normally found on a ship passenger list of the period, as well as the immigrant's places of residence for 5 years prior to emigration, names of both the immigrant's parents, and other data. In most cases, birth records or affidavits are attached to the visa, and in some cases, marriage, military, or police records may also be attached to the visa.
(d) Registry Files, from March 2, 1929 to March 31, 1944. Original records documenting the creation of immigrant arrival records for persons who entered the United States prior to July 1, 1924, and for whom no arrival record could later be found. Most files also include documents supporting the immigrant's claims regarding arrival and residence (e.g., proofs of residence, receipts, and employment records).
(e) Alien-Files numbered below 8 million (A8000000), and documents therein dated prior to May 1, 1951. Individual alien case files (A-files) became the official file for all immigration records created or consolidated after April 1, 1944. The United States issued A-numbers ranging up to approximately 6 million to aliens and immigrants who were within or entered the United States between 1940 and 1945. The United States entered the 6 million and 7 million series of A-numbers between circa 1944 and May 1, 1951. Any documents dated after May 1, 1951, though found in an A-File numbered below 8 million, will remain subject to FOIA/PA restrictions.
[73 FR 28030, May 15, 2008]
§103.40 Genealogical Research Requests.
(a) Nature of requests. Genealogy requests are requests for searches and/or copies of historical records relating to a deceased person, usually for genealogy and family history research purposes.
(b) Manner of requesting genealogical searches and records. Requests must be submitted on Form G-1041, Genealogy Index Search Request, or Form G-1041A, Genealogy Records Request, and mailed to the address listed on the form. Beginning on August 13, 2008, USCIS will accept requests electronically through its Web site at http://www.USCIS.gov. A separate request on Form G-1041 must be submitted for each individual searched, and that form will call for the name, aliases, and all alternate spellings relating to the one individual immigrant. Form G-1041A may be submitted to request one or more separate records relating to separate individuals.
(c) Information required to perform index search. As required on Form G-1041, all requests for index searches to identify records of individual immigrants must include the immigrant's full name (including variant spellings of the name and/or aliases, if any), date of birth, and place of birth. The date of birth must be at least as specific as a year, and the place of birth must be at least as specific as a country (preferably the country name as it existed at the time of the immigrant's immigration or naturalization). Additional information about the immigrant's date of arrival in the United States, residence at time of naturalization, name of spouse, and names of children may be required to ensure a successful search.
(d) Information required to retrieve records. As required on Form G-1041A, requests for copies of historical records or files must identify the record by number or other specific data used by the Genealogy Program Office to retrieve the record. C-Files must be identified by a naturalization certificate number. Forms AR-2 and A-Files numbered below 8 million must be identified by Alien Registration Number. Visa Files must be identified by the Visa File Number. Registry Files must be identified by the Registry File Number (for example, R-12345).
(e) Information required for release of records. Subjects will be presumed deceased if their birth dates are more than 100 years prior to the date of the request. In other cases, the subject is presumed to be living until the requestor establishes to the satisfaction of the Genealogy Program Office that the subject is deceased. As required on Form G-1041A, primary or secondary documentary evidence of the subject's death will be required (including but not limited to death records, published obituaries or eulogies, published death notices, church or bible records, photographs of gravestones, and/or copies of official documents relating to payment of death benefits). All documentary evidence must be attached to Form G-1041A or submitted in accordance with instructions provided on Form G-1041A.
(f) Processing of index search requests. This service is designed for customers who are unsure whether USCIS has any record of their ancestor, or who suspect a record exists but cannot identify that record by number. Each request for index search services will generate a search of the indices to determine the existence of responsive historical records. If no record is found, USCIS will notify the customer accordingly. If records are found, USCIS will provide the customer with the search results, including the type of record found and the file number or other information identifying the record. The customer can use this information to request a copy of the record(s).
(g) Processing of record copy requests. This service is designed for customers who can identify a specific record or file to be retrieved, copied, reviewed, and released. Customers may identify one or more files in a single request. However, separate fees will apply to each file requested. Upon receipt of requests identifying specific records by number or other identifying information, USCIS will retrieve, review, duplicate, and then mail the record(s) to the requester. It is possible that USCIS will find a record that contains data that is not releasable to the customer. An example would be names and birth dates of persons who might be living. The FOIA/PA only permits release of this type of information when the affected individual submits a release authorization to USCIS. Therefore, the Genealogy Program Office will contact and inform the customer of this requirement. The customer will have the opportunity to submit the release authorization. The customer can also agree to the transfer of the document request to the FOIA/PA program for treatment as a FOIA/PA request as described in 6 CFR Part 5. Document retrieval charges will apply in all cases where documents are retrieved.
[73 FR 28031, May 15, 2008]
§103.41 Genealogy request fees.
(a) Genealogy search fee. See 8 CFR 103.7(b)(1).
(b) Genealogy records fees. See 8 CFR 103.7(b)(1).
(c) Manner of submission. The application and fee must be submitted in accordance with form instructions.
[73 FR 28031, May 15, 2008, as amended at 76 FR 53782, Aug. 29, 2011]
§103.42 Rules relating to the Freedom of Information Act (FOIA) and the Privacy Act.
Immigration-related regulations relating to FOIA and the Privacy Act are located in 6 CFR part 5.
[76 FR 53782, Aug. 29, 2011]