Title 22

SECTION 42.34

42.34 Special immigrant visas - certain U.S. Government employees.

§ 42.34 Special immigrant visas - certain U.S. Government employees.

(a) General. (1) An alien is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(D) provided:

(i) The alien has performed faithful service to the United States Government abroad, or of the American Institute in Taiwan, for a total of fifteen years, or more;

(ii) The principal officer of a Foreign Service establishment (or, in the case of the American Institute in Taiwan, the Director), recommends granting special immigrant status to such alien in exceptional circumstances;

(iii) The Secretary of State, or designee, approves such recommendation and finds that it is in the national interest to grant such status.

(b) Petition requirement. An alien who seeks classification as a special immigrant under INA 203(b)(4) based on service as an employee to the U.S. government abroad or American Institute in Taiwan must file a Form DS-1884, Petition to Classify Special Immigrant under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, with the Department of State. An alien may file such a petition only after, but within one year of, notification from the Department that the Secretary of State or designee has approved a recommendation from the principal officer that special immigrant status be accorded the alien in exceptional circumstances, and has found it in the national interest to do so.

(1) Petition fees. The Secretary of State shall establish a fee for the filing of a petition to accord status under INA 203(b)(4) which shall be collected following notification that the Secretary of State, or designee, has approved the recommendation that the alien be granted status as a special immigrant under INA 101(a)(27)(D).

(2) Establishing priority date. The priority date of an alien seeking status under INA 203(b)(4) as a special immigrant described in 101(a)(27)(D) shall be the date on which the petition to accord such classification, the DS-1884, is filed. The filing date of the petition is the date on which a properly completed form and the required fee are accepted by a Foreign Service post. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of an alien classified under INA 203(b)(4), if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to the classification and priority date of the beneficiary of the petition.

(3) Delegation of authority to approve petitions. The authority to approve petitions to accord status under INA 203(b)(4) to an alien described in INA 101(a)(27)(D) is hereby delegated to the chief consular officer at the post of recommendation or, in the absence of the consular officer, to any alternate approving officer designated by the principal officer. Such authority may not be exercised until the Foreign Service post has received formal notification of the Secretary of State or designee's approval of special immigrant status for the petitioning alien.

(4) Petition validity. Except as noted in this paragraph, the validity of a petition approved for classification under INA 203(b)(4) shall be six months beyond the date of the Secretary of State's approval thereof or the availability of a visa number, whichever is later.

(5) Extension of special immigrant status and petition validity. If the principal officer of a post concludes that circumstances in a particular case are such that an extension of validity of the Secretary of State or designee's approval of the principal officer's recommendation or of the petition would be in the national interest, the principal officer shall recommend to the Secretary of State or designee that such validity be extended for not more than one additional year.

(c) Definitions - (1) Full-time service. An alien must have been employed for a total of at least 15 full-time years, or the equivalent thereof, in the service of the U.S. government abroad. The number of hours per week that qualify an employee as full-time is dependent on local law and prevailing practice in the country where the alien is or was employed, as reflected in the employment documentation submitted with the application for special immigrant status. An alien may qualify as a special immigrant under INA 101(a)(27)(D) on the basis of employment abroad with one or more than one agency of the U.S. government provided the total amount of full-time service with the U.S. government is 15 years or more, or the equivalent thereof.

(2) Faithful service. An alien must have performed faithfully in the position held. The principal officer has the primary responsibility for determining whether the alien's service meets this requirement. A record of disciplinary actions that have been taken against the alien does not automatically disqualify the alien. The principal officer must assess the disciplinary action in light of the extent and gravity of the misconduct and when it occurred and determine whether the record as a whole, notwithstanding disciplinary actions, is one of faithful service.

(3) Continuity. The alien's period of service need not have been continuous.

(4) Abroad. The service must have occurred anywhere outside the United States, as the term “United States” is defined in INA 101(a)(38).

(5) Employment at the American Institute in Taiwan. INA 101(a)(27)(D) permits both present and former employees of the American Institute in Taiwan to apply for special immigrant status. An alien's service before and after the founding of the American Institute in Taiwan is counted toward the minimum 15 years of service requirement.

(6) Honorably retired. Separations within the meaning of “honorably retired” include, for example, those resulting from mandatory or voluntary retirement, reduction-in-force, or resignation for personal reasons. Separations not within the meaning of “honorably retired” would include a termination for cause or an involuntary termination or resignation in lieu of a termination for cause.

(7) Definition of exceptional circumstances. The principal officer must determine that an alien demonstrates at least one form of “exceptional circumstances” to support an application for special immigrant status.

(i) Prima facie indicators of exceptional circumstances. In the following situations an alien's service with the U.S. government generally will be deemed to have met exceptional circumstances.

(A) Diplomatic relations between the alien's country of nationality and the United States have been severed;

(B) Diplomatic relations between the country in which the alien was employed and the United States have been severed;

(C) The country in which the alien was employed and the United States have strained relations and the employee may be subjected to retribution by the local, State, Federal, or other official government body merely because of association with the U.S. government, or the alien may be pressured to divulge information contrary to U.S. national interests; or

(D) The alien was hired as an employee at the Consulate General at Hong Kong on or before July 1, 1999.

(ii) Strong indicators of exceptional circumstances. (A) It is believed that continued service to the U.S. government might endanger the life of the alien;

(B) The alien has, fulfilled responsibilities or given service in a manner that approaches the heroic;

(D) The alien has disclosed waste, fraud or abuse, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation within the Department or other U.S. government agency, if such disclosure results in significant action by the Department or other U.S. government agency against an offending party, such as termination or severance of a contractual relationship, or criminal charges against any person or entity;

(E) The employee has served the U.S. government for a period of twenty years or more.

(8) Immediate intent to immigrate. (i) The recommendation of the principal officer must certify that the employee being recommended is prepared to pursue an immigrant visa application within one year of the Department's notification to the post of approval of special immigrant status and, if the employee is not honorably retired, that the employee intends permanent separation from U.S. government employment abroad no later than the date of departure for the United States following issuance of an immigrant visa.

(ii) Employees of Hong Kong Consulate General hired on or before July 1, 1999, are not required to establish immediate intent to immigrate. Employees of the Hong Kong Consulate General who received or were approved for special immigrant status before July 1, 1999, also may continue employment with the U.S. government.

[85 FR 36326, June 16, 2020]