shall be required to establish that he is a lawful permanent resident alien by the submission of evidence such as his passport bearing a Service endorsement reflecting a lawful admission for permanent residence, his Form I-151 Alien Registration Receipt Card, or his immigrant identification card. (2) 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 hereinafter provided. If the decision will be adverse to the applicant or petitioner on the basis of derogatory evidence considered by the Service and of which the applicant or petitioner is unaware, he shall be advised thereof and offered an opportunity to rebut it and present evidence in his behalf before the decision is rendered, except that classified evidence shall not be made available to him. Any explanation, rebuttal, or evidence presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding. A determination of statutory ineligibility shall not be valid unless based on evidence contained in the record of proceeding. In exercising discretionary power when considering an application or petition, the district director or the officer in charge, in any case in which he is authorized to make the decision, may consider and base his decision upon evidence not contained in the record of proceeding and not made available for inspection by the applicant or petitioner, provided the regional commissioner, in his discretion, has concluded that such evidence is classified under Executive Order No. 10501 of November 5, 1953 (18 FR. 7049, Nov. 10, 1953), as amended, by Executive Order Nos. 10816 of May 7, 1959 (24 F.R. 3777, May 12, 1959), 10901 of January 9, 1961 (26 F.R. 217, Jan. 12, 1961), 10964 of September 20, 1961 (26 F.R. 8932, Sept. 22, 1961), and 10985 of January 12, 1962 (27 F.R. 439, Jan. 16, 1962), and that its disclosure would be prejudicial to the national security and safety. [29 F.R. 11956, Aug. 21, 1964, as amended at 30 F.R. 7516, June 9, 1965; 30 F.R. 14772, Nov. 30, 1965; 31 F.R. 535, Jan. 15, 1966; 32 F.R. 9622, July 4, 1967; 33 F.R. 7751, May 28, 1968; 33 F.R. 11644, Aug. 16, 1968] § 103.3 Denials, appeals, and precedent decisions. (a) Denials and appeals. Whenever a formal application or petition filed un der $103.2 is denied, the applicant shall be given written notice setting forth the specific reasons for such denial. If the notification is made on Form I-292, the signed duplicate thereof constitutes the order of denial. When the applicant is entitled to appeal to another Service officer, the notice shall advise him that he may appeal from the decision, and that such appeal may be taken within 15 days after the mailing of the notification of decision, accompanied by a supporting brief if desired and a fee of $25, by filing notice of appeal, Form I-290B, which shall be furnished with the written notice. For good cause shown, the time within which the brief may be submitted may be extended. The party taking the appeal may, prior to appellate decision, file a written withdrawal of such appeal. An appeal, cross-appeal, answers thereto and accompanying brief, if any, shall become part of the record of proceeding and, if filed by an officer of the Service, a copy shall be served on the party affected. Notwith (b) Dismissal of appeals. standing the provisions of paragraph (c) of this section, the officer to whom an appeal is taken may deny oral argument and dismiss any appeal when (1) the party concerned fails to specify the reasons for his appeal, or (2) the appeal is patently frivolous. (c) Oral argument. If an appeal is taken, request for oral argument, if desired, shall be included in the notice of appeal. The officer to whom the appeal is taken shall have the authority to designate the time, date, and place where oral argument may be heard. Oral argument may be heard by the officer to whom the appeal is taken or by an officer designated by him. (d) Decisions and precedent decisions. The decision of the Service officer considering the appeal shall be in writing and a copy thereof shall be served upon the applicant, petitioner, or other party affected, or his attorney or representative of record. Those decisions of the Service, the Board of Immigration Appeals (§ 3.1(g) of this chapter), and the Attorney General which are of precedential value are published and may be purchased from the United States Government Printing Office, Washington, D.C., 20402, or examined at the principal field offices of the Service. [31 F.R. 3062, Feb. 24, 1966, as amended at 32 F.R. 9622, July 4, 1967; 34 F.R. 13921, Aug. 30, 1969] The Commissioner, regional commissioners, associate commissioners, deputy associate commissioners, assistant commissioners, and district directors outside the United States, within their respective areas of responsibility, may direct that any case or classes of cases be certified for decision. District directors in the United States and officers in charge in Districts 33, 34, and 37 may certify their decisions to the appellate authority designated in this chapter when the case involves an unusually complex or novel question of law or fact. The alien or other party affected shall be given notice on Form I-290C of such certification and of his right to submit a brief within 10 days from receipt of the notice. Cases within the appellate jurisdiction of the Service shall be certified only after an initial decision has been made. In cases within § 3.1(b) of this chapter, the decision of the officer to whom certified, whether made initially or upon review, shall constitute the base decision of the Service from which an appeal may be taken to the Board in accordance with the applicable parts of this chapter. The decision of the Service officer to whom the case has been certified shall be in writing and a copy thereof shall be served upon the applicant, petitioner, or other party affected, or his attorney or representative of record. [29 F.R. 12583, Sept. 4, 1964, as amended at 32 F.R. 15469, Nov. 7, 1967; 33 F.R. 15200, Oct. 11, 1968; 33 F.R. 17136, Nov. 19, 1968] § 103.5 Reopening or reconsideration. Except as otherwise provided in Part 242 of this chapter, a proceeding authorized under this chapter may be reopened or the decision made therein reconsidered for proper cause upon motion made by the party affected and granted by the officer who has jurisdiction over the proceeding or who made the decision. When the alien is the moving party, a motion to reopen or a motion to reconsider shall be filed in duplicate, accompanied by a supporting brief, if any, and the appropriate fee specified by and remitted in accordance with the provisions of § 103.7, with the district director in whose district the proceeding was conducted for transmittal to the officer having jurisdiction. When an officer of the Service is the moving party, a copy of the motion shall be served on the alien or other party in interest and the motion, together with proof of service, shall be filed directly with the officer having jurisdiction. The party opposing the motion shall have 10 days from the date of service thereof within which he may submit a brief, which period may be extended. If the officer who originally decided the case is unavailable, the motion may be referred to another officer. A motion to reopen shall state the new facts to be proved at the reopened proceeding and shall be supported by affidavits or other evidentiary material. A motion to reconsider shall state the reasons for reconsideration and shall be supported by such precedent decisions as are pertinent. Motions to reopen or reconsider shall state whether the validity of the order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. Rulings upon motions to reopen or motions to reconsider shall be by written decision. The filing of a motion to reopen or a motion to reconsider or of a subsequent application after notice of denial shall not, unless the Service directs otherwise, serve to stay the execution of any decision made in the case or to extend a previously set departure date. [27 F.R. 7562, Aug. 1, 1962, as amended at 30 F.R. 12772, Oct. 7, 1965; 32 F.R. 271, Jan. 11, 1967] § 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, 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. 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 approved attorney in fact, shall be forwarded to the regional commissioner for approval. (2) Bond riders. Bond riders shall be prepared on Form I-351 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 and forwarded with Form I-352 to the regional commissioner for approval. a (b) Acceptable sureties. Either 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 canceled when the alien dies, departs permanently from the United States, or is naturalized, provided he did not become a public charge prior to his demise, departure, or naturalization. The district director may cancel a public charge bond at any time if he finds that the immigrant is not likely to become a public charge. A bond may also be canceled in order to allow substitution of another bond. Request for cancellation of a public charge bond shall be made on Form I-356. (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 subparagraph, 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) Blanket bonds 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: Aliens 1 to 4. 5 to 9. 10 to 24 25 to 49. 50 to 74 75 to 99. 100 to 124__. 125 to 149. 150 to 199 200 or more----. $500 each. $2,500 total bond. $3,500 total bond. $5,000 total bond. $6,000 total bond. $7,000 total bond. $8,000 total bond. $9,000 total bond. (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 British West Indies, the British Virgin Islands, or from Canada: Less than 500 workers__500 to 1,000 workers_. 1,000 or more workers. $15 each. $10 each. $5 each. A bond shall not be posted for less than $500 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 $75 as liquidated damages for each alien involved. bond is (e) Breach of bond. A 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 jurisdiction over the place where any immigration bond is retained shall determine whether a bond shall be declared breached or cancelled, and shall notify the obligors in writing on Form I-323 or Form I-391 of his decision, and, if declared breached, the reasons therefor, and of his right to appeal in accordance with the provisions of this part. [31 F.R. 11713, Sept. 7, 1966, as amended at 32 F.R. 9622, July 4, 1967; 33 F.R. 5255, Apr. 2, 1968; 33 F.R. 10504, July 24, 1968; 34 F.R. 1008, Jan. 23, 1969; 34 F.R. 14760, Sept. 25, 1969] § 103.7 Fees. Fees prescribed (a) Remittances. within the framework of 31 U.S.C. 483a shall be submitted with any formal application or petition prescribed in this chapter and shall be in the amount prescribed by law or regulation. When any discretionary relief in exclusion or deportation proceedings is granted absent an application and fee therefor, the district director having jurisdiction over the place where the original proceeding was conducted shall require the filing of the application and the payment of the fee. Every remittance shall be accepted subject to collection. A receipt issued by a Service officer for any such remittance shall not be binding if the remittance is found uncollectible. Fees in the form of postage stamps shall not be accepted. Remittances shall be made payable to the "Immigration and Naturalization Service, Department of Justice" except that in case of applicants residing in the Virgin Islands of the United States, the remittances shall be made payable to the "Commissioner of Finance of the Virgin Islands," and, in the case of applicants residing in Guam, the remittances shall be made payable to the "Treasurer, Guam." (b) Amounts of fees-(1) Nonstatutory fees. The following nonstatutory fees and charges are prescribed: For filing application for Alien Registration Receipt Card (Form I-151), in lieu of one lost, mutilated, or destroyed, or in a changed name-- $10.00 For filing application for passport or visa waiver prior to or at the time application is made for temporary admission to the United States--- 110.00 For filing application for visa waiver when application is made for admission as a returning resident--- 110.00 For filing application for passport waiver prior to or at the time application is made for permanent admission For filing appeal from or motion to reopen or reconsider, any decision under the immigration laws, except an exclusion or deportation proceeding. (The minimum fee of $25 shall be charged whenever an appeal or motion is filed by or on behalf of two or more aliens and all such aliens are covered by one decision.) For filing petition to classify nonimmigrant as temporary worker or trainee under section 214 (c) of the Act For filing petition to classify status of alien relative for issuance of immigrant visa under section 204(a) of the Act_ For filing application for issuance of reentry permit__ For filing application for extension of reentry permit--- For filing application for extension of For filing petition to classify prefer- 1 Plus communication costs. 1 10.00 25.00 25.00 10.00 10.00 10.00 10.00 25.00 25.00 For filing application for school approval, except in the case of a school or school system owned or operated as a public educational institution or system by the United States or a State or political subdivision thereof For filing application for discretionary relief under section 212(c) of the Act__ For filing application for discretion ary relief under section 212(d) (3) of the Act, except in an emergency case, or the approval of the application is in the interest of the U.S. Government For filing application for waiver of the foreign-residence requirement under section 212(e) of the Act---For filing application for waiver of ground of excludability under section 212 (h) or (i) of the Act. (Only a single application and fee shall be required when the alien is applying simultaneously for a waiver under both those sections.) For filing application for adjustment of status to that of a permanent resident under section 245 of the Act For filing application for adjustment of status to that of a permanent resident under section 13 of the Act of September 11, 1957---For filing application for creation of record of admission for permanent residence under section 249 of the Act For filing application for change of nonimmigrant classification under section 248 of the Act_. For filing application for suspension of deportation under section 244 of the Act__ For filing application for transfer of petition for naturalization under section 335 (i) of the Act, except when transfer is of a petition for naturalization filed under the Act of October 24, 1968, Public Law 90633 For filing application for a certificate of naturalization or declaration of intention in lieu of a certificate or declaration alleged to have been lost, mutilated, or destroyed; or for a certificate of citizenship in a changed name under section 343 (b) or (d) of the Act.. For filing application for a certificate of citizenship under section 309 (c) or section 341 of the Act_____ 25.00 25.00 25.00 25.00 $25.00 25.00 25.00 25.00 25.00 25.00 * 50.00 5.00 5.00 10. 00 For filing application for a special certificate of naturalization to obtain recognition as a citizen of the United States by a foreign state under section 343 (c) of the Act___ For filing application for a certificate of naturalization or repatriation under section 343 (a) of the Immigration and Nationality Act or the 12th subdivision of section 4 of the Act of June 29, 1906_. For filing application for section 316 (b) or 317 of the Act benefits_____ For special statistical tabulation a charge will be made to cover the cost of the work involved__. For set of monthly, semiannual, or annual tables entitled "Passenger Travel Reports via Sea and Air". For annual subscription for "Passenger Travel Reports via Sea and Air" 5.00 5.00 10. 00 $5.00 75.00 Except as otherwise provided in § 3.3(b) of this chapter, any of the foregoing fees relating to applications, petitions, appeals, and motions may be waived when an alien or other party affected is unable to pay the prescribed fee if he files with the relating application, petition, appeal, or motion his affidavit stating the nature thereof, his belief that he is entitled to redress, and his inability to pay the required fee, and he requests permission to prosecute the application, petition, appeal, or motion without prepayment of such fee. When such an affidavit is filed with the officer of the Service having jurisdiction to render a decision on the application, petition, appeal, or motion, such officer may, in his discretion, authorize the prosecution of the relating application, petition, appeal, or motion without prepayment of fee. (2) 5 U.S.C. 552 fees. For the services expended in locating or making available records or copies thereof under 5 U.S.C. 552, the following user charges are deemed fair and equitable and shall be assessed against the person who requests that records be made available: Each Form N-585 or Form I-550 shall |