Code of Federal Regulations: Containing a Codification of Documents of ...

(Sec. 103; 66 Stat. 173 (8 U.S.C. 1103)). [39 FR 41832, Dec. 3, 1974]

PART 204-PETITION TO CLASSIFY ALIEN AS IMMEDIATE RELATIVE OF A UNITED STATES CITIZEN OR AS A PREFERENCE IMMIGRANT

Sec.

204.1 Petition.

§ 108.2 Decision.

The applicant shall appear in person before an immigration officer prior to adjudication of the application, except that the personal appearance of any children included in the application may be waived by the district director. The district director shall request the views of the Department of State before making his decision unless in his opinion the application is clearly meritorious or clearly lacking in substance. The district director may approve or deny the application in the exercise of discretion. The district director's decision shall be in writing, and no appeal shall lie therefrom. If an application is denied for the reason that that it is clearly lacking in substance, notification shall be given to the Department of State, with opportunity to supply a statement containing matter favorable to the application, and departure shall not be enforced until 30 days following the date of notification unless a reply has been received from the Department of State prior to that time. A case shall be certified to the regional commissioner for final decision if the Department of State has made a favorable statement, but, notwithstanding, the district director has chosen to deny the application. If any decision will be based in whole or in part upon a statement furnished by the Department of State, the statement shall be made a part of the record of proceeding, and the applicant shall have an opportunity for inspection, explanation, and rebuttal thereof as prescribed in § 103.2(b)(2) of this chapter. A denial under this part shall not preclude the alien, in a subsequent expulsion hearing, from applying for the benefits of section 243(h) of the Act and of Articles 32 and 33 of the Convention Relating to the Status of Refugees.

(Sec. 103; 66 Stat. 173 (8 U.S.C. 1103))

[39 FR 41832, Dec. 3, 1974, as amended at 40 FR 3408, Jan. 22, 1975]

(a) Relative. A petition to accord preference classification under section 203(a) (1), (2), (4), or (5) of the Act or classification as an immediate relative under section 201(b) of the Act, other than a child as defined in section 101(b)(1)(F) of the Act, shall be filed on a separate Form I-130 for each beneficiary and shall be accompanied by the fee required under § 103.7(b) of this chapter. The petition shall be filed in the office of the Service having jurisdiction over the place where the petitioner is residing in the United States. When the petitioner resides outside of the United States, the petition shall be filed with the foreign office of the Service designated to act on the petition which can be ascertained by consulting the nearest American consul. American consular officers assigned to visa-issuing posts abroad, except those is Austria, Germany, Greece, Italy, Japan, the Philippines, Hong Kong, and Mexico are also authorized to approve any petition on Form I-130 when the petitioner and beneficiary are physically present in the area over which the consular officers have jurisdiction. While such consular officers are authorized to approve such petitions, they shall refer any petition which is not clearly approvable to the appropriate Service office outside the United States for decision. The petitioner shall be notified of the decision and, if the petition is

(b) Accounting records, at a minimum, shall include the identification of the particular record disclosed, the name and address of the person or agency to which disclosed, and the date of the disclosure. Accounting records shall be maintained for at least 5 years, or until the record is destroyed or transferred to the Archives, whichever is later.

(c) Accounting is not required to be kept for disclosures made within the Department of Justice or disclosures made pursuant to the Freedom of Information Act.

[40 FR 44481, Sept. 26, 1975, as amended at 42 FR 33025, June 29, 1977]

§ 103.31 Notices of subpoenas and emergency disclosures.

(a) Subpoenas. When records concerning an individual are subpoenaed by a Grand Jury, court, or a quasijudicial agency, the official served with the subpoena shall be responsible for assuring that notice of its issuance is provided to the individual. Notice shall be provided within 10 days of the service of the subpoena or, in the case of a Grand Jury subpoena, within 10 days of its becoming a matter of public record. Notice shall be mailed to the last known address of the individual and shall contain the following information: the date the subpoena is returnable, the court in which it is returnable, the name and number of the case or proceeding, and the nature of the information sought. Notice of the issuance of subpoenas is not required if the system of records has been exempted from the notice requirement pursuant to 5 U.S.C. 552a(j), by a Notice of Exemption published in the FEDERAL REGISTER.

(b) Emergency disclosures. If information concerning an individual has been disclosed to any person under compelling circumstances affecting health or safety, the individual shall be notified at his last known address within 10 working days of the disclosure. Notification shall include the following information: the nature of the information disclosed, the person or agency to whom it was disclosed, the date of the disclosure, and the compelling circumstances justifying the disclosure. Notification shall be given by

the officer who made or authorized the disclosure.

§ 103.32 Information forms.

(a) Review of forms. The Service shall be responsible for the review of forms it uses to collect information from and about individuals.

(b) Scope of review. The Service Forms Control Unit shall review each form to assure that it complies with the requirements of 28 CFR 16.52.

§ 103.33 Contracting record systems.

Any contract by the Service for the operation of a record system shall be in compliance with 28 CFR 16.53.

§ 103.34 Security of records systems.

The security of records systems shall be in accordance with 28 CFR 16.54.

§ 103.35 Use and collection of Social Security numbers.

The use and collection of Social Security numbers shall be in accordance with 28 CFR 16.55.

§ 103.36 Employee standards of conduct with regard to privacy.

Service employee standards of conduct with regard to privacy shall be in compliance with 28 CFR 16.56.

PART 108-ASYLUM

Sec. 108.1 Application. 108.2 Decision.

§ 108.1 Application.

An application for asylum by an alien who is seeking admission to the United States at a land border port or preclearance station shall be referred to the nearest American consul. An application for asylum by any other alien who is within the United States or who is applying for admission to the United States at an airport or seaport of entry shall be submitted on Form I-589 to the district director having jurisdiction over his place of residence in the United States or over the port of entry. The applicant's accompanying spouse and unmarried children under the age of 18 years may be included in the application.

(Sec. 103; 66 Stat. 173 (8 U.S.C. 1103)). [39 FR 41832, Dec. 3, 1974]

PART 204-PETITION TO CLASSIFY ALIEN AS IMMEDIATE RELATIVE OF A UNITED STATES CITIZEN OR AS A PREFERENCE IMMIGRANT

Sec.

204.1 Petition.

§ 108.2 Decision.

(Sec. 103; 66 Stat. 173 (8 U.S.C. 1103))

[39 FR 41832, Dec. 3, 1974, as amended at 40 FR 3408, Jan. 22, 1975]

denied, of the reasons therefor and of his right to appeal to the Board within 15 days after mailing of the notification of the decision in accordance with the provisions of Part 3 of this chapter. Without the approval of a separate petition in his behalf, an alien spouse or a child defined in section 101(b)(1) (A), (B), (C), (D), or (E) of the Act, may be accorded the same preference classification under section 203(a) as his spouse or parent whom he is accompanying or following to join, if the immediate issuance of a visa or conditional entry is not otherwise available under the provisions of section 203(a)(1) through (8) of the Act. However, the alien spouse or child of an alien parent who has been classified as an immediate relative is not within the purview of section 203(a)(9) of the Act and may not be accorded derivative immediate relative status. No alien may be classified as an immediate relative unless he himself is entitled to such status and is the beneficiary of an approved visa petition according him such classification.

(b) Orphan. A petition in behalf of a child defined in section 101(b)(1)(F) of the Act shall be filed on Form I-600 by the United States citizen with the office of the Service having jurisdiction over the place where the petitioner is residing, shall identify the child, and shall be accompanied by the fee required under § 103.7(b) of this chapter. If the petitioner is married, the Form I-600 shall be signed also by the petitioner's spouse. If unmarried, the petitioner must be at least twenty-five years of age at the time of the adoption and when the petition is filed. If the petitioner resides outside of the United States, the petition shall be filed with the foreign office of the Service designated to act on the petition, which can be ascertained by consulting an American consul. However, since no Service office in Canada has been so designated, a petitioner residing in that country shall file the petition with the office of the Service having jurisdiction over the place of the child's intended residence in the United States. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and the right to appeal in accor

dance with the provisions of Part 103 of this chapter. If the petitioner (or spouse, if married), intends to proceed abroad to locate an orphan for adop-¡ tion, a request in writing may be sub- j mitted to the district director in whose jurisdiction the petitioner resides to initiate preliminary processing prior to filing a petition.

(c) Petition under section 203 (a)(3) or (6)—(1) General. A petition to classify the status of an alien under section 203(a) (3) or (6) of the Act shall be filed on Form I-140. For each beneficiary a separate Form I-140 must be submitted, accompanied by the fee required under § 103.7(b) of this chapter. The petition shall be made under oath administered by any individual having authority to administer oaths, if executed in the United States, but, if executed outside the United States, administered by a consular officer or an immigration officer. Before it may be accepted and considered properly filed, the petition must be accompanied by Labor Department forms entitled "Statement of Qualifications of Alien" and "Job Offer for Alien Employment" to which the certification under section 212(a)(14) of the Act has been affixed by the Secretary of Labor or his designated representative, except that such certification may be omitted if the beneficiary is qualified for and will be engaged in an occupation currently listed in the Department of Labor's Schedule A (20 CFR Part 656). The petition shall be filed in the office of the Service having jurisdiction over the place of intended employment.

(2) Filing date. In the case of a third or sixth preference petition (except for an occupation listed in Schedule A), the filing date of the petition within the meaning of section 203(c) of the Act shall be the date the request for certification was accepted for processing by any office within the employment service system of the Department of Labor. In the case of a third or sixth preference petition for an occupation listed in Schedule A the filing date of the petition shall be the date it was properly filed with the appropriate Service office.

(3) Sixth-preference petition for member of the professions or person

having exceptional ability in the sciences or arts. Nothing contained in this Part shall preclude an employer who desires and intends to employ an alien who is a member of the professions or a person having exceptional ability in the sciences or the arts from filing a petition for a sixth-preference classification; however, any such petition shall be subject to the requirements of this Part governing sixthpreference petitions.

(4) Interview and decision. Prior to decision by the district director, the beneficiary and the petitioner may be required as a matter of discretion to appear in person before an immigration or consular officer and be interrogated under oath concerning the allegations in the petition. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter. However, no appeal shall lie from a decision denying a petition for lack of a certification by the Secretary of Labor pursuant to section 212(a)(14) of the Act.

[41 FR 11171, Mar. 17, 1976, as amended at 41 FR 55847, Dec. 23, 1976]

§ 204.2 Documents.

(a) Evidence of U.S. citizenship—(1) Birth in the United States. A Petition filed under § 204.1 (a) or (b) by a U.S. citizen whose citizenship is based on birth in the United States must be accompanied by his birth certificate; or, if his birth certificate is unobtainable, a copy of his baptismal certificate under seal of the church, showing his place of birth and a date of baptism occurring within 2 months after birth; or if his birth or baptismal certificate cannot be obtained, affidavits of two U.S. citizens who have personal knowledge of his birth in the United States. A native-born citizen of the United States who files a petition while physically outside the United States may establish his birth by presenting his valid unexpired U.S. passport containing the date and place of his birth in the United States. A statement executed by a consular officer, certifying the petitioner to be a U.S. citizen and the bearer of a valid U.S. passport showing him to be a native-born citizen, may be

accepted in lieu of the passport. When a native-born member of the armed forces of the United States serving outside the United States submits a petition without documentary proof of his birth in the United States, a statement from the appropriate authority of the armed forces to the effect that the personnel records of the armed forces show the petitioner was born in the United States on a certain date may be accepted as proof of his birth in the United States if the approving officer finds that to require documentary proof of the petitioner's birth in the United States would cause the petitioner unusual delay or hardship.

(2) Birth outside the United States. A petition filed under § 204.1 (a) or (b) by a United States citizen born abroad who became a citizen through the naturalization or citizenship of a parent or husband, and who has not been issued a certificate of citizenship in his or her own name must be accompanied by evidence of the citizenship and marriage of such parent or husband, as well as the legal termination of any prior marriages. In addition, if the petitioner claims citizenship through a parent, he must submit his birth certificate and a separate statement showing the date, port, and means of all his arrivals and departures into and out of the United States. If the petitioner is a naturalized citizen of the United States whose naturalization occurred within 90 days immediately preceding the filing of the petition, or if it occurred prior to September 27, 1906, the naturalization certificate must accompany the petition.

(b) Evidence of lawful admission for permanent residence. The status of a petitioner who claims that he is a lawful permanent resident alien of the United States will be verified from official records of the Service. In the absence of such a record, the petitioner 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.

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