§ 103.8

Definitions pertaining to availability of information.

As used in this part the following definitions shall apply:

(a) The term "decision” means a final written determination in a proceeding under the Act accompanied by a statement of reasons. Orders made by check marks, stamps, or brief endorsements which are not supported by a reasoned explanation, or those incorporating preprinted language on Service forms are not "decisions".

(b) The term "records" includes records of proceedings, documents, reports, and other papers maintained by the Service.

(c) The term "record of proceeding" is the official history of any hearing, examination, or proceeding before the Service, and in addition to the application, petition, order to show cause, or other initiating document, includes the transcript of hearing or interview, exhibits, and any other evidence relied upon in the adjudication; papers filed in connection with the proceeding, including motions and briefs; the Service officer's determination; notice of appeal or certification; the Board or other appellate determination; motions to reconsider or reopen; and documents submitted in support of appeals, certifications, or motions.

[32 F.R. 9623, July 4, 1967]

§ 103.9 Availability of decisions and interpretive material.

(a) Precedent decisions. There may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402, bound volumes of designated precedent decisions entitled "Administrative Decisions Under Immigration and Nationality Laws of the United States," each containing a cumulative index. Prior to publication in volume form current precedent decisions, known as interim decisions, are obtainable from the Superintendent of Documents on a single copy or yearly subscription basis. Bound volumes and current precedent decisions may be read at principal Service offices.

(b) Unpublished decisions. Each district director in the United States will maintain copies of unpublished Service and Board decisions relating to proceedings in which the initial decision was made in his district. Each regional commissioner will maintain copies of un

published decisions made by him. The Central Office will maintain copies on a national basis of unpublished Service decisions.

(c) Deletion of identifying details. To the extent required to prevent a clearly unwarranted invasion of personal privacy, the officer who makes the decision shall provide for deletions of names and such other identifying data as he deems appropriate from copies of decisions which are made available.

(d) Statements of policy, interpretations, manuals, instructions to staff. Statements of policy, interpretations, and those manuals and instructions to staff (or portions thereof), affecting the public, will be made available at district offices in the United States and at the Central Office with an accompanying index of any material which is issued on or after July 4, 1967.

(e) Public reading rooms. The Central Office and each district office in the United States will provide a reading room or reading area where the material described in this section will be made available to the public. Additional materials will be made available in the public reading rooms, including the immigration and nationality laws, Title 8 of the United States Code Annotated, Title 8 of the Code of Federal Regulations, and a complete set of the forms listed in Parts 299 and 499 of this chapter. Fees will not be charged for providing access to any of these materials, but fees in accordance with § 103.7(b) will be charged for furnishing copies. [32 F.R. 9623, July 4, 1967] § 103.10

Records.

(a) Availability of records generally. A request for a record will be submitted in accordance with paragraphs (c) and (d) of this section on Form N-585. The form concerning such a request will be forwarded by the office receiving it to the Commissioner for transmission to the Deputy Attorney General pursuant to 28 CFR 16.6(b). When the requested record is identified and located a copy thereof will be forwarded with the form and with the recommendation of the receiving office. When the requested record cannot be identified or located, a brief summary of the action taken to identify and locate it and a copy of the application form shall be submitted in the same manner to the Deputy Attorney General.

(b) Requests which may be approved by Service officers. Notwithstanding the provisions of paragraph (a) of this section, the following types of requests for information and records may be granted by the head of the office to which the request is submitted and without submission to the Deputy Attorney General:

(1) Requests for information and records which officers and employees of the Service prior to the enactment of 5 U.S.C. 552 customarily furnished to the public in the regular performance of their duties;

(2) Requests for records of proceedings in deportation hearings, unless members of the public have been excluded from the hearing by direction of the special inquiry officer pursuant to § 242.16 (a) of this chapter;

(3) Requests for records of proceedings in naturalization examinations and hearings;

(4) Requests for records of proceedings in any other proceeding before the Service which was open to the public;

(5) Requests for records of proceedings in administrative fine cases. When in the opinion of the receiving office such a request for a record should not be granted the request will be processed in conformity with paragraph (a) of this section.

(c) Places and manner of obtaining records (1) Places. Records shall be made available in the Central Office, each regional office, any district office, and the following offices: Agana, Guam; Albany, N.Y.; Cincinnati, Ohio; Dallas, Tex.; Hammond, Ind.; Houston, Tex.; Memphis, Tenn.; Milwaukee, Wis.; Norfolk, Va.; Pittsburgh, Pa.; Providence, R.I.; Reno, Nev.; St. Louis, Mo.; Salt Lake City, Utah; San Diego, Calif.; Spokane, Wash.; additionally, in particular cases, a district director may designate any other Service office. Requests for Board records described in 28 CFR 16.6 shall be submitted to the Associate Commissioner, Management.

(2) Manner of requesting records; fees. Requests for records may be made in person or by mail. Each request made under this section pertaining to the availability of a record shall include or consist of Form N-585, or Form I-550 when submitted in accordance with a request by an American consul, shall be accompanied by a fee of $3 as provided in § 103.7(b), and shall describe the record with sufficient specificity with re

spect to names, dates, subject matter, and location to permit it to be identified and located. A fee shall not be required when the request is made by Federal or State Government agencies, including political subdivisions and municipalities. A single fee shall be charged for a request for a search relating to one individual even though information concerning him is in more than one record and in more than one place.

(3) Temporary withholding of records. Records relating to matters pending before the Service may be withheld when in the opinion of the district director compliance with the request will disrupt the administrative process. Nothing contained herein is intended to impair the right of a party to a proceeding, or his attorney or representative, to examine the record of proceeding and obtain a copy thereof, as provided in § 292.4(b) of this chapter.

(d) Authority to release information and certify records; fees for copies and certification. (1) Subject to the authority reserved to the Attorney General under 28 CFR 16.6 and 16.7 and subject to such restrictions as may be imposed by law or this chapter, authority coextensive with that of the Commissioner is hereby delegated to the officers listed below to furnish information from Service records to any person entitled thereto and to certify copies thereof;

(i) The Associate Commissioner, Management, as to files, documents, and records in the custody of the Central Office.

(ii) A regional commissioner or district director as to files, documents, and records in the custody of his office.

(2) The Chief, Records Administration and Information Branch, Central Office, may certify as to the nonexistence of an official record in the records of the Service.

[32 F.R. 9623, July 4, 1967; 32 FR. 10433, July 15, 1967, as amended at 32 F.R. 11628, Aug. 11, 1967]

(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 a fee of $10. 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 in 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 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. Notwithstanding the fact that the beneficiary may be a native of an independent foreign country of the Western Hemisphere or of the Canal Zone, a petition to accord the beneficiary classification as an immediate relative under section 201 (b) of the Immigration and Nationality Act (including an immediate relative referred to in section 21(e) of the Act of October 3, 1965) shall be filed when the beneficiary is the parent of a United States citizen who is at least 21 years of age, or is the spouse or child of a United States citizen.

(b) Orphan. A petition in behalf of a child defined in section 101(b) (1) (F) of the Act shall be filed by the U.S. citizen spouse in the office of the Service having jurisdiction over the place where the petitioner is residing on Form I-600, shall identify the child, and shall be accompanied by a fee of $25. The petition shall also be accompanied by Form G-325 (Biographic Information) executed by the petitioner and by a separate Form G-325 executed by the petitioner's spouse, which shall be considered as part of the petition. 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. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and of the right to appeal in accordance with the provisions of Part 103 of this chapter. If the petitioner or spouse intends to proceed abroad to locate an orphan for adoption, a request in writing may be submitted to the district director in whose jurisdiction the petitioner resides to initiate preliminary processing prior to filing a petition.

(c) Member of the professions or an alien of exceptional ability in the sciences or arts. A petition to classify the status of an alien under section 203(a)(3) of the Act shall be filed on Form I-140 by such alien or by any person on his behalf. A separate Form I-140

executed under oath or affirmation and accompanied by Form MA 7-50A and a fee of $25 must be submitted for each beneficiary before the petition may be accepted by the Service and considered properly filed. However, if the alien is a member of a profession for which the Secretary of Labor requires a job offer, Form I-140 must be accompanied by Forms MA 7-50 A and B to which the certification under section 212(a) (14) of the Act has been affixed by the Secretary of Labor or his designated representative, before the petition may be accepted by the Service and considered properly filed. The petition shall be filed in the office of the Service having jurisdiction over the place in the United States where the alien intends to reside. An alien abroad who desires to submit a petition in his own behalf must execute the oath or affirmation on the petition before a Service or consular officer abroad. That officer will furnish the address of the Service office in the United States to which the alien should send the petition. Determinations concerning labor certifications will be made in accordance with paragraph (d) (2) of this section. The beneficiary and the petitioner may be required, as a matter of discretion, to appear in person before an immigration or consular officer prior to the adjudication of the petition 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 the petition for lack of a certification by the Secretary of Labor pursuant to section 212 (a) (14) of the Act.

(d) Petitions under section 203 (a) (6) of the Act (1) Filing petition. A person, firm, or organization desiring and intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203 (a) (6) of the Act shall file a petition on Form I-140 in the office of the Service having jurisdiction over the place of intended employment. A separate form must be submitted for each beneficiary, executed under oath or affirmation, accompanied by a fee of $25. Before it may be accepted and considered properly filed, the petition must be accompanied by executed Forms MA 7-50 A and B 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 Form MA 7-50B and such certification shall be omitted if the beneficiary is qualified for and will be engaged in an occupation currently listed in Schedule A or in Schedule CPrecertification List (29 CFR Part 60), when the latter list has not been suspended by the Secretary of Labor, or the beneficiary is qualified as a member of a profession for which the Secretary of Labor does not require a job offer or has exceptional ability in the sciences or arts and will be engaged therein. The district director may request the Secretary of Labor or his designated representative to furnish an advisory opinion of the alien's occupational qualifications in any specific case.

(2) Certification under section 212 (a) (14). An alien whose occupation is currently listed in Schedule A (29 CFR Part 60) will be considered as having obtained a certification under section 212 (a) (14) of the Act upon determination by the district director that the alien is qualified for and will be engaged in such occupation. In the case of an alien whose occupation is currently listed in Schedule B, the Secretary of Labor has announced that the determination and certification required by section 212 (a) (14) of the Act cannot now be made (29 CFR Part 60). An alien whose occupation is currently listed in Schedule C-Precertification List when that list has not been suspended by the Secretary of Labor will be considered as having obtained a certification under section 212(a) (14) of the Act upon determination by the district director that the alien is qualified for and will be engaged in such occupation and that the alien will not reside in an area excluded from precertification by the Secretary of Labor. In the case of a beneficiary who the district director finds is a member of a profession for which the Secretary of Labor does not require a job offer or a person with exceptional ability in the sciences or arts, but who is not included in Schedule A (29 CFR Part 60), the district director will refer Form MA 7-50A to the appropriate Regional Manpower Administrator for a determination as to whether an individual labor certification will be issued. In the case of any other alien, his employer or prospective employer may apply for certification under section 212(a) (14) of the Act by submitting properly executed Forms MA 7-50A and MA 7-50B, together

with the documentary evidence required by the instructions for completion of the forms, to the local office of the State Employment Service serving the area of intended employment. Information concerning the categories of employment listed in Labor Department Schedules (29 CFR Part 60) may be obtained from principal offices of the Service, from the State Employment Service offices and from U.S. consular offices.

(3) Sixth preference petition for member of professions or person having exceptional ability in 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 with exceptional ability in the sciences or the arts from filing a petition for sixth preference classification; however, any such petition shall be subject to the requirements of this paragraph and § 204.2(f).

(4) Interview and decision. The beneficiary and the petitioner may be required to appear in person before an immigration officer prior to the adjudication of the petition 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, 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 the petition for lack of a certification by the Secretary of Labor pursuant to section 212 (a) (14) of the Act.

[30 F.R. 14773, Nov. 30, 1965, as amended at 31 F.R. 7217, May 18, 1966; 31 F.R. 10530, Aug. 5, 1966; 31 F.R. 15322, Dec. 7, 1966; 33 F.R. 9166, June 21, 1968; 33 F.R. 15200, Oct. 11, 1968; 34 F.R. 5325, Mar. 18, 1969; 34 F.R. 13921, Aug. 30, 1969; 35 F.R. 7284, May 9, 1970; 35 F.R. 13828, Sept. 1, 1970] § 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 citi

zen 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 perma