ling 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 disclo

sure.

§ 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 16.55.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]

§ 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 16.56.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]

§ 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 16.57.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]

PART 109-(RESERVED)

PART 204-IMMIGRANT PETITIONS

Sec.

204.1 General information about relative petitions.

204.2 Relative petitions. 204.3 Orphans.

204.4 Amerasian child of a United States

citizen.

204.5 Petitions for employment-based immigrants.

204.6 Petitions for employment creation

aliens.

204.7 Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976. 204.8 Petitions for employees of certain United States businesses operating in Hong Kong.

204.9 Special immigrant status for certain aliens who have served honorably (or are enlisted to serve) in the Armed Forces of the United States for at least 12 years. 204.10

Petitions by, or for, certain scientists of the Commonwealth of Independent States or the Baltic states.

204.11 Special immigrant status for certain aliens declared dependent on a juvenile court (special immigrant juvenile). AUTHORITY: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255; 8 CFR part 2.

§ 204.1 General information about relative petitions.

(a) Types of relative petitions. A petitioner seeking to accord a classification as an immediate relative under section 201(b) of the Act or a classification as a preference immigrant under section 203(a) of the Act on behalf of a qualifying relative must file a Form I30, Petition for Alien Relative. A widow or widow seeking classification as an immediate relative must file a Form I-360, Petition for Amerasian, Widow, or Special Immigrant. A petitioner seeking classification on behalf of an orphan as defined in §101(b)(1)(F) of the Act must file either Form I-600 or Form I-600A. A petitioner seeking classification as, or on behalf of, an Amerasian under Public Law 97-359 must file a Form I-360, Petition for Amerasian, Widow, or Special Immigrant. The Form I-130 and Form I-360 petitions are described in §204.2; orphan petitions are described in §204.3; and Amerasian petitions are described in § 204.4.

(b) Filing fee. Forms I-130 and I-360 must be accompanied by the appropriate fee under 8 CFR 103.7(b)(1).

(c) Filing date. The filing date of a petition shall be the date it is properly filed under paragraph (d) of this section and shall constitute the priority date. (d) Proper filing. A petition shall be considered properly filed if:

(1) It is signed by the petitioner, and (2) A fee has been received by the Service office or United States Consular office having jurisdiction.

(3) If, during normal processing, a delay results from deficiencies in the initial filing, the priority date will be established only when the petition is properly signed by the petitioner and the fee has been collected by the Service. If questions arise concerning the filing of the petition which cannot be resolved through a check of the Service fee receipting system (FARES) or other fee collection system, then the director may consider the date of receipt of the petition to be the priority date.

(e) Jurisdiction—(1) Petitioner residing in the United States. The petition must be filed with the Service office having jurisdiction over the place where the petitioner is residing. When the petition is accompanied by an application for adjustment of status, the petition may be filed with the Service office having jurisdiction over the beneficiary's place of residence.

(2) Petitioner residing in certain countries abroad. The Service has overseas offices located in Vienna, Austria; Frankfurt, Germany; Athens, Greece; Hong Kong; New Delhi, India; Rome, Italy; Nairobi, Kenya; Seoul, Korea; Ciudad Juarez, Mexico City, Monterrey, Guadalajara, and Tijuana, Mexico; Manila, the Philippines; Singapore; Bangkok, Thailand; and London, the United Kingdom of Great Britain and Northern Ireland. If the petitioner resides in one of these countries, the petition must be filed with the Service office located in that country. The beneficiary does not have to reside in the same jurisdiction as the petitioner for the Service to accept the petition. The overseas Service officer may accept and adjudicate a petition filed by a petitioner who does not reside within the office's jurisdiction when it is established that emergent or humanitarian

reasons for acceptance exist or when it is in the national interest.

(3) Jurisdiction assumed by United States consular officer. United States consular officers assigned to visa-issuing posts abroad, except those in countries listed in paragraph (e)(2) of this section, are authorized to accept and approve a relative petition or a petition filed by a widow or widower if the petitioner resides in the area over which the post has jurisdiction, regardless of the beneficiary's residence or physical presence at the time of filing. In emergent or humanitarian cases and cases in the national interest, the United States consular officer may accept a petition filed by a petitioner who does not reside within the consulate's jurisdiction. While consular officers are authorized to approve petitions, they must refer any petition which is not clearly approvable to the appropriate Service office. Consular officers may consult with the appropriate Service office abroad prior to stateside referral, if they deem it necessary.

(f) Supporting documentation. (1) Documentary evidence consists of those documents which establish the United States citizenship or lawful permanent resident status of the petitioner and the claimed relationship of the petitioner to the beneficiary. They must be in the form of primary evidence, if available. When it is established that primary evidence is not available, secondary evidence may be accepted. To determine the availability of primary documents, the Service will refer to the Department of State's Foreign Affairs Manual (FAM). When the FAM shows that primary documents are generally available in the country of issue but the petitioner claims that his or her document is unavailable, a letter from the appropriate registrar stating that the document is not available will not be required before the Service will accept secondary evidence.

(2) Original documents or legible, true copies of original documents are acceptable. The Service reserves the right to require submission of original documents when deemed necessary. Documents submitted with the petition will not be returned to the petitioner, except when originals are requested by

the Service. If original documents are requested by the Service, they will be returned to the petitioner after a decision on the petition has been rendered, unless their validity or authenticity is in question. When an interview is required, all original documents must be presented for examination at the interview.

(3) Foreign language documents must be accompanied by an English translation which has been certified by a competent translator.

(g) Evidence of petitioner's United States citizenship or lawful permanent residence (1) Primary evidence. A petition must be accompanied by one of the following:

(i) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States;

(ii) An unexpired United States passport issued initially for a full ten-year period to a petitioner over the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national);

(iii) An unexpired United States passport issued initially for a full five-year period to the petitioner under the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national);

(iv) A statement executed by a United States consular officer certifying the petitioner to be a United States citizen and the bearer of a currently valid United States passport;

(v) The petitioner's Certificate of Naturalization or Certificate of Citizenship;

(vi) Department of State Form FS240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner;

(vii) The petitioner's Form I-551, Alien Registration Receipt Card, or other proof given by the Service as evidence of lawful permanent residence. Photocopies of Form I-551 or of a Certificate of Naturalization or Certificate of Citizenship may be submitted as evidence of status as a lawfully permanent resident or United States citizen, respectively.

(2) Secondary evidence. If primary evidence is unavailable, the petitioner must present secondary evidence. Any

evidence submitted as secondary evidence will be evaluated for authenticity and credibility. Secondary evidence may include, but is not limited to, one or more of the following documents:

(i) A baptismal certificate with the seal of the church, showing the date and place of birth in the United States and the date of baptism;

(ii) Affidavits sworn to by persons who were living at the time and who have personal knowledge of the event to which they attest. The affidavits must contain the affiant's full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant acquired knowledge of the event;

(iii) Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s);

(iv) Census records showing the name, place of birth, and date of birth or age of the petitioner; or

(v) If it is determined that it would cause unusual delay or hardship to obtain documentary proof of birth in the United States, a United States citizen petitioner who is a member of the Armed Forces of the United States and who is serving outside the United States may submit a statement from the appropriate authority of the Armed Forces. The statement should attest to the fact that the personnel records of the Armed Forces show that the petitioner was born in the United States on a certain date.

(h) Requests for additional documentation. When the Service determines that the evidence is not sufficient, an explanation of the deficiency will be provided and additional evidence will be requested. The petitioner will be given 60 days to present additional evidence, to withdraw the petition, to request a decision based on the evidence submitted, or to request additional time to respond. If the director determines that the initial 60-day period is insufficient to permit the presentation of additional documents, the director may provide an additional 60 days for the submission. The total time shall not exceed 120 days, unless unusual cir

cumstances exist. Failure to respond to a request for additional evidence will result in a decision based on the evidence previously submitted.

[57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993]

EFFECTIVE DATE NOTE: At 58 FR 48778, Sept. 20, 1993, §204.1 was amended by revising paragraph (g)(1)(vii), effective September 20, 1994. At 59 FR 47063, Sept. 14, 1994, the effective date was delayed until March 20, 1995. At 60 FR 14353, Mar. 17, 1995, the effective date was further delayed until March 20, 1996. For the convenience of the reader the superseded text is set forth below.

$204.1 General information about relative petitions.

(g) (1)

(vii) The petitioner's Form I-151 or I-551 Alien Registration Receipt Card, or other proof given by the Service as evidence of lawful permanent residence. The Service will accept copies of Forms I-151 or I-551, Certificate of Naturalization, or Certificate of Citizenship when submitted as evidence of United States citizenship or lawful permanent residence.

§ 204.2 Relative petitions.

(a) Petition for a spouse (1) Eligibility. A United States citizen or alien admitted for lawful permanent residence may file a petition on behalf of a spouse.

(1) Marriage within five years of petitioner's obtaining lawful permanent resident status. (A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, unless:

(1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purposes of evading the immigration laws; or

(2) The marriage through which the petitioner obtained permanent residence was terminated through death.

(B) Documentation. The petitioner should submit documents which cover the period of the prior marriage. The types of documents which may establish that the prior marriage was not entered into for the purpose of evading the immigration laws include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) A lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

(5) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship. (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer about the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

(6) Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States.

(C) The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the "clear and convincing evidence" standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence. The director may choose to initiate deportation proceedings based upon information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage

was not entered into for the purpose of evading the immigration laws. Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203(c) of the Act based upon any spousal second preference petition.

(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the alien's file.

(iii) Marriage during proceedings-general prohibition against approval of visa petition. A visa petition filed on behalf of an alien by a United States citizen or lawful permanent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in deportation or exclusion proceedings, or judicial proceedings relating thereto.

(A) Commencement of proceedings. The period during which the alien is in deportation or exclusion proceedings, or judicial proceedings relating thereto,

commences:

(1) With the issuance of the Order to Show Cause and Notice of Hearing (Form I-221) prior to June 20, 1991;

(2) With the filing of an Order to Show Cause and Notice of Hearing (Form I-221), issued on or after June 20, 1991, with the Immigration Court; or

(3) With the issuance of the Notice to Applicant for Admission Detained for Hearing before Immigration Judge (Form I-122).

(B) Termination of proceedings. The period during which the alien is in deportation or exclusion proceedings, or judicial proceedings relating thereto, terminates:

(1) When the alien departs from the United States while an order of deportation is outstanding or before the expiration of the voluntary departure time granted in connection with an alternate order of deportation under 8 CFR 243.5;

(2) When the alien departs from the United States pursuant to an order of exclusion;

(3) When the alien is found not to be excludable or deportable from the

United States;

(4) When the Order to Show Cause is canceled pursuant to 8 CFR 242.7(a);

(5) When proceedings are terminated by the immigration judge or the Board of Immigration Appeals; or

(6) When a petition for review or an action for habeas corpus is granted by a Federal Court on judicial review.

(C) Exemptions. This prohibition shall no longer apply if:

(1) The alien is found not to be excludable or deportable from the United States;

(2) The Order to Show Cause is canceled pursuant to 8 CFR 242.7(a);

(3) Proceedings are terminated by the immigration judge or the Board of Immigration Appeals;

(4) A petition for review or an action for habeas corpus is granted by a Federal Court on judicial review;

(5) The alien has resided outside the United States for two or more years following the marriage; or

(6) The petitioner establishes eligibility for the bona fide marriage exemption under section 204(g) of the Act by providing clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, was not entered into for the purpose of procuring the alien's entry as an immigrant, and no fee or other consideration was given (other than to an attorney for assistance in preparation of a lawful petition) for the filing of the petition.

(D) Request for exemption. No application or fee is required to request an exemption. The request must be made in writing and submitted with the Form I-130. The request must state the reason for seeking the exemption and must be supported by documentary evi