(c) Waiver of fees. (1) Except as otherwise provided in this subparagraph and in § 3.3(b) of this chapter, any of the fees prescribed in paragraph (b) of this section relating to applications, petitions, appeals, motions, or requests may be waived in any case in which the alien or other party affected is unable to pay the prescribed fee if he files his affidavit asking for permission to prosecute without payment of fee the application, petition, appeal, motion, or request, and stating his belief that he is entitled to or deserving of the benefit requested and the reasons for his inability to pay. The officer of the Service having jurisdiction to render a decision on the application, petition, appeal, motion, or request may, in his discretion, grant the waiver of fee. Fees for "Passenger Travel Reports via Sea and Air" and for special statistical tabulations may not be waived.

(2) When the prescribed fee is for services to be performed by the clerk of court under section 344 (a) of the Act, the affidavit for waiver of the fee shall be filed with the district director or officer in charge of the Service having administrative jurisdiction over the place in which the court is located at least 7

days prior to the date the fee is required to be paid. If the waiver is granted, there shall be delivered to the clerk of court by a Service representative on or before the date the fee is required to be paid, a notice prepared on Service letterhead and signed by the officer granting the waiver, that the fee has been waived pursuant to this paragraph.

[34 F.R. 13920, Aug. 30, 1969, as amended at 35 F.R. 5958, Apr. 10, 1970; 35 F.R. 13828, Sept. 1, 1970; 36 F.R. 14630, Aug. 7, 1971; 37 F.R. 927, Jan. 21, 1972; 37 F.R. 22725, Oct. 21, 1972]

§ 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 unpublished 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 shail 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 reauing 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 RegulationsChapter I, a complete set of the forms listed in Parts 299 and 499 of this chapter, and the Department of State Foreign Affairs Manual, Volume 9-Visas. Fees will not be charged for providing access to any of thse materials, but fees in accordance with § 103.7(b) will be charged for furnishing copies.

[32 F.R. 9623, July 4, 1967, as amended at 36 F.R. 20151, Oct. 16, 1971]

§ 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 desig

nate 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 respect 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

(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 peti

tion 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) 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 a fee of $25. 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 Statement of Qualifications of Alien on Form MA 7-50A and Job Offer for Alien Employment on Form MA 7-50B 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 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 (29 CFR Part 60), or the beneficiary is qualified as a member of a profession or has exceptional ability in the sciences or arts and will be engaged therein.

(2) Place of filing. A petition to classify the status of an alien under section 203 (a)(3) of the Act shall be filed by such alien or by any person on his behalf in the office of the Service having jurisdiction over the place in the United States where the alien intends to reside. A petition to classify the status of an alien under section 203(a) (6) of the Act shall be filed by the person, firm, or organization desiring and intending to employ the alien within the United States in the office of the Service having jurisdiction over the place of intended employment.

(3) Filing date. In the case of a sixth preference petition received by the Service on or after April 1, 1971, which is required to be and is supported by a

labor certification issued on the basis of a job offer, 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, or April 1, 1971, whichever is the later. In the case of any other sixth preference petition, and in the case of any third preference petition, the filing date of the petition shall be the date it was properly filed with the appropriate Service office.

(4) Sixth-preference petition for member of the professions or person having exceptional ability in the sciences or arts. Nothing contained in this part shali 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 sixth-preference petitions.

(5) 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.

[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. 13921, Aug. 30, 1969; 36 F.R. 5835, Mar. 30, 1971]

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 ab