places of birth or residence, provided that he establishes by clear, unequivocal, and convincing evidence that the record of the claimed admission relates to him, and, if entry occurred on or after May 22, 1918, if under other than his full, true and correct name that he also establishes that the name was not adopted for the purpose of concealing his identity when obtaining a passport or visa, or for the purpose of using the passport or visa of another person or otherwise evading any provision of the immigration laws, and that the name used at the time of entry was one by which he had been known for a sufficient length of time prior to making application for a passport or visa to have permitted the issuing authority or authorities to have made any necessary investigation concerning him or that his true identity was known to such officials.

[32 FR 9622, July 4, 1967]

§ 101.3 Creation of record of lawful permanent resident status for person born under diplomatic status in the United States.

(a) Person born to foreign diplomat. (1) Status of person. A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the Fourteenth Amendment to the Constitution. Such a person may be considered a lawful permanent resident at birth.

(2) Definition of foreign diplomatic officer. Foreign diplomatic officer means a person listed in the State Department Diplomatic List, also known as the Blue List. It includes ambassadors, ministers, chargés d'affaires, counselors, secretaries and attachés of embassies and legations as well as members of the Delegation of the Commission of the European Communities. The term also includes individuals with comparable diplomatic status and immunities who are accredited to the United Nations or to the Organization of American States, and other individuals who are also accorded comparable diplomatic status.

(b) Child born subject to the jurisdiction of the United States. A child born in the

United States is born subject to the jurisdiction of the United States and is a United States citizen if the parent is not a "foreign diplomatic officer" as defined in paragraph (a)(2) of this section. This includes, for example, a child born in the United States to one of the following foreign government officials or employees:

(1) Employees of foreign diplomatic missions whose names appear in the State Department list entitled "Employees of Diplomatic Missions Not Printed in the Diplomatic List," also known as the White List; employees of foreign diplomatic missions accredited to the United Nations or the Organization of American States; or foreign diplomats accredited to other foreign states. The majority of these individuals enjoy certain diplomatic immunities, but they are not "foreign diplomatic officers" as defined in paragraph (a)(2) of this section. The immunities. if any, of their family members are derived from the status of the employees or diplomats.

(2) Foreign government employees with limited or no diplomatic immunity such as consular officials named on the State Department list entitled "Foreign Consular Officers in the United States" and their staffs.

(c) Voluntary registration as lawful permanent resident of person born to foreign diplomat. Since a person born in the United States to a foreign diplomatic officer is not subject to the jurisdiction of the United States, his/her registration as a lawful permanent resident of the United States is voluntary. The provisions of section 262 of the Act do not apply to such a person unless and until that person ceases to have the rights, privileges, exemptions, or immunities which may be claimed by a foreign diplomatic officer.

(d) Retention of lawful permanent residence. To be eligible for lawful permanent resident status under paragraph (a) of this section, an alien must establish that he/she has not abandoned his/ her residence in the United States. One of the tests for retention of lawful permanent resident status is continuous residence, not continuous physical presence, in the United States. Such a person will not be considered to have abandoned his/her residence in the

United States solely by having been admitted to the United States in a nonimmigrant classification under paragraph (15)(A) or (15)(G) of section 101(a) of the Act after a temporary stay in a foreign country or countries on one or several occasions.

(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act, as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)

[47 FR 940, Jan. 8, 1982]

§ 101.4 Registration procedure.

The procedure for an application for creation of a record of lawful permanent residence and a Permanent Resident Card, Form I-551, for a person eligible for presumption of lawful admission for permanent residence under § 101.1 or § 101.2 or for lawful permanent residence as a person born in the United States to a foreign diplomatic officer under § 101.3 is described in §264.2 of this chapter.

(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act, as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)

[47 FR 941, Jan. 8, 1982, as amended at 63 FR 70315, Dec. 21, 1998]

$101.5 Special immigrant status for certain G-4 nonimmigrants.

(a) Application. An application for adjustment to special immigrant status under section 101(a)(27)(I) of the INA shall be made on Form I-485. The application date of the I-485 shall be the date of acceptance by the Service as properly filed. If the application date is other than the fee receipt date it must be noted and initialed by a Service officer. The date of application for adjustment of status is the closing date for computing the residence and physical presence requirement. The applicant must have complied with all requirements as of the date of application.

(b) Documentation. All documents must be submitted in accordance with §103.2(b) of this chapter. The application shall be accompanied by documentary evidence establishing the aggregate residence and physical presence required. Documentary evidence may include employment

official

verification, records of official or personnel transactions or recordings of events occurring during the period of

claimed residence and physical presence. Affidavits of credible witnesses may also be accepted. Persons unable to furnish evidence in their own names may furnish evidence in the names of parents or other persons with whom they have been living, if affidavits of the parents or other persons are submitted attesting to the claimed residence and physical presence. The claimed family relationship to the principle G-4 international organization officer or employee must be substantiated by the submission of

verifiable civil documents.

(c) Residence and physical presence requirements. All applicants applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA must have resided and been physically present in the United States for a designated period of time.

For purposes of this section only, an absence from the United States to conduct official business on behalf of the employing organization, or approved customary leave shall not be subtracted from the aggregated period of required residence or physical presence for the current or former G-4 officer or employee or the accompanying spouse and unmarried sons or daughters of such officer or employee, provided residence in the United States is maintained during such absences, and the duty station of the principle G-4 nonimmigrant continues to be in the United States. Absence from the United States by the G-4 spouse or unmarried son or daughter without the principle G-4 shall not be subtracted from the aggregate period of residence and physical presence if on customary leave as recognized by the international organization employer. Absence by the unmarried son or daughter while enrolled in a school outside the United States will not be counted toward the physical presence requirement.

(d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i), and (ii) requires the applicant to accrue the required period of residence and physical presence in the United States while maintaining status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires such time accrued only in G-4 nonimmigrant status.

Maintaining G-4 status for this purpose is defined as maintaining qualified employment with a "G" international organization or maintaining the qualifying family relationship with the G-4 international organization officer or employee. Maintaining status as an N nonimmigrant for this purpose requires the qualifying family relationship to remain in effect. Unauthorized employment will not remove an otherwise eligible alien from G-4 status for residence and physical presence requirements, provided the qualifying G-4 status is maintained.

[54 FR 5927, Feb. 7, 1989]

103.31 Notices of subpoenas and emergency disclosures.

103.32 Information forms.

103.33 Contracting record systems.

103.34 Security of records systems. 103.35 Use and collection of Social Security numbers.

103.36 Employee standards of conduct with regard to privacy.

AUTHORITY: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

SOURCE: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.

§ 103.1 Delegations of authority.

(a) Deputy Commissioner. Without divesting the Commissioner of any of the powers, duties, and privileges delegated by the Attorney General, coextensive authority is delegated to the Deputy Commissioner. The Deputy Commissioner is delegated responsibility for providing overall supervision and direction to the four Executive Associate Commissioners of the Service.

(b) General Counsel (1) General. Under the direction and supervision of the Commissioner, the General Counsel is delegated the authority to carry out the duties of the chief legal officer for the Service, and is assisted by the deputy general counsel(s) and staff. The General Counsel advises the Commissioner, the Deputy Commissioner, and staff on legal matters; prepares legislative reports; and assists in litigation. The General Counsel is delegated the authority to oversee the professional activities of all Service attorneys assigned to field offices and to make recommendations to the Department of Justice on all personnel matters involving Service attorneys, including attorney discipline which requires final action or approval by the Deputy Attorney General or other designated Department of Justice official. The General Counsel is delegated authority to perform the functions conferred upon the Commissioner with respect to production or disclosure of material in Federal and state proceedings as provided in 28 CFR 16.24(a).

(2) Regional Counsel. In addition to other legal activities performed under the direction and supervision of the General Counsel, Regional Counsel are

delegated authority within their respective regional areas, concurrent with that of the General Counsel, to perform the functions conferred upon the Commissioner with respect to production or disclosure of material in Federal and state proceedings as provided in 28 CFR 16.24(a).

(c) Director of Congressional Relations. Under the direction and supervision of the Commissioner, the Director of Congressional Relations is delegated authority to respond to Congressional inquiries and advise the Commissioner and staff concerning legislative matters of the Service.

(d) Director of Public Affairs. Under the direction and supervision of the Commissioner, the Director of Public Affairs is delegated authority to direct and coordinate public affairs policy, public information, news releases, public liaison, and outreach; to advance public affairs and Service initiatives such as naturalization and employer education; and to produce information products.

(e) Director of Internal Audit. Under the direction and supervision of the Commissioner, the Director of the Office of Internal Audit is delegated authority to plan, direct, and coordinate the Service's internal audit program and compliance review program; to initiate and to conduct or direct the conduct of investigations of alleged mismanagement by Service employees; to initiate and to conduct or direct the conduct of investigations of alleged misconduct by Service employees, subject to agreements with the Department's Office of Professional Responsibility and Office of Inspector General (OIG); to exercise those powers and authorities necessary to investigate matters which are material and relevant to the administration of the Service, including the power and authority to administer oaths and to take and consider evidence; to collect information concerning the efficiency and effectiveness of Service operations and programs and Service systems to eliminate fraud, waste, and abuse in the workplace; and to act as the Service's liaison with outside audit/inspection agencies.

(f) Executive Associate Commissioner for Programs-(1) General. Under the direc

tion and supervision of the Deputy Commissioner, the Executive Associate Commissioner for Programs is delegated authority for policy development, review and integration of the Service's enforcement and examinations programs, and for providing general direction to, and supervision of, the Associate Commissioners for Enforcement and Examinations.

(2) Associate Commissioner for Enforcement-(i) General. Under the direction and supervision of the Executive Associate Commissioner for Programs, the Associate Commissioner for Enforcement is delegated authority and responsibility for program and policy planning, development, coordination, evaluation, and staff direction to the Border Patrol, Investigations, Detention and Deportation, Intelligence, and Asset Forfeiture programs, and to impose administrative fines, penalties, and forfeitures under sections 274, 274A and 274C of the Act. The Associate Commissioner for Enforcement is responsible for providing general direction and supervision to the:

(A) Assistant Commissioner for Border Patrol;

(B) Assistant Commissioner for Investigations;

(C) Assistant Commissioner for Detention and Deportation;

(D) Assistant Commissioner for Intelligence; and

(E) Director of Asset Forfeiture.

(ii) Director of Asset Forfeiture. Under the direction and supervision of the Associate Commissioner for Enforcement, the Director of Asset Forfeiture is delegated the authority to direct and coordinate the Service program under section 274(b) of the Act which provides for the seizure and forfeiture of conveyances used in violation of section 274(a) of the Act.

(3) Associate Commissioner for Examinations. (i) General. Under the direction and supervision of the Executive Associate Commissioner for Programs, the Associate Commissioner for Examinations is delegated authority and responsibility for program and policy planning, development, coordination, evaluation, and staff direction to the Adjudications and Nationality, Inspections, Administrative Appeals, Service

(E) Director of Administrative Appeals.

(ii) Administrative Fines. The Associate Commissioner for Examinations is delegated the authority to impose administrative fines under provisions of the Act in any case which is transmitted to the National Fines Office by a district director.

(iii) Appellate Authorities. In addition, the Associate Commissioner for Examinations exercises appellate jurisdiction over decisions on;

(A) Breaching of bonds under § 103.6(e);

(B) Petitions for immigrant visa classification based on employment or as a special immigrant or entrepreneur under §§ 204.5 and 204.6 of this chapter except when the denial of the petition is based upon lack of a certification by the Secretary of Labor under section 212(a)(5)(A) of the Act;

(C) Indochinese refugee applications for adjustment of status under section 103 of the Act of October 28, 1977;

(D) Revoking approval of certain petitions under § 205.2 of this chapter.;

(E) Applications for permission to reapply for admission to the United States after deportation or removal under § 212.2 of this chapter;

(F) Applications for waiver of certain grounds of excludability under § 212.7(a) of this chapter;

(G) Applications for waiver of the two-year foreign residence requirement under § 212.7(c) of this chapter;

(H) Petitions for approval of schools under § 214.3 of this chapter;

(I) Decisions of district directors regarding withdrawal of approval of schools for attendance by foreign students under § 214.4 of this chapter;

(J) Petitions for temporary workers or trainees and fiancees or fiances of U.S. citizens under §§ 214.2 and 214.6 of this chapter;

(K) Applications for issuance of reentry permits under 8 CFR part 223;

(L) Applications for refugee travel documents under 8 CFR part 223;

(M) Applications for benefits of section 13 of the Act of September 11, 1957, as amended, under §245.3 of this chapter;

(N) Adjustment of status of certain resident aliens to nonimmigrants under § 247.12(b) of this chapter;

(0) Applications to preserve residence for naturalization purposes under § 316a.21(c) of this chapter;

(P) Applications for certificates of citizenship under §341.6 of this chapter; (Q) Administration cancellation of certificates, documents, and records under § 342.8 of this chapter;

(R) Applications for certificates of naturalization or repatriation under § 343.1 of this chapter;

(S) Applications for new naturalization or citizenship papers under § 343a.1(c) of this chapter;

(T) Applications for special certificates of naturalization under §343b.11(b) of this chapter;

(U) [Reserved]

(V) Petitions to classify Amerasians under Public Law 97-359 as the children of United States citizens;

(W) Revoking approval of certain applications, as provided in §§ 214.2, 214.6, and 214.11 of this chapter;

(X) Orphan petitions under 8 CFR 204.3;

(Y) Applications for advance process of orphan petitions under 8 CFR 204.3;

(Z) Invalidation of a temporary labor certification issued by the governor of Guam under § 214.2(h)(3)(v) of this chapter;

(AA) Application for status as temporary or permanent resident under §§ 245a.2 or 245a.3 of this chapter;

(BB) Application for status as temporary resident under $210.2 of this chapter;

(CC) Termination of status as temporary resident under $210.4 of this chapter;

(DD) Termination of status as temporary resident under §245a.2 of this chapter;

(EE) Application for waiver of grounds of excludability under Parts 210, 210a, and 245a of this chapter;