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Monterrey, Mexico; Nairobi, Kenya; New Delhi, India; Seoul, Korea; Singapore, Republic of Singapore; Tijuana, Mexico; Port-au-Prince, Haiti; Karachi, Pakistan; and such other overseas suboffices as the Service may establish in the future, are delegated authority to perform the following functions:

(A) Authorize waivers of grounds of excludability under sections 212 (h) and (i) of the Act;

(B) Adjudicate applications for permission to reapply for admission to the United States after deportation or removal, if filed by an applicant for an immigrant visa in conjunction with an application for waiver of grounds of excludability under section 212 (h) or (i) of the Act, or if filed by an applicant for a nonimmigrant visa under section 101(a)(15)(K) of the Act;

(C) Approve or deny visa petitions for any relative;

(D) Approve recommendations made by consular officers for waiver of grounds of excludability in behalf of nonimmigrant visa applicants under section 212(d)(3) of the Act and concur in proposed waivers by consular officers of the requirement of visa or passport by a nonimmigrant on the basis of unforeseen emergency in cases in which the Department of State had delegated recommending power to the consular officers;

(E) Exercise discretion to grant or deny applications for the benefits set forth in sections 211 and 212(c) of the Act;

(F) Process Form I-90 applications and deliver duplicate Forms 1-551;

(G) Process Form N-565 applications and deliver certificates issued thereunder; and

(H) Grant or deny applications of aliens seeking classification as refugees under section 207 of the Act.

(h) Executive Associate Commissioner for Policy and Planning. Under the direction and supervision of the Deputy Commissioner, the Executive Associate Commissioner for Policy and Planning is delegated the authority to oversee the development and coordination of long-range planning activities, and policy formulation, codification, and dissemination within the Agency. The Executive Associate Commissioner is also responsible for informing and advising

the Commissioner and the Deputy Commissioner on other issues which cross program lines or bear inter-agency implications. The Executive Associate Commissioner also serves as liaison with, and representative of, the Service to other organizations engaged in policy development in matters affecting the mission of the Service, research and statistics, and the exchange of statistical, scientific, technological data and research.

(i) Executive Associate Commissioner for Management—(1) General. Under the direction and supervision of the Deputy Commissioner, the Executive Associate Commissioner for Management is delegated authority to plan, direct, and manage all aspects of the administration of the Service. The delegation includes the authority to develop and promulgate administrative policies and programs for all financial, human resource, administrative, and information resource matters of the Service. The Executive Associate Commissioner for Management is delegated the authority to settle tort claims of $25,000 or less than 28 U.S.C. 2672, and to compromise, suspend, or terminate collection of claims of the United States not exceeding $100,000 (exclusive of interest) under 31 U.S.C. 3711. The Executive Associate Commissioner for Management supervises the Directors of Security, Equal Employment Opportunity, and Files and Forms Management, the Associate Commissioner for Human Resources and Administration, the Associate Commissioner for Finance, the Associate Commissioner for Information Resources Management, and the Directors, Administrative Centers.

(2) Director of Security. Under the direction and supervision of the Executive Associate Commissioner for Management, the Director of the Office of Security is delegated authority to develop policy, plan, direct, and coordinate the Service's security program. The Security program includes the application of safeguards in program areas of personnel security, physical security, information and document security, automated data processing and telecommunications security, and contingency planning related to threat, loss, or other serious emergency in any of these areas.

(3) Director of Equal Employment Opportunity. Under the direction and supervision of the Executive Associate Commissioner for Management, the Director of Equal Employment Opportunity is delegated authority to develop policies and to implement and direct the Service's programs relating to equal employment opportunity for all employees and applicants. The Director is responsible for the Service's efforts to comply with provisions of the Civil Rights Act of 1964 and Department of Justice programs and directives affecting discrimination in employment. The Director supervises, coordinates, directs, and evaluates the affirmative employment and discrimination complaint program of the Service.

(4) Director of Files and Forms Management. Under the direction and supervision of the Executive Associate Commissioner for Management, the Director of Files and Forms Management is delegated authority to develop policies, plan, coordinate, evaluate, counsel, and direct the Service's National Records Center, Forms Center, SAVE Program, centralized FOIA/PA, records policy, and correspondence files programs.

(5) Associate Commissioner for Human Resources and Administration. Under the direction and supervision of the Executive Associate Commissioner for Management, the Associate Commissioner for Human Resources and Administration is delegated authority to develop policies, plan, develop, coordinate, evaluate, counsel, and direct the personnel,

career development, contracting, engineering, facility, and administrative programs of the Service. The

Associate Commissioner for Human Resources and Administration provides direction to, and supervision of, the:

(i) Assistant Commissioner for Human Resources and Development; and

(ii) Assistant Commissioner for Administration.

(6) Associate Commissioner for Finance. Under the direction and supervision of the Executive Associate Commissioner for Management, the Associate Commissioner for Finance is delegated authority to develop policies, plan, develop, coordinate, evaluate, counsel, and direct the Service's resource re

quirements and utilization. The Associate Commissioner for Finance is responsible for all aspects of financial management, including budgeting, reporting, internal controls, and analysis. The Associate Commissioner for Finance is responsible for the presentation of internal reports to management, the preparation of external reports and certifications required by statute or regulation, and the representation of the Service before the Congress, and agencies of the Executive Branch on matters related to financial activities. The Associate Commissioner for Finance is also delegated authority to settle claims of $10,000 or less under 28 U.S.C. 2672 and to compromise, suspend, or terminate collection of claims of the United States not exceeding $50,000 (exclusive of interest) under 31 U.S.C. 3711. The Associate Commissioner for Finance provides direction to, and supervision of, the:

(i) Associate Commissioner for Budget; and (ii) Assistant Commissioner for Financial Management.

(7) Associate Commissioner for Information Resources Management. Under the direction and supervision of the Executive Associate Commissioner for Management, the Associate Commissioner for Information Resources Management is delegated authority to develop policies, plan, develop, coordinate, evaluate, counsel, manage and direct the Service's Automated Data Processing, Telecommunication, Radio, and Electronic programs. The Associate Commissioner for Information Resources Management provides direction to, and supervision of, the:

(i) Assistant Commissioner for Data Systems; and

(ii) Assistant Commissioner for Systems Integration.

(8) Directors of Administrative Centers. Under the direction and supervision of the Executive Associate Commissioner for Management, the directors are delegated authority over the human resources, administrative, information resource, security, and financial activities of the Service within their respective area of responsibility. They are also delegated the authority to: (i) Settle tort claims of $10,000 or less under 28 U.S.C. 2672; and

(ii) Compromise, suspend, or terminate collection of claims of the United States not exceeding $50,000 (exclusive of interest) under 31 U.S.C. 3711.

(j) Immigration Officer. Any immigration officer, immigration inspector, immigration examiner, adjudications officers, Border Patrol agent, aircraft pilot, airplane pilot, helicopter pilot, deportation officer, detention enforcement officer, detention guard, investigator, special agent, investigative assistant, intelligence officer, intelligence agent, general attorney, applications adjudicator, contact representative, chief legalization officer, supervisory legalization officer, legalization adjudicator, legalization officer and legalization assistant, forensic document analyst, fingerprint specialist, immigration information officer, immigration agent (investigations), asylum officer, or senior or supervisory officer of such employees is hereby designated as an immigration officer authorized to exercise the powers and duties of such officer as specified by the Act and this chapter. [59 FR 60070, Nov. 22, 1994, as amended at 61 FR 13072, Mar. 26, 1996; 61 FR 28010, June 4, 1996; 62 FR 9074, Feb. 28, 1997; 62 FR 10336, Mar. 6, 1997; 63 FR 12984, Mar. 17, 1998; 63 FR 63595, Nov. 16, 1998; 63 FR 67724, Dec. 8, 1998; 64 FR 27875, May 21, 1999)

fees are non-refundable and, except as otherwise provided in this chapter, must be paid when the application is filed.

(2) Signature. An applicant or petitioner must sign his or her application or petition. However, a parent or legal guardian may sign for a person who is less than 14 years old. A legal guardian may sign for a mentally incompetent person. By signing the application or petition, the applicant or petitioner, or parent or guardian certifies under penalty of perjury that the application or petition, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct.

(3) Representation. An applicant or petitioner may be represented by an attorney in the United States, as defined in $1.1(f) of this chapter, by an attorney outside the United States as defined in § 292.1(a)(6) of this chapter, or by an accredited representative as defined in $292.1(a)(4) of this chapter. A beneficiary of a petition is not a recognized party in such a proceeding. An application or petition presented in person by someone who is not the applicant or petitioner, or his or her representative as defined in this paragraph, shall be treated as if received through the mail, and the person advised that the applicant or petitioner, and his or her representative, will be notified of the decision. Where a notice of representation is submitted that is not properly signed, the application or petition will be processed as if the notice had not been submitted.

(4) Oath. Any required oath may be administered by an immigration officer or person generally authorized to administer oaths, including persons so authorized by Article 136 of the Uniform Code of Military Justice.

(5) Translation of name. If a document has been executed in an anglicized version of a name, the native form of the name may also be required.

(6) Where to file. Except as otherwise provided in this chapter, an application or petition should be filed with the INS office or Service Center with jurisdiction over the application or petition and the place of residence of the applicant or petitioner as indicated in the instructions with the respective form.

8 103.2 Applications, petitions,

and other documents. (a) Filing-(1) General. Every application, petition, appeal, motion, request, or other document submitted on the form prescribed by this chapter shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. The form must be filed with the appropriate filing fee required by $ 103.7. Except as exempted by paragraph (e) of this section, forms which require an applicant, petitioner, sponsor, beneficiary, other individual to complete Form FD258, Applicant Card, must also be filed with the service fee for fingerprinting, as required by $103.7(b)(1), for each individual who requires fingerprinting. Filing fees and fingerprinting service

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(7) Receipt date—(i) General. An application or petition received in a Service office shall be stamped to show the time and date of actual receipt and, unless otherwise specified in part 204 or part 245 of this chapter, shall be regarded properly filed when stamped, if it is properly signed and executed and the required filing fee is attached or a waiver of the filing fee is granted. An application or petition which is not properly signed or is submitted with the wrong filing fee shall be rejected as improperly filed. Rejected applications and petitions, and ones in which the check or other financial instrument used to pay the filing fee is subsequently returned as nonpayable will not retain a filing date. An application or petition taken to a local Service office for the completion of biometric information prior to filing at a Service Center shall be considered received when physically received at a Service Center.

(ii) Non-payment. If a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter shall be notified and requested to pay the filing fee and associated service charge within 14 calendar days, without extension. If the application or petition is pending and these charges are not paid within 14 days, the application or petition shall be rejected as improperly filed. If the application or petition was already approved, and these charges are not paid, the approval shall be automatically revoked because it was improperly field. If the application or petition was already denied, revoked, or abandoned, that decision will not be affected by the non-payment of the filing or fingerprinting fee. New fees will be required with any new application or petition. Any fee and service charges collected as the result of collection activities or legal action on the prior application or petition shall be used to cover the cost of the previous rejection, revocation, or other action.

(b) Evidence and processing (1) General. An applicant or petitioner must establish eligibility for a requested immigration benefit. An application or petition form must be completed as applicable and filed with any initial evidence required by regulation or by the

instructions on the form. Any evidence submitted is considered part of the relating application or petition.

(2) Submitting secondary evidence and affidavits—(i) General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.

(ii) Demonstrating that a record is not available. Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where the Service finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement.

(iii) Evidence provided with a self-petition filed by a spouse or child of abusive

a

citizen or resident. The Service will consider any credible evidence relevant to a self-petition filed by a qualified spouse or child of an abusive citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not required to, demonstrate that preferred primary or secondary evidence is unavailable. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Service.

(3) Translations. Any document containing foreign language submitted to the Service shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English.

(4) Submitting copies of documents. Application and petition forms must be submitted in the original. Forms and documents issued to support an application or petition, such as labor certifications, Form IAP-66, medical examinations, affidavits, formal consultations, and other statements, must be submitted in the original unless previously filed with the Service. When submission is required, expired Service documents must be submitted in the original, as must Service documents required to be annotated to indicate the decision. In all other instances, unless the relevant regulations or instructions specifically require that an original document be filed with an application or petition, an ordinary legible photocopy may be submitted. Original documents submitted when not required will remain a part of the record, even if the submission was not required.

(5) Request for an original document. Where a copy of a document is submitted with an application or petition, the Service may at any time require that the original document be submitted for review. If the requested original, other than one issued by the Service, is not submitted within 12 weeks, the petition or application shall be denied or revoked. There shall be no appeal from a denial or revocation based on the failure to submit an origi

nal document upon the request of the Service to substantiate a previously submitted copy. Further, an applicant or petitioner may not move to reopen or reconsider the proceeding based on the subsequent availability of the document. An original document submitted pursuant to a Service request shall be returned to the petitioner or applicant when no longer required.

(6) Withdrawal. An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted.

(7) Testimony. The Service may require the taking of testimony, and may direct any necessary investigation. When a statement is taken from and signed by a person, he or she shall, upon request, be given a copy without fee. Any allegations made subsequent to filing an application or petition which are in addition to, or in substitution for, those originally made, shall be filed in the same manner as the original application, petition, or document, and acknowledged under oath thereon.

(8) Request for evidence. If there is evidence of ineligibility in the record, an application or petition shall be denied on that basis notwithstanding any lack of required initial evidence. If the application or petition was pre-screened by the Service prior to filing and was filed even though the applicant or petitioner was informed that the required initial evidence was missing, the application or petition shall be denied for failure to contain the necessary evidence. Except as otherwise provided in this chapter, in other instances where there is no evidence of ineligibility, and initial evidence or eligibility information is missing or the Service finds that the evidence submitted either does not fully establish eligibility for the requested benefit or raises underlying questions regarding eligibility, the Service shall request the missing initial evidence, and may request additional evidence, including blood tests.

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