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In such cases, the applicant or peti- It will resume at the same point where tioner shall be given 12 weeks to re- it stopped when the Service receives spond to a request for evidence. Addi- the requested evidence or response, or tional time may not be granted. Within a request for a decision based on the this period the applicant or petitioner evidence. may:

(ii) Effect on interim benefits. Interim (i) Submit all the requested initial or benefits will not be granted based on additional evidence;

an application or petition held in sus(ii) Submit some or none of the re- pense for the submission of requested quested additional evidence and ask for initial evidence, except that the applia decision based on the record; or

cant or beneficiary will normally be al(iii) Withdraw the application or pe- lowed to remain while an application tition.

or petition to extend or obtain status (9) Request for appearance. An appli- while in the United States is pending. cant, a petitioner, a sponsor, a bene- The Service may choose to pursue ficiary, or other individual residing in other actions to seek removal of a perthe United States at the time of filing son notwithstanding the pending applian application or petition may be re- cation. Employment authorization prequired to appear for fingerprinting or viously accorded based on the same for an interview. A petitioner shall also status and employment as that rebe notified when a fingerprinting no- quested in the current application or tice or an interview notice is mailed or petition may continue uninterrupted issued to a beneficiary, sponsor, or as provided in 8 CFR 274a.12(b)(20) durother individual. The applicant, peti- ing the suspense period. tioner, sponsor, beneficiary, or other (11) Submission of evidence in response individual may appear as requested by to a Service request. All evidence subthe Service, or prior to the dates and mitted in response to a Service request times for fingerprinting or of the date must be submitted at one time. The and time of interview:

submission of only some of the re(i) The individual to be fingerprinted quested evidence will be considered a or interviewed may, for good cause, re- request for a decision based on the quest that the fingerprinting or inter- record. view be rescheduled; or

(12) Effect where evidence submitted in (ii) The applicant or petitioner may response to a request does not establish withdraw the application or petition. eligibility at the time of filing. An appli

(10) Effect of a request for initial or ad- cation or petition shall be denied where ditional evidence for fingerprinting of evidence submitted in response to a reinterview rescheduling—(i) Effect on proc- quest for initial evidence does not esessing. The priority date of a properly tablish filing eligibility at the time the filed petition shall not be affected by a application or petition was filed. An request for missing initial evidence or application or petition shall be denied request for other evidence. If an appli- where any application or petition upon cation or petition is missing required which it was based was filed subseinitial evidence, or an applicant, peti- quently. tioner, sponsor, beneficiary, or other (13) Effect of failure to respond to a reindividual who requires fingerprinting quest for evidence or appearance. If all requests that the fingerprinting ap- requested initial evidence and pointment or interview be rescheduled, quested additional evidence is not subany time period imposed on Service mitted by the required date, the appliprocessing will start over from the date cation or petition shall be considered of receipt of the required initial evi- abandoned and, accordingly, shall be dence or request for fingerprint or denied. Except as provided in $335.6 of interview rescheduling. If the Service this chapter, if an individual requested requests that the applicant or peti- to appear for fingerprinting or for an tioner submit additional evidence or interview does not appear, the Service respond to other than a request for ini- does not receive his or her request for tial evidence, any time limitation im- rescheduling by the date of the posed on the Service for processing will fingerprinting appointment or interbe suspended as of the date of request. view, or the applicant or petitioner has

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not withdrawn the application or petition, the application or petition shall be considered abandoned and, accordingly, shall be denied.

(14) Effect of request for decision. Where an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the application or petition. Failure

appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related application or petition.

(15) Effect of withdrawal or denial due to abandonment. The Service's acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under $103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new application or petition with a new fee. However, the priority or processing date of a withdrawn or abandoned application or petition may not be applied to a later application petition. Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior application or petition shall otherwise be material to the new application or petition.

(16) Inspection of evidence. An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as provided in the following paragraphs.

(i) Derogatory information unknown to petitioner or applicant. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation, rebuttal, or information presented by

or in behalf of the applicant or petitioner shall be included in the record of proceeding

(ii) Determination of statutory eligibility. A determination of statutory eligibility shall be based only on information contained in the record of proceeding which is disclosed to the applicant or petitioner, except as provided in paragraph (b)(16)(iv) of this section.

(iii) Discretionary determination. Where an application may be granted or denied in the exercise of discretion, the decision to exercise discretion favorably or unfavorably may be based in whole or in part on classified information not contained in the record and not made available to the applicant, provided the regional commissioner has determined that such information is relevant and is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security.

(iv) Classified information. An applicant or petitioner shall not be provided any information contained in the record or outside the record which is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security, unless the classifying authority has agreed in writing to such disclosure. Whenever he/she believes he/ she can do so consistently with safeguarding both the information and its source,

the

regional commissioner should direct that the applicant or petitioner be given notice of the general nature of the information and an opportunity to offer opposing evidence. The regional commissioner's authorization to use such classified information shall be made a part of the record. A decision based in whole or in part on such classified information shall state that the information is material to the decision.

(17) Verifying claimed citizenship or permanent resident status. The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States will be verified from official records of the Service. The term official records, as used herein, includes Service files, arrival manifests, arrival records, Service index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued after July 1, 1929, Permanent Resident Cards Forms AR3, AR-103, 1-151 or 1-551), passports, and reentry permits. To constitute an official record a se vice index card must bear a designated immigrant visa symbol and must have been prepared by an authorized official of the Service in the course of processing immigrant admissions or adjustments to permanent resident status. Other cards, certificates, declarations, permits, and passports must have been issued or endorsed by the Service to show admission for permanent residence. Except as otherwise provided in 8 CFR part 101, and in the absence of countervailing evidence, such official records shall be regarded as establishing lawful admission for permanent residence. If a self-petitioner filing 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 is unable to present primary or secondary evidence of the abuser's status, the Service will attempt to electronically verify the abuser's citizenship or immigration status from information contained in Service computerized records. Other Service records may also be reviewed at the discretion of the adjudicating officer. If the Service is unable to identify a record as relating to the abuser, or the record does not establish the abuser's immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.

(18) Withholding adjudication. A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation. If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the mat

ter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director's determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.

(19) Notification. An applicant or petitioner shall be sent a written decision on his or her application, petition, motion, or appeal. Where the applicant or petitioner has authorized representation pursuant to $103.2(a), that representative shall also be notified. Documents produced after an approval notice is sent, such as an alien registration card, shall be mailed directly to the applicant or petitioner.

(c) Filing of applications for adjustment of status under sections 210 and 245A of the Act, as amended. (1) The filing of an application for temporary resident status under section 245A(a) of the Act must conform to the provisions of 8245a.2 of this chapter. The filing of an application for permanent resident status under section 245A(b)(1) of the Act must conform to the provisions of $ 245a.3 of this chapter. The filing of an application for adjustment of status to that of a temporary resident under section 210(a) of the Act must conform to the provisions of $210.2 of this chapter.

(2) An application for adjustment to temporary or permanent resident status pursuant to section 245A (a) or (b)(1) or section 210(a) of the Act may be accepted on behalf of the Attorney General by designated state, local and

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community organizations as well as designated voluntary organizations and persons. Each such application shall contain a certification signed by both the alien and the preparing member of the designated organization or entity, that the applicant has approved transmittal of the application to the Service for adjudication.

(3) An application accepted by any of the designated entities shall be stamped with an endorsement as to the date of preparation and authorization for transmittal, and may be brought to the legalization office with the applicant as an application ready for adjudication. However, such application shall not be considered as complete until accepted for adjudication by and until the appropriate fee has been paid to the Immigration and Naturalization Service.

(d) Filing of petitions for adjustment of status under section 210

A of the Act, as amended. (1) The filing of a petition for temporary resident status as a Replenishment Agricultural Worker, and waivers incident to such filing, under section 210A of the Act must conform to the provisions of part 210a of this title.

(2) A petition for adjustment to temporary resident status pursuant to section 210A of the Act shall be accepted only by the Service, or by personnel employed under contract to the Service, who are under Service supervision, and are specifically designated responsibility for the initial processing of petitions and waivers. Only Service officers may make decisions with respect to the granting or denial of petitions and waivers filed under section 210A of the Act and part 210a of this title.

(3) Petitions and waivers filed with the Service pursuant to part 210a of this title shall not be considered as complete until accepted for adjudication by and until the appropriate fee has been paid to the Immigration and Naturalization Service.

(e) Fingerprinting—(1) General. Service regulations in this chapter, including the instructions to benefit applications and petitions, require certain applicants, petitioners, beneficiaries, sponsors, and other individuals to be fingerprinted on Form FD-258, Applicant Card, for the purpose of con

ducting criminal background checks. On and after December 3, 1997, the Service will accept Form FD-258, Applicant Card, only if prepared by a Service office, a registered State or local law enforcement agency designated by a cooperative agreement with the Service

provide fingerprinting services (DLEA), United States consular office at United States embassies and consulates, or a United States military installation abroad.

(2) Fingerprinting individuals residing in the United States. Beginning on December 3, 1997, for naturalization applications, and on March 29, 1998, for all other applications and petitions, applications and petitions for immigration benefits shall be filed as prescribed in this chapter, without completed Form FD-258, Applicant Card. After the filing of an application or petion, the Service will issue a notice to all individuals who require fingerprinting and who are residing in the United States, as defined in section 101(a)(38) of the Act, and request their appearance for fingerprinting at a Service office or other location designated by the Seryice, to complete Form FD-258, Applicant Card, as prescribed in paragraph (b)(9) of this section.

(3) Fingerprinting individuals residing abroad. Individuals who require fingerprinting and whose place of residence is outside of the United States, must submit a properly completed Form FD-258, Applicant Card, at the time of filing the application or petition for immigration benefits. In the case of individuals who reside abroad, a properly completed Form FD-258, APplicant Card, is one prepared by the Service, a United States consular office at a United States embassy or consulate or a United States military installation abroad. If an individual who requires fingerprinting and is residing abroad fails to submit a properly completed Form FD-258, Applicant Card, at the time of filing an application or petition, the Service will issue a notice to the individual requesting submission of a properly completed Form FD-258, Applicant Card. The applicant or petitioner will also be notified of the request for submission of a properly completed Form FD-258, Applicant Card. Failure to submit a properly completed Form FD-258, Applicant Card, in response to such a request within the time allotted in the notice will result in denial of the application or petition for failure to submit a properly completed Form 'D–258, Applicant Card. There is no appeal from denial of an application or petition for failure to submit a properly completed Form FD-258, Applicant Card. A motion to re-open an application or petition denied for failure to submit a properly completed Form FD-258, Applicant Card, will be granted only on proof that:

(i) A properly completed Form FD258, Applicant Card, was submitted at the time of filing the application or petition;

(ii) A properly completed Form FD258, Applicant Card, was submitted in response to the notice within the time allotted in the notice; or

(iii) The notice was sent to an address other than the address on the application or petition, or the notice of representation, or that the applicant or petitioner notified the Service, in writing, of a change of address or change of representation subsequent to filing and before the notice was sent and the Service's notice was not sent to the new address.

(4) Submission of service fee for fingerprinting—(i) General. The Service will charge a fee, as prescribed in $103.7(b)(1), for fingerprinting at a Service office or a registered State or local law enforcement agency designated by a cooperative agreement with the Service to provide fingerprinting services. Applications and petitions for immigration benefits shall be submitted with the service fee for fingerprinting for all individuals who require fingerprinting and who reside in the United States at the time of filing the application or petition.

(ii) Eremptions—(A) Individual residing abroad. Individuals who require fingerprinting and who reside outside of the United States at the time of filing an application or petition for immigration benefits are exempt from the requirement to submit the service fee for fingerprinting with the application or petition for immigration benefits.

(B) Asylum applicants. Asylum applicants are exempt from the requirement

to submit the service fee for fingerprinting with the application for asylum.

(iii) Insufficient service fee for fingerprinting; incorrect fees. Applications and petitions for immigration benefits received by the Service without the correct service fee for fingerprinting will not be rejected as improperly filed, pursuant to paragraph (a)(7)(i) of this section. However, the application or petition will not continue processing and the Service will not issue a notice requesting appearance for fingerprinting to the individuals who require fingerprinting until the correct service

fee

for fingerprinting has been submitted. The Service will notify the remitter of the filing fee for the application or petition of the additional amount required for the fingerprinting service fee and request submission of the correct fee. The Service will also notify the applicant or petitioner, and, when appropriate, the applicant or petitioner's representative, as defined in paragraph (a)(3) of this section, of the deficiency. Failure to submit the correct fee for fingerprinting in response to a notice of deficiency within the time allotted in the notice will result in denial of the application or petition for failure to submit the correct service fee for fingerprinting. There is no appeal from the denial of an application or petition for failure to submit the correct service fee for fingerprinting. A motion to re-open an application or petition denied for failure to submit the correct service fee for fingerprinting will be granted only on proof that:

(A) The correct service fee for fingerprinting was submitted at the time of filing the application or petition;

(B) The correct service fee for fingerprinting was submitted in response to the notice of deficiency within the time allotted in the notice; or

(C) The notice of deficiency was sent to an address other than the address on the application or petition, or the notice of representation, or that the applicant or petitioner notified the Service, in writing, of a change of address or change of representation subsequent

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