(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 designate 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 indi

vidual 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 of an official record in the records of the Service.

[32 F.R. 9623, July 4, 1967; 32 F.R. 10433, July 15, 1967, as amended at 32 F.R. 11628, Aug. 11, 1967]

(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. The following American consular officers are also authorized to approve any petition on Form I-130 when the petitioner and the beneficiary are physically present in the area over which the consular officers have jurisdiction: American consular officers assigned to visa-issuing posts in South America (except Venezuela), areas of Asia lying to the east of the western borders of Afghanistan and Pakistan (but not including Hong Kong and adjacent islands, Taiwan, Japan, Okinawa, Korea, and the Philippines), Australia, New Zealand, and Africa (excluding posts in the United Arab Republic, the Mediterranean islands, and Portuguese island possessions); 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 petition 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 classifled 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. (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 $10. 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) Member of the professions or an alien of execeptional ability in the sciences or arts. A petition to classify the status of an alien under section 203 (a) (3) of the Act shall be filed on Form I-140 by such alien or by any person on his behalf. A separate Form I-140 executed under oath or affirmation and accompanied by Form ES-575A and a fee of $10 must be submitted for each beneficiary before the petition may be accepted by the Service and considered properly filed. The petition shall be filed in the office of the Service having jurisdiction over the place in the United States where the alien intends to reside. An alien abroad who desires to submit a petition in his own behalf must execute the oath or affirmation on the petition before a Service or consular officer abroad. That officer will

furnish the address of the Service office in the United States to which the alien should send the petition. The beneficiary and the petitioner may be required, as a matter of discretion, to appear in person before an immigration or consular officer prior to the adjudication of the petition and be interrogated under oath concerning the allegation 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 the petition for lack of a certification by the Secretary of Labor pursuant to section 212(a) (14) of the Act.

(d) Aliens who will perform skilled or unskilled labor. A person, firm, or organization desiring and intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203 (a) (6) of the Act shall file a petition on Form I-140. A separate form must be submitted for each beneficiary, executed under oath or affirmation, accompanied by a fee of $10. Before it may be accepted and considered properly filed, the petition must be accompanied by Forms ES-575A executed in accordance with the instructions for completion of that form if the beneficiary is qualified for and will be engaged in an occupation currently listed in Schedule A or Schedule C, 29 CFR Part 60. Otherwise, as specified in § 204.2(g), the petition may be accepted and considered properly filed only if it is accompanied by Forms ES-575 A and B to which the certification under section 212(a) (14) of the Act has been affixed by the Secretary of Labor or his designated representative. Nothing contained in this part shall preclude an employer who desires and intends to employ an alien who is a member of the professions or a person with exceptional ability in the sciences or the arts from filing a petition for sixthpreference classification; however, any such petition shall be subject to the requirements of this paragraph and § 204.2(g). Each petition seeking to confer sixth-preference classification upon an alien shall be filed in the office of the Service having jurisdiction over the place where the alien's services are to be employed. The beneficiary and the petitioner may be required, as a matter of discretion, to appear in person before an immigration officer prior to the adju

dication of the petition 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, 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 the 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. 5117, Mar. 30, 1966; 31 F.R. 7217, May 18, 1966; 31 F.R. 10530, Aug. 5, 1966; 31 F.R. 15322, Dec. 7, 1966; 32 F.R. 852, Jan. 25, 1967] § 204.2 Documents.

(a) General. When the beneficiary is in the United States, his passport and Form I-94, if one was issued to him, shall be submitted with the petition.

(b) Evidence of U.S. citizenship-(1) Birth in the United States. A petition filed under § 204.1 (a) or (b) by a U.S. citizen whose citizenship is based on birth in the United States must be accompanied by his birth certificate; or, if his birth certificate is unobtainable, a copy of his baptismal certificate under seal of the church, showing his place of birth and a date of baptism occurring 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.

(c) 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 absence of such a record, the petitioner shall be required to establish that he is a lawful permanent resident alien by the submission of evidence such as his passport bearing a Service endorsement reflecting a lawful admission for permanant residence, his Form I-151 alien registration receipt card, or his immigrant identification card.

(d) Evidence of family relationship between petitioner and beneficiary—(1) General. A petition filed under § 204.1 (a) must be accompanied by evidence of family relationship.

(2) Petition for a spouse. If a petition is submitted on behalf of a wife or husband, it must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both wife and husband.

(3) Petition for child. If a petition is submitted by a mother on behalf of a child, regardless of the child's age, the birth certificate of the child showing the name of the mother must accompany the petition. If a petition is submitted by a father or stepparent on behalf of a child, regardless of age, a certificate of mar

riage of the parents, proof of legal termination of their prior marriages, and the birth certificate of the child must accompany the petition.

(4) Petition for a brother or sister. If a petition is submitted on behalf of a brother or sister, the birth certificate of the petitioner and the birth certificate of the beneficiary, showing a common mother, must accompany the petition. If the petition is on behalf of a brother or sister having a common father and different mothers, the marriage certificate of the petitioner's parents, and the beneficiary's parents, and proof of the legal termination of the parents' prior marriages, if any, must accompany the petition.

(5) Petition in behalf of a parent. If a petition is submitted in behalf of a mother, the petitioner's birth certificate showing the name of the mother must accompany the petition. If a petition is submitted on behalf of a father or stepparent, the petitioner's birth certificate and the marriage certificate of his parent and stepparent must accompany the petition, as well as proof of the legal termination of their prior marriages, if

any.

(6) Married women. If either the petitioner or the beneficiary is a married woman, her marriage certificate must accompany the petition. However, when the relationship between the petitioner and beneficiary is that of a mother and child, regardless of the child's age, the mother's marriage certificate need not be submitted if the mother's present married name appears on the birth certificate of the child.

(7) Relationship by adoption. If the petitioner and the beneficiary are related to each other by adoption, a certified copy of the adoption decree must accompany the petition.

(8) Blood tests. When a blood relationship is claimed, the district director may require that blood tests be conducted of the petitioner, beneficiary, and other family members. Such blood tests shall be conducted at the expense of the petitioner by the United States Public Health Service or by a qualified medical specialist designated by the district director. Refusal to submit to blood tests when required may constitute a basis for denial of the petition. When the petitioner, the beneficiary, or other family members are outside the United States, a visa petition may be approved on condition that the results of any requested

blood tests will show that the existence of the claimed relationship is not precluded. When a visa petition is approved conditionally, the names and addresses of the persons of whom blood tests are to be conducted shall be set forth by the district director in the visa petition and in the notice of approval. Upon receipt of medical advice that the blood test results preclude the existence of the claimed blood relationship between the petitioner and the beneficiary, the district director shall withdraw his conditional approval and shall reopen the visa petition proceeding.

A

(e) Evidence required to accompany petition for orphan—(1) General. petition filed on behalf of an orphan under § 204.1(b) must be accompanied by fingerprint charts on Form FD 258 of the petitioning U.S. citizen and spouse; evidence of U.S. citizenship of the petitioner as provided in paragraph (b) of this section; a certificate of marriage of the petitioner and spouse and proof of legal termination of their previous marriages, if any; proof of age of the orphan in the form of a birth certificate, or if such certificate is not available other evidence of his birth; evidence that the petitioner and spouse are able to care for the orphan properly, such as letters from employers, banks, and accountants, financial statements, copies of income-tax returns; a certified copy of the adoption decree together with certified translation, if the orphan has been lawfully adopted abroad; and evidence that the sole or surviving parent is incapable of providing for the orphan's care and has in writing irrevokably released the orphan for emigration and adoption if the orphan has only one parent. A child shall be considered as having a sole parent, his mother, when it is established that the child is illegitimate, and has not acquired a second parent within the contemplation of section 101(b)(2) of the Act. A child shall be considered as having a surviving parent when it is established that one of the child's parents is living while one is deceased, and the child has not acquired a second parent within the meaning of section 101(b) (2) of the Act. When a child who has a sole or surviving parent has been adopted abroad, the requirement for an irrevocable release in writing for the child's emigration and adoption shall be considered to have been met if the adoption decree clearly sets forth that the adoptive petitioner and spouse

reside in the United States and that the child's only parent has agreed to release the child for adoption. A child who has been unconditionally abandoned to an orphanage shall be considered as having no parents. However, a child shall not be considered as having been abandoned when he has been placed temporarily in an orphanage, if the parent or parents intend to retrieve the child, or the parent or parents are contributing or attempting contribute to the child's support, or the parent or parents otherwise exhibit that they have not terminated their parental obligations to the child.

(2) Preadoption requirements. If the orphan is to be adopted in the United States, the petitioner must submit evidence of compliance with the preadoption requirements, if any, of the State of the orphan's proposed residence, except any such requirements that cannot be complied with prior to the child's arrival in the United States.

(3) Beneficiary adopted abroad without having been seen and observed. An orphan who is adopted abroad without having been personally seen and observed by the petitioning husband and wife prior to or during the adoption proceedings shall be processed as a child coming to the United States for adoption. Before a petition in behalf of such a child is approved, the petitioner and spouse must submit a statement indicating their willingness and intent to readopt the child in the United States. Unless the Service has already ascertained from the appropriate State authority that readoption is permissible in that State, the petitioner shall be required to submit evidence in the form of a statement from the court having jurisdiction over adoption, the State department of welfare; or the attorney general of the State, indicating that readoption is permissible. As in the case of a petition for any other orphan coming to the United States for adoption, evidence of compliance with the preadoption requirements, if any, of the State of proposed residence must be submitted.

(f) Evidence of professional status or of exceptional ability in sciences or arts— (1) General. A petition seeking to classify an alien as a member of a profession or as an alien with exceptional ability in the sciences or arts within the meaning of section 203 (a) (3) of the Act must be submitted to the Service with Form ES-575A properly executed in accord