9 FAM 502.5

Special Immigrants

(CT:VISA-691;   10-09-2018)
(Office of Origin:  CA/VO/L/R)

9 fam 502.5-1  Fourth Preference Immigrant Classification - Special Immigrants - Overview

(CT:VISA-1;   11-18-2015)

A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad (see 9 FAM 502.5-3).  A labor certification is not required for any of the Certain Special Immigrants subgroups.  Special Immigrants receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.  There are many subgroups within this category.

9 fam 502.5-2  Fourth Preference Special Immigrants – Religious Workers

9 FAM 502.5-2(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-2(A)(1)  Immigration and Nationality Act

(CT:VISA-95;   03-18-2016)

INA 101(a)(27)(C) (8 U.S.C. 1101(a)(27)(C); INA 203(b)(4) (8 U.S.C. 1153(b)(4)).

9 FAM 502.5-2(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

8 CFR 204.5(m)(5); 22 CFR 42.32(d)(1).

9 FAM 502.5-2(B)  Classification Codes - Religious Worker Classifications

(CT:VISA-95;   03-18-2016)

Symbol

Class

SD1

Minister of Religion

SD2

Spouse of SD1

SD3

Child of SD1

SR1

Certain Religious Worker

SR2

Spouse of SR1

SR3

Child of SR1

9 FAM 502.5-2(C)  In General

(CT:VISA-95;   03-18-2016)

An individual may be granted an immigrant visa as a special immigrant religious worker pursuant to INA 101(a)(27)(c) and INA 203(b)(4) if:

(1)  For at least the two years immediately preceding filing of a petition with DHS the individual has been a member of a religion denomination having a bona fide non-profit religious organization in the United States; and

(2)  The individual is coming to the United States to work for a bona fide non-profit religious organization or bona fide organization affiliated with a religious denomination,  full time in a compensated position in one of the following occupations:

(a)  Solely in the vocation of a minister of that religious denomination;

(b)  A religious vocation either in a professional or nonprofessional capacity; or

(c)  A religious occupation either in a professional or nonprofessional capacity.

9 FAM 502.5-2(D)  Affiliation With Denomination Having a Bona Fide Organization in United States (Religious Workers)

(CT:VISA-95;   03-18-2016)

a. Religious Denomination, Bona Fide Organization:

(1)  DHS regulations require evidence of the bona fides in the United States of the employing organization in support of the petition, including proof of the denomination’s tax exempt status. DHS may also require evidence of the organization’s assets and methods of operations and the organization’s papers of incorporation under applicable state law in appropriate cases. Approval of the petition will therefore constitute proof of the bona fides of the U.S. organization.

(2)  DHS defines a religious denomination as having the following characteristics:

(a)  Some form of ecclesiastical government;

(b)  A recognized creed and form of worship;

(c)  A formal code of doctrine and discipline;

(d)  Religious services and ceremonies;

(e)  Established places of religious worship; and

(f)   Religious congregations; or

(g)  Comparable indicia of a bona fide religious denomination.

(3)  Salvation Army:  The Salvation Army is a religious denomination having an organization in the United States within the meaning of the INA 101(a)(27)(C). Its commissioned officers are ministers of a religious denomination within the meaning of that section.

(4)  Practitioners and Nurses of Christian Science Church:  Practitioners and nurses of the Christian Science Church (Church of Christ, Scientist) may properly be considered as ministers of religion under INA 101(a)(27)(C)Readers and lecturers do not qualify as ministers, but could qualify as an alien seeking to come in a religious vocation or occupation.  The Christian Science Church is considered a religious denomination with an organization in the United States.

b. Two-Year Member of Religious Organization:  An alien seeking entry under INA 101(a)(27)(C) must have been a member of the religious denomination having a bona fide non-profit organization in the United States for at least two years immediately preceding the time of application for admission.

c.  Two Years Carrying on Vocation or Religious Work:  DHS will be relying on the evidence submitted by the petitioner regarding the alien’s qualifications as well as those of the organization.  If the consular officer learns that the alien’s activities in the immediately preceding two years were not related to religious functions, he or she should review the activities for the two years immediately prior to visa application to evaluate whether or not the alien has been continuously carrying on the vocation of a minister or other professional or religious worker.  For example, a minister whose activities are such as to indicate engagement in activities which contribute to furtherance of the ministerial vocation, and which are not in any way inconsistent with that vocation, may be considered to have met the requirement of continuous practice as a minister.  Activities considered acceptable for fulfilling the two-year requirement include: seminary study, teaching at a religious academy, spiritual/pastoral counseling, etc.

9 FAM 502.5-2(E)  Intended Service in the United States (Religious Workers)

(CT:VISA-95;   03-18-2016)

a. Alien’s Services Needed by Religious Denomination:  Aliens applying for special immigrant status under INA 101(a)(27)(C) must demonstrate that their services are needed by a religious denomination in the United States. The following factors are relevant to whether a bona fide need for such services exists:

(1)  The number of ministers and staff currently serving the particular church (i.e., has the number diminished or increased?);

(2)  The size of the congregation (i.e., has the congregation significantly increased?);

(3)  The specific duties which the alien will be undertaking (i.e., has the church grown or diversified to the extent that additional staff is needed?);

(4)  Prior experience of the alien relating to the specific duties to be undertaken (i.e., if the petitioning church needs a youth minister, administrator, etc., does the alien have the required background?); and

(5)  Whether or not the church previously had the services of a minister or staff to perform the duties which the alien is to be undertaking, and if not, what circumstances have created a “need” for the alien’s services (i.e., an increase in the size of the congregation or additional responsibilities placed upon the current minister of staff).

b. Alien Entering United States Solely to Carry Out Ministerial Vocation or Other Religious Work:  Aliens seeking special immigrant classification under INA 101(a)(27)(C) must demonstrate that they will be entering the United States to perform duties associated with a religious occupation or vocation.

(1)  Ministers of Religion:  Ordination of ministers chiefly involves the investment of the individual with ministerial or sacerdotal functions, or the conferral of holy orders upon the individual.  If the religion does not have formal ordination procedures, there must be other evidence that the individual has authorization to conduct religious worship and perform other services usually performed by members of the clergy.  In all cases, there must be a reasonable connection between the activities performed and the religious calling of the minister.  The term does not include a lay preacher not authorized to perform such duties.

(2)  Deacon May Qualify:  A deacon of any recognized religious sect or denomination may be considered to be a minister of religion within the meaning of INA 101(a)(27)(C) when the following conditions are present:

(a)  Ordination or equivalent form of authorization has taken place which distinguishes the clerics from the laity;

(b)  Ordination or equivalent form of authorization has conferred the power of leading a congregation and preaching;

(c)  Ordination or equivalent form of authorization has conferred the power to administer the sacraments, baptism, and communion or their equivalents; and

(d)  Ordination or equivalent form of authorization has conferred the power of giving benediction.

(3)  Ordained Buddhist Monk:

(a)  Since the term “ordained minister” does not adequately translate into Buddhist terminology, the use of “ordained minister” within the Buddhist doctrine frequently will be found to have different meanings depending on the context in which it is used.  The term also may apply to different levels of responsibility and participation within the faith.  The ceremony conferring monkhood status in the Buddhist religion is generally recognized as the equivalent of ordination.

(b)  Useful documentation for establishing entitlement to status might include determinations by directors and senior monks of monasteries which verify that the applicant has knowledge and skills which enable him to perform Buddhist rituals and explain Buddhist beliefs independently, and that the applicant has a demonstrated work record or established reputation as an active Buddhist monk.  In reviewing letters which purport to confirm an individual’s credentials, consular officers should take into consideration the endorsing temple’s or monastery’s size and significance.  The number of senior officials, directors, monks, and the size of the congregation are ancillary elements to be weighed in establishing a Buddhist monk’s entitlement to special immigrant status under INA 101(a)(27)(C).

(4)  Professional Religious Workers: 

(a)  With respect to religious workers, DHS regulation 8 CFR 204.5(m) says:  “Religious worker means an individual engaged in and, according to the denomination’s standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.”

(b)  House Report No. 101-723 defines Category II religious workers as those in “occupations such as teachers.” 

(c)  DHS regulation 8 CFR 204.5(m) defines religious vocation and religious occupations as follows: 

(i)     “Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life.  The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religions.  Examples of individuals practicing religious vocations include, but are not limited to nuns, monks, and religious brothers and sisters.”

(ii)    “Religious occupation means an occupation that meets all of the following requirements:

·         The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination.

·         The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination.

·         The duties do not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible.

·         Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incidental to status.”

c.  Petitioning Church Capable of Compensating Alien Ensuring Supplemental Employment Not Likely:  To assure that an applicant will enter the United States solely for the purpose of carrying on a religious vocation, particularly in smaller churches, DHS requires evidence such as the following:

(1)  Bank letters;

(2)  Recent audits;

(3)  Church membership figures; and/or

(4)  The number of ministers and staff currently receiving compensation, etc.

9 FAM 502.5-2(F)  Spouse or Child of Religious Worker

(CT:VISA-383;   06-15-2017)

a. Accompanying or Following-to-Join Spouses and Children:

    Accompanying or following-to-join spouses and children of a fourth preference alien who has the status of special immigrant as a minister of religion or religious worker may be granted derivative status.  A spouse or child acquired subsequent to visa issuance but prior to entering the United States, or a child born of a marriage which existed at the time of the principal alien’s admission to the United States, is entitled to employment-based fourth preference status.

b. Defining “Spouse” and “Child”:  See 9 FAM 102.8, Family-Based Relationships Definitions.

9 FAM 502.5-2(G)  Nonministers

(CT:VISA-383;   06-15-2017)

IVs for individuals in a religious vocation or occupation described in 9 FAM 502.5-2(C) paragraph (2)(b) or (c) (and their accompanying or following-to-join spouse and children) must be issued and used before midnight on September 29, 2017.  You may not issue an IV in the SR1, SR2, or SR3 classification beyond this date.  Before issuing an IV to an individual in one of these classifications, you should advise them of the deadline and ensure that they have travel plans to enter the United States before midnight on September 29, 2017.  This restriction does not impact ministers described in 9 FAM 502.5-2(C) paragraph (2)(a) and accompanying relatives.

9 fam 502.5-3  fourth preference special immigrants - certain u.s. government employees

9 FAM 502.5-3(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-3(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)); INA 101(a)(38) (8 U.S.C. 1101(a)(38)); INA 203(b)(4) (8 U.S.C. 1153(b)(4)); INA 203(d) (8 U.S.C. 1153(d)).

9 FAM 502.5-3(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.32(d)(2)(i); 22 CFR 42.32(d)(2)(vii); 5 CFR 8.3.

9 FAM 502.5-3(A)(3)  United States Code

(CT:VISA-1;   11-18-2015)

22 U.S.C. 3943; 22 U.S.C. 2669(c), 22 U.S.C. 2669(n).

9 FAM 502.5-3(A)(4)  Public Laws

(CT:VISA-1;   11-18-2015)

Foreign Service Act, Public Law 96-465, sec. 303; Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, sec. 201); Immigration Act of 1990, Public Law 101–649, sec. 201.

9 FAM 502.5-3(B)  Determining U.S. Government Service Abroad

9 FAM 502.5-3(B)(1)  Defining “Employee” (U.S. Government Employee Special Immigrant)

(CT:VISA-383;   06-15-2017)

a. Employees:  To qualify as a special immigrant U.S. government employee under INA 101(a)(27)(D), the employee must generally be hired under:

(1)  A direct-hire appointment (Section 303 of the Foreign Service Act, 22 U.S.C. 3943; 5 CFR 8.3);

(2)  A Department of State personal services agreement (PSA) or personal services contract (PSC) authorities (22 U.S.C. 2669(c) and (n)); or

(3)  An employing agency’s specific PSC or PSA authority, if that agency recognizes individuals hired under its authority as employees.  (See 3 FAM 7000.)  An alien who is the employee of and hired through a foreign government also may qualify for special immigrant status, provided that the alien is or was in a bona fide employer-employee relationship with a U.S. government department or agency.  (See 9 FAM 502.5-3(C)(3).)

b. Employee Service in Other Agencies:  If part of an employee's service has been for a department or agency of the U.S. government other than the Department of State, this service must be established from the official records of the agency.

c.  Peace Corps Personal Services Contract (PSC):  As of November 21, 2011, the date that the Kate Puzey Peace Corps Volunteer Protection Act of 2011, Public Law 112-57, was enacted, Peace Corps PSC employees are considered U.S. government employees for purposes of SE-1 special immigrant status.  Time worked as a Peace Corps PSC prior to November 21, 2011 does not count toward such status. 

d. U.S. Armed Forces Service:  An alien serving in the U.S. Armed Forces abroad is considered to be “an employee of the U.S. government abroad.”

e. Employment As or With Private Contractor; Foreign Government Employees:

(1)  Personal Services Agreement or Contract:  Employees under a personal services agreement or personal services contract with the U.S. government qualify as U.S. government employees for purposes of a special immigrant visa.  The distinguishing feature of a personal services agreement or contract is that the employee contracts directly with an agency or department of the U.S. government as opposed to being hired by and paid through a contractor whose job is to provide a service or supply a specified number of employees to a U.S. agency or department.  Therefore, if an employee is hired by and paid through a contractor or an independent grantee or licensee providing services to or on behalf of the U.S. government, he or she generally does not qualify as a U.S. government employee within the meaning of INA 101(a)(27)(D).  If employed directly by the U.S. government, the applicant would qualify for a special immigrant "SE-1" recommendation.  Note that applicants to the Iraq and Afghan Special Immigrant Visa programs must meet different requirements, discussed in 9 FAM 502.5-12.

(2)  Purchase Orders:  The Department makes no distinction between those persons hired under purchase orders and those persons employed under personal services agreements/contracts.  Both must be paid by U.S. government funds, and not paid indirectly by a company to perform services for the U.S. government.

(3)  Employee of Foreign Government:  Where a foreign government requires that it or one of its agencies be the technical employer of some or all of its nationals who work for the U.S. government in that country, an alien may qualify for special immigrant status, provided that the alien was in a bona fide employer-employee relationship with a U.S. government department or agency.  In assessing whether an employer-employee relationship existed, factors such as the following will be considered:  the department's or agency’s right to control the manner and means by which the alien did the work; the source of the equipment and other materials needed for the alien to accomplish the work; the location of the work; the duration of the relationship between the alien and the department or agency; whether the department had the right to assign additional projects to the alien; the extent of the department's or agency’s discretion over when and how long the alien worked; the method of payment; and whether the work was part of the regular work of the department or agency.

f.  Employees of U.S. Employee Recreation Associations: Employees of a U.S. employee recreation association, like all SIV applicants under this subsection, must meet the definition of “employee” described in 9 FAM 502.5-3(B)(1) paragraph a above.  Employment under a contract with the employee association and not directly with the U.S. government will not be counted towards the 15-year statutory minimum length of service for SIV purposes, pursuant to INA 101(a)(27)(D)In evaluating the service of an SIV applicant who worked with an employee association, relevant employment contracts must be reviewed carefully.  Seek guidance from CA/VO/L as needed.  All relevant employment information must be included in the AO request narrative.  Note that applicants to the Iraq and Afghan Special Immigrant Visa programs must meet different requirements, discussed in 9 FAM 502.5-12.

g. Domestic Staff:  Domestic staff who are compensated under official residence expense (ORE) funds and other domestic staff for U.S. government employees assigned to missions overseas are neither federal employees nor employees of the U.S. mission.  They are employees of the individual(s) in whose home they work. The fact that they may be compensated under ORE funds does not change the fact that they are employed by the individual and not the U.S. government.  Such employees do not qualify for special immigrant status.

9 FAM 502.5-3(B)(2)  U.S. Government Service Abroad (U.S. Government Employee Special Immigrant)

(CT:VISA-159;   08-18-2016)

a. Abroad:  The term “abroad” as defined in INA 101(a)(38) refers to any part of the world outside the United States.

b. Employment in Canal Zone:  An employee of the former administration of the Canal Zone may be considered for the benefits of INA 101(a)(27)(D) since the Canal Zone is not defined as part of the United States.

c.  Special Immigrant Status for American Institute in Taiwan Employees:  Section 201 of Public Law 103-416 amended INA 101(a)(27)(D) to permit both present and former employees of the American Institute in Taiwan (AIT) to apply for special immigrant status.  An employee's service before and after the founding of AIT is counted toward the minimum 15 years of service requirement.

9 FAM 502.5-3(B)(3)  Spouses and Children (U.S. Government Employee Special Immigrant)

(CT:VISA-159;   08-18-2016)

Although INA 101(a)(27)(D) refers to an employee or former employee and "accompanying" spouses and children, INA 203(d), relating to immediate family members of all preference immigrants, grants derivative status and priority dates to spouses and children who are "accompanying or following-to-join."  Spouses and children of U.S. government employees accorded fourth preference status are, therefore, no longer required to be accompanying but also may follow-to-join the principal alien.

9 FAM 502.5-3(C)  Acquisition of U.S. Government Employee Special Immigrant Status – Process

9 FAM 502.5-3(C)(1)  Two-Step Acquisition of U.S. Government Employee Special Immigrant Status

(CT:VISA-691;   10-09-2018)

As a result of the Immigration Act of 1990, this class, like most other special immigrant classes described in INA 101(a)(27), is classified under the employment-based fourth preference.  Unlike the other such classes, however, the acquisition of special immigrant status under INA 101(a)(27)(D) and fourth preference classification requires two sequential steps, prior to visa issuance, rather than the one-step process associated with other categories.

(1) Step One – Status as U.S. Government Employee Special Immigrant:  The first step is acquiring special immigrant status.  The basic statutory requirements for special immigrant status under INA 101(a)(27)(D) are set forth in 9 FAM 502.5-3(B).

(a)  Principal Officer’s Recommendation:  For an applicant to acquire SE-1 special immigrant status, his or her principal officer must recommend the granting of special immigrant status to the employee or former employee based on exceptional circumstances, and the Secretary of State must find it in the national interest to approve the recommendation.  There is no specified form for such recommendation but the recommendation must include the elements itemized in 9 FAM 502.5-3(C)(3) paragraph b.

(b)  Supporting Evidence:  CA/VO/L determines each case upon its individual merits.  In determining whether an alien meets the "exceptional circumstances" requirement, CA/VO/L uses the standards cited in 9 FAM 502.5-3(C)(2) paragraph d.  Consequently, post must identify and document specific circumstances of an alien’s case that establish entitlement to status.  While a recommendation letter from a supervisor may be helpful in establishing “exceptional circumstances,” it is not required, and applicants who cannot secure such a letter may still demonstrate eligibility with other evidence.  It also is not required that the principal officer or SIV committee have personal knowledge of the applicant; depending on the circumstances of the case, a positive recommendation could be made solely from information in the applicant’s HR file.  Based on the evidence available, post must submit a detailed and specific AO request narrative that clearly relates to the factors cited in 9 FAM 502.5-3(C)(2), and should avoid general descriptions of the alien's service history.  Supporting evidence should be submitted with the initial AO request.

(c)  Department Decision:  If the evidence fulfills the requirements of the law and CA/VO/L determines that granting special immigrant status is in the national interest, CA/VO/L will notify post of the approval of the recommendation by AO via the IVO system.

(2)  Step Two – Classification Under INA 203(b)(4) (U.S. Government Employee Special Immigrant)

(a)  The second step is acquiring status under INA 203(b)(4).  Classification as an employment-based fourth preference immigrant requires the filing of a petition to accord such status.  Unlike aliens in the other special immigrant classes, whose petitions must be filed with DHS, U.S. government employee special immigrants under INA 101(a)(27)(D) must file Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, at a consular office (see 9 FAM 502.5-3(C)(1) paragraph (3) below).

(b)  The applicant may not file such a petition, however, until he or she has been notified that the Secretary of State approved special immigrant status for him or her. (See 9 FAM 502.5-3(C)(1) paragraph (1)(c) above.)

(3)  Petitions (U.S. Government Employee Special Immigrant):

(a)  Fees:  Although the Secretary of State is authorized to establish a fee for the filing of a petition for special immigrant status as a U.S. government employee, no fee has been established.  The fee for adjudicating a special immigrant visa application as a U.S. government employee is found in the Schedule of Fees (22 CFR 22.1) under sections 32(c) and 32(d).

(b)  Establishing Priority Date:  The priority date of a petition filed by a special immigrant government employee is the date his or her Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, is properly filed with the consular officer.

(c)  Delegated Authority to Approve Petitions: 

(i)     Authority to approve petitions for INA 203(b)(4) classification on behalf of the Secretary of State has been delegated to consular officers under 22 CFR 42.32(d)(2)(vii).  The bases for approval are that the alien has:

·         Been accorded status as a special immigrant under INA 101(a)(27)(D) prior to filing the petition; and

·         Filed the petition within one year of acquiring such status. 

(ii)    If all of the above factors are present, the consular officer has no basis for denial of the petition and may not do so. If any of those factors is not present (e.g., the petition was not filed in a timely fashion), the consular officer must submit an AO request to CA/VO/L.  (See 9 FAM 502.5-3(C)(2) paragraph e(3) regarding extensions of validity.)

(d)  CA/VO/L Function in U.S. Government Employee Special Immigrant Cases:

(i)     Any inquiry of a general nature regarding special immigrant classification should be directed to CA/VO/L as a request for an AO.

(ii)    CA/VO/L acts on behalf of the Secretary of State in approving the principal officer’s recommendation that an alien be granted status as a special immigrant and determining that it is in the national interest to grant such status.

9 FAM 502.5-3(C)(2)  Approval Standards for U.S. Government Employee Special Immigrant Status under INA 101(a)(27)(D)

(CT:VISA-383;   06-15-2017)

a. Defining “Honorably Retired”:  A former employee of the U.S. government abroad seeking classification under INA 101(a)(27)(D) must establish that he or she is “honorably retired” as the term is used in the statute.  An employee, whose termination is a result of reduction-in-force, separation due to age, voluntary retirement, or resignation for personal reasons, can be considered “honorably retired". Separation not within the meaning of “honorably retired” would involve forced or requested removal for cause or a resignation aimed at forestalling such removal.

b. Defining “Faithful Service”:  An alien seeking classification under INA 101(a)(27)(D) must have performed faithfully in the position held.  The principal officer has primary responsibility for determining whether the alien’s service meets this requirement.  A record of disciplinary actions that have been taken against the employee does not automatically disqualify the employee.  The principal officer is to assess the importance of any such disciplinary actions in light of:

(1)  The gravity of the reasons for the disciplinary action; and

(2)  Whether the record as a whole, notwithstanding existing disciplinary actions, is one of faithful service.

c.  Years of U.S. Government Service:  An alien must have been employed for a total of at least 15 full-time years in the service of the U.S. government abroad.

(1)  Full-Time Service:  Although the total employment period must equal at least 15 years of full-time service, the employee need not have worked full-time throughout the period.  For example, if the employee worked full-time for 10 years and half-time for at least 10 more, that equivalent of 15 years of full-time employment would qualify the employee for consideration.

(2)  Continuity:  The employee’s period of service need not have been continuous.  For example, if an alien was employed for nine years, left for a period of time, and later returned to U.S. government service for six or more years, this would meet the 15-year requirement.

(3)  Where and for Whom Worked Irrelevant:  The location of the employment does not matter as long as it meets the definition of abroad.  Similarly, it does not matter if the employment was with different agencies, provided that it all meets the definition of U.S. government employment.

d. “Exceptional Circumstances” Requirement:

(1)  The principal officer's recommendation that an alien be granted special immigrant status under INA 101(a)(27)(D) must be made in “exceptional circumstances.”  The legislative history of this provision does not indicate specifically what such “exceptional circumstances” might be.  However, Congress clearly did not intend that an alien be granted the benefits of INA 101(a)(27)(D) simply as recognition for the requisite years of service.

(2)  The following categories represent longstanding criteria used to determine whether there were “exceptional circumstances” present in an employee’s case.  In preparing recommendations to the Department, posts must describe in the AO request text exceptional circumstances that met the below criteria.  Recommendations containing only general statements or anecdotes  that do not detail clearly the specifics of how the employee meets one or more of the following criteria will not normally satisfy the “exceptional circumstances” requirement and will be returned to post for further consideration.  It is important that the AO request narrative strongly indicates that there were “exceptional circumstances” present in an employee’s case and describes the circumstances in full detail.

(3)  Categories of “Exceptional Circumstances”:  “Exceptional circumstances” fall broadly within the three categories below.  Cases falling under the first category (a) likely will be more of an objective nature than categories (b) and (c).  Category (b) will be more objectively oriented than category (c).

(a)  “Exceptional Circumstances” of a Prima Facie Nature:  The following factors are illustrative of situations in which an employee’s service with the U.S. government generally will be deemed to have “exceptional circumstances."  Note that employees in the following situations also must meet the other requirements for SIV status, including the qualifying employment relationship and the 15-year statutory minimum length of “faithful service":

(i)     Relations between the alien employee’s country of nationality and the United States have been severed;

(ii)    The country in which the alien employee was employed and the United States have severed diplomatic relations;

(iii)    The country in which the alien employee was employed and the United States have strained relations and in which the employee may be subjected to persecution by the local government merely because of association with the U.S. government, or where the circumstances are such that the employee may be pressured to divulge information available to him or her which would be contrary to U.S. national interests; and/or

(iv)   The alien was hired as an employee at the Consulate General at Hong Kong on or before July 1, 1999. (See also 99 State 124186.)

(b)  Cases that Strongly Merit Consideration of a Finding of “Exceptional Circumstance”:  In some cases, an employee has in the course of “faithful service” fulfilled responsibilities or rendered service so far beyond the call of duty that some form of recognition is merited. If circumstances such as those mentioned below are present in a case, the AO request must address the circumstances in detail.  Circumstances such as the following definitely would meet the "exceptional circumstances" requirement:

(i)     The employee has performed faithful and excellent service to the U.S. government, and it is believed that continued service to the U.S. government might endanger the life of the employee; or

(ii)    The employee has, in the course of faithful service, fulfilled responsibilities or given service in a manner that approaches the heroic.  Obvious examples are prevention of a physical attack on a U.S. official or citizen at the risk of an employee’s own life; cumulative TDY service of at least six months in Iraq or Afghanistan; or protection of U.S. property in time of war, uprising, natural disaster, or other grave local disturbance.  All LE staff TDY time served in Afghanistan and Iraq may be considered as part of “exceptional circumstances” required for an SIV.

(c)  Other “Exceptional Circumstances” Cases:  Exceptional circumstances can encompass less spectacular activities than those referred to in 9 FAM 502.5-3(C)(2) paragraph d(3)(b) above.  It is not necessary for such an employee to have risked his or her life in the line of duty or to have worked for more than 15 years to qualify for consideration under this section.  The following factors may, individually or in combination, support a determination of “exceptional circumstances”:

(i)     Employees who have performed faithful and excellent service to the U.S. government for a period substantially exceeding the 15-year statutory minimum.  Particular consideration will be given to cases involving the excellent service of an employee with 20 or more years of employment with the U.S. government.;

(ii)    The employee has been recognized with multiple individual awards listed in 3 FAM 4820 or 4830; however, a single award in those categories in recognition of particularly exceptional service could support a finding of exceptional circumstances.  Awards may be a helpful way to identify and document that an employee’s service to the U.S. government has been particularly valuable and worthy of an SIV.  Bear in mind that the quality of service reflected by the award, rather than the award itself, is what is relevant.  A nomination that relies upon any awards to show “exceptional circumstances” must include a detailed description in the AO request text of the circumstances leading to the employee’s nomination for the award, as well as the award’s citation.  Recognition Awards listed in 3 FAM 4840 provide only limited evidence of "exceptional circumstances," although the significance of such awards is increased if it is apparent that there is a pattern of sustained high performance.  Awards granted on a group basis generally will be given little weight, because such awards have limited utility in establishing whether the recipients were exceptional individually. If an award is not listed in 3 FAM 4820 or 3 FAM 4830, including another agency’s award, either post’s Human Resources Office or the Department’s Bureau of Human Resources must determine whether the award is equivalent to the Department’s Honor or Annual awards;

(iii)    The employee has (or has had) high visibility in a sensitive position, and the employee’s performance as a representative of the U.S. government in contacts with host government entities and other organizations has brought great credit to the agency by which employed;

(iv)   The employee's position with the U.S. government requires control over key aspects of the operations or overall functioning of a Foreign Service post.  As an example, control over the finances of a post would be a favorable consideration.  We will give particular consideration to an employee whose performance has resulted in substantial monetary savings for the U.S. Government or has yielded other significant benefits;

(v)    The employee has, apart from performance of official duties, rendered valuable services and assistance to the U.S. community at post, including activities undertaken after termination of the employee’s official employment relationship with the U.S. government;

(vi)   The employee has provided faithful and excellent service for an extended time in a responsible position in a country foreign to that employee, has thereby lost economic and social ties in the home country, and thus, might find it extremely difficult to be at ease in either the country of service or the home country after retiring, or virtually impossible to find suitable employment if desired.

(4)  The principal officer's recommendation that the employee or retired employee be granted special immigrant status under exceptional circumstances must be based on:

(a)  Official records to establish the period of time served with the U.S. government;

(b)  Documented evidence of “exceptional circumstances”; and

(c)  Assessment of the overall picture of the employee’s performance as illustrated in the personnel file by such items as evaluation reports, reprimands, awards, etc.  It is not required that the principal officer or SIV committee have personal knowledge of the applicant; depending on the circumstances of the case, a positive recommendation could be made solely from information in the applicant’s personnel file.

e. Requiring Immediate Intent to Immigrate: 

(1)  Special immigrant status was not designed for use as an “insurance policy” to protect an alien against the possibility of political or economic vicissitudes in the future.  Nor was it the intent of Congress that the principal alien obtain special immigrant status solely to facilitate the entry of dependents into the United States when it is the principal alien’s intent to return overseas to resume employment with the U.S. government.  For these reasons, the regulations in 22 CFR 42.32(d)(2)(i)(A) limit the validity of special immigrant status to one year and that of the petition to six months.  Generally, a post should refrain from submitting a recommendation for special immigrant status to the Department until such a time as the employee has:

(a)  Established an intention to resign the position being held; and

(b)  Demonstrated an intention to immigrate to the United States within a designated period of time.

(2)  Certification of Active Intent to Pursue Immigrant Visa Application:  In the text of the AO request, the principal officer must certify that:

(a)  The employee being recommended is prepared to pursue an immigrant visa application within one year of the Department’s notification to the post of approval of special immigrant status; and

(b)  The employee intends permanent separation from U.S. government employment abroad no later than the date of departure for the United States following issuance of an immigrant visa.

(3)  Unanticipated Delays in Departure:  We recognize that there may be situations in which personal circumstances or local conditions at some posts may necessitate a delay in the alien’s departure in compliance with the regulations and above guidance.  If the principal officer concludes that circumstances in a particular case are such that an extension of the validity of SIV status or of the petition would be in the national interest, he or she is to state this in a new AO request and recommend an extension.  In reviewing an extension request for a previously approved case, keep in mind that this employee’s immigration to the United States already has been determined to be in the national interest. 

(4)  Effect of Numerical Limits:

      We also recognize that the imposition of a numerical limit on fourth preference special immigrants might prompt concerns about acquiring as early a priority date as possible, despite the regulations and the employee’s travel plans.  With respect to applicants from oversubscribed countries, the time limit on petition validity does not commence until a visa number becomes available.  Principal officers may take this into account in submitting their recommendations.

(5)  Employees of Hong Kong Consulate General on or Before July 1, 1999:

(a)  A special immigrant employee of the Consulate General at Hong Kong, hired on or before July 1, 1999, is not required to establish immediate intent to immigrate.  Employees of the Hong Kong Consulate General who received or were approved for special immigrant status before July 1, 1999, also may continue employment.

(b)  Special immigrants exempted from the "immediate intent to immigrate" requirement, however, must be re-checked and re-approved for status before the special immigrant visa can be issued.

9 FAM 502.5-3(C)(3)  Principal Officer’s Recommendation (U.S. Government Employee Special Immigrant)

(CT:VISA-341;   04-13-2017)

a. Principal Officer:  The “principal officer of a Foreign Service establishment” must make the recommendation to the Secretary of State for favorable action under INA 101(a)(27)(D).  This term embraces not only principal officers or acting principal officers of consular posts and chiefs or acting chiefs of diplomatic missions but also heads of field offices of other U.S. government departments or agencies abroad. 

b. Form of Submission:  The post must submit the recommendation and a summary of the evidence to support the recommendation to CA/VO/L via an AO request sent through the IVO system.  Note that posts will have to create a case in the IVO system in order to submit the AO request.  The principal officer must sign the recommendation and it must include:

(1)  The name and date and place of birth of the principal alien and any immediate family accompanying or following to join;

(2)  The length of time the alien has been employed by the U.S. government abroad and the agency or agencies concerned, with appropriate employment dates and places;

(3)  The present employment status of the alien and, if not employed, the reasons and circumstances surrounding the alien’s departure from the last U.S. government position;

(4)  Certification of the employee's intent to pursue an immigrant visa application within one year of the Department’s notification to the post of approval of special immigrant status; and that the employee intends permanent separation from U.S. Government employment abroad no later than the date of departure for the United States following issuance of an immigrant visa; and

(5)  The principal officer’s recommendation.

9 FAM 502.5-3(C)(4)  Pre-Screening Panels (U.S. Government Employee Special Immigrant)

(CT:VISA-159;   08-18-2016)

a. Establishing Pre-Screening Panels:  Various posts instituted interagency pre-screening panels to consider cases of employees desiring special immigrant status under INA 101(a)(27)(D).  These panels pre-screen cases prior to submission to the principal officer for a decision whether to recommend to the Department that special immigrant status be authorized. The Department endorses this approach for posts that find them useful, particularly large posts where various U.S. government agencies employ foreign nationals.  However, a pre-screening panel is not required.

b. Functions of Pre-Screening Panels:  Participation by representatives of various agencies in the deliberations of the pre-screening panels ensures that their views are given weight.  An advantage for posts using pre-screening panels is the uniformity of approach that is afforded by panel assessment of the statutorily required “exceptional circumstances” dimension in cases of all employees seeking immigrant status under INA 101(a)(27)(D).  A pre-screening panel’s preliminary determination that such circumstances exist in an employee’s case, along with the panel’s verification that the other requirements discussed in the preceding interpretive note also have been met, can be of great assistance to a principal officer in deciding whether to recommend that the employee be granted special immigrant status.  While the principal officer retains ultimate authority to make recommendations to the Department for special immigrant status and therefore cannot be bound by the decision of a pre-screening panel, these recommendations would normally carry great weight.  This ensures that employees of all agencies are treated equally.

c.  Notation of Review by Pre-Screening Panels:  Any post wishing to institute a pre-screening panel system may do so without prior Departmental approval. However, a post seeking Departmental authorization of special immigrant status for an employee whose case has been reviewed by a pre-screening panel must so indicate in its recommendation and must specify whether the pre-screening panel recommended for or against submission.

9 fam 502.5-4  fourth preference special immigrants - panama canal employees

9 FAM 502.5-4(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-4(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(E)-(G) (8 U.S.C. 1101(a)(27)(E)-(G)).

9 FAM 502.5-4(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.32(d)(3).

9 FAM 502.5-4(A)(3)  Public Law

(CT:VISA-1;   11-18-2015)

Panama Canal Act of 1979, Public Law 96-70, sec. 3201.

9 FAM 502.5-4(B)  Panama Canal Employees

(CT:VISA-1;   11-18-2015)

a. Eligibility for Qualification as Special Immigrant:  INA 101(a)(27)(E), INA 101(a)(27)(F), and INA 101(a)(27)(G) state that the following classes of individuals may be entitled to special immigrant status:

(1)  INA 101(a)(27)(E):  An immigrant, and his accompanying spouse and children, who is or has been an employee of the Panama Canal Company or Canal Zone Government before the date on which the Panama Canal Treaty of 1977 (as described in section 3 (a)(1) of the Panama Canal Act of 1979) enters into force, who was resident in the Canal Zone on the effective date of the exchange of instruments of ratification of such Treaty, and who has performed faithful service as such an employee for one year or more;

(2)  INA 101(a)(27)(F):  An immigrant, and his accompanying spouse and children, who is a Panamanian national and:

(a)  Who, before the date on which such Panama Canal Treaty of 1977 enters into force, has been honorably retired from United States Government employment in the Canal Zone with a total of 15 years or more of faithful service, or

(b)  Who, on the date on which such Treaty enters into force, has been employed by the United States Government in the Canal Zone with a total of 15 years or more of faithful service and who subsequently is honorably retired from such employment or continues to be employed by the United States Government in an area of the former Canal Zone;

(3)  INA 101(a)(27)(G):  An immigrant, and his accompanying spouse and children, who was an employee of the Panama Canal Company or Canal Zone Government on the effective date of the exchange of instruments of ratification of such Panama Canal Treaty of 1977, who has performed faithful service for five years or more as such an employee, and whose personal safety, or the personal safety of whose spouse or children, as a direct result of such Treaty, is reasonably placed in danger because of the special nature of any of that employment.

b. Panama Canal Treaty Special Immigrants May Also Qualify under INA 101(a)(27)(D):  An alien applying for status under INA 101(a)(27)(E), (F), or (G) may also qualify as a special immigrant under INA 101(a)(27)(D). See 9 FAM 502.5-3(B)(2).

c.  Employment of “Special Nature”:  Although not specifically stated in the Panama Canal Act of 1979, the words “special nature of any of that employment” in INA 101(a)(27)(G) are intended to pertain to aliens employed as police, firemen, or security guards by the Canal Company or the Canal Zone Government.

d. Posts Outside Panama to Obtain Opinion of Department and Embassy Before Final Processing:  In view of the possible difficulties in verifying the periods and nature of employment and residence, posts other than Embassy Panama receiving applications from aliens seeking benefits under INA 101(a)(27)(E), (F), or (G) should obtain the opinion of the Embassy at Panama City and the Department of State, Advisory Opinions Division (CA/VO/L/A) before taking final action.

9 FAM 502.5-5  Fourth Preference Special Immigrants – Certain foreign medical graduates

9 FAM 502.5-5(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-5(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(H) (8 U.S.C. 1101(a)(27)(H)).

9 FAM 502.5-5(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 40.1(a); 22 CFR 42.31(d)(4).

9 FAM 502.5-5(B)  Foreign Medical Graduates in the United States

(CT:VISA-159;   08-18-2016)

INA 101(a)(27)(H) permits certain alien physicians and the accompanying spouse and children to adjust status as special immigrants without regard to labor certification requirements or the restrictions of INA 245(c) concerning previous unauthorized employment, provided the alien physicians were fully and permanently licensed to practice medicine in a State and practicing medicine in a State on January 9, 1978, had entered the United States as nonimmigrant temporary workers or exchange visitors before January 10, 1978, and have been thereafter continuously in the United States in the practice or study of medicine. 

9 FAM 502.5-5(C)  Spouse and Child

(CT:VISA-159;   08-18-2016)

a. In General: Most, if not all eligible physician beneficiaries have already taken advantage of this provision.  There may, however, still be a few spouses and children who have not yet accompanied the principal to the United States and may still wish to do so.

b. Processing: The spouse or child of such an adjustee cannot be issued a derivative special immigrant visa but must be the beneficiary of a petition to accord status under INA 101(a)(27)(H) as an “accompanying” spouse or child.  Thus, it will be necessary for the resident alien spouse or child to follow the procedure in 22 CFR 40.1(a) to confer such status. The petition may be filed by either the principal resident alien or the beneficiary.

c.  Accompanying Spouse and Children:  The definition of “accompanying” in 22 CFR 40.1(a) includes a requirement for the issuance of an immigrant visa within six months of the adjustment, or registration, of the principal alien.  The Department deems this requirement to have been met if the petition is filed during that six-month period.

9 FAM 502.5-6  Fourth Preference Special Immigrants – Certain International Organization and NATO Civilian Employees

9 FAM 502.5-6(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-6(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(I) (8 U.S.C. 1101(a)(27)(I)); INA 101(a)(27)(L) (8 U.S.C. 1101(a)(27)(L)); INA 101(a)(33) (8 U.S.C. 1101(a)(33)).

9 FAM 502.5-6(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.32(d)(5).

9 FAM 502.5-6(A)(3)  Public Laws

(CT:VISA-1;   11-18-2015)

Visa Waiver Permanent Program Act, Public Law 106-396, sec. 301.

9 FAM 502.5-6(B)  Certain International Organization and NATO Civilian Employees

(CT:VISA-383;   06-15-2017)

a. Qualifying for Special Immigrant Status as Employee of Certain International Organizations or NATO:

(1)  Specific Criteria to Establish Entitlement to Special Immigrant Status under INA(a)(27)(I) or (L):  The Department of Homeland Security (DHS) requires evidence that the petition beneficiary (who may also be the petitioner) is entitled to special immigrant status under INA 101(a)(27)(I) or INA 101(a)(27)(L) in connection with adjudicating the employment-based fourth preference petition.  The specific criteria DHS will assess include:

(a)  Employment with, or relationship to an employee of, an international organization or NATO;

(b)  Length of residence (as defined in INA 101(a)(33)) in the United States;

(c)  Length of physical presence in the United States;

(d)  Maintenance of G-4, N or NATO status; and

(e)  Timing of Application:  Because the beneficiary class includes only aliens who are or have been in the United States, DHS records can constitute the most compelling evidence for entitlement to status.

(2)  Unmarried Sons or Daughters of Certain Present or Former Officers or Employees of an International Organization or NATO:

(a)  Residence and Physical Presence Requirements:  The applicant, while maintaining nonimmigrant G, N or NATO status, must have resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status, AND for a period or periods aggregating at least seven years between the ages of five and 21 years.

(b)  Application Requirements:  The applicant must apply for a visa or adjustment of status no later than his or her twenty-fifth birthday.

(3)  Surviving Spouse of Deceased Officer or Employee of an International Organization or NATO:

(a)  Residence and Physical Presence Requirements:  The applicant, while maintaining nonimmigrant G, N or NATO status, must have resided and been physically present in the United States for periods totaling at least one half of the seven years before the date of application for a visa or for adjustment of status AND for a period or periods aggregating at least 15 years before the date of death of the international organization employee.

(b)  Application Requirements:  The applicant must apply for a visa or adjustment of status no later than six months after the death of an officer or employee of an international organization.

(4)  Certain Retired Officers or Employees of an International Organization or NATO:

(a)  Residence and Physical Presence Requirements:  The applicant, while maintaining nonimmigrant G, N or NATO status, must have resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status AND for a period or periods aggregating at least 15 years before the date of the international employee’s retirement.

(b)  Application Requirements:  The applicant must apply for a visa or adjustment of status no later than six months after the date of retirement.  The Department of Homeland Security has determined that although petitions must be filed no later than six months after the alien retires; visas may be issued after that date.

(5)  Spouses of Certain Retired Officers or Employees of an International Organization or NATO:  The applicant must be “accompanying” or “following-to-join” the retired officer or employee who meets the qualification outlined under 9 FAM 502.5-6(B) paragraph a(4) above.

(6)  No Derivative Status:  Except for aliens entitled to status under INA 101(a)(27)(I)(iv), there is no derivative status provided under INA 101(a)(27)(I) or INA 101(a)(27)(L).

(7)  INTELSAT Employees:  For the purpose of INA 101(a)(27)(I), INTELSAT should be considered an International Organization. (See section 301 of Public Law 106-396.)

b. Processing Cases for Special Immigrant Status for Employee of Certain International Organizations or NATO:

(1)  Petition:  An applicant eligible for status as a special immigrant under INA 101(a)(27)(I) or INA 101(a)(27)(L) must also be the beneficiary of an approved employment-based fourth preference petition.  For a statutory description of qualifications for special immigrant status under INA 101(a)(27)(I) and (L), see 9 FAM 502.5-6(B) paragraph a above.

(2)  Timeliness of Application:  Department of State regulation 22 CFR 42.32(d)(5)(ii) requires that an alien who qualifies under INA 101(a)(27)(I) or INA 101(a)(27)(L) be issued an immigrant visa within six months of establishing entitlement to status.

9 FAM 502.5-7  Fourth Preference Special Immigrants – Certain Juvenile Court Dependents

9 FAM 502.5-7(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-7(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(J) (8 U.S.C. 1101(a)(27)(J)); INA 203(b)(4) (8 U.S.C. 1153(b)(4)).

9 FAM 502.5-7(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.32(d)(6).

9 FAM 502.5-7(B)  Certain Juvenile Court Dependents

(CT:VISA-1;   11-18-2015)

a. Under INA 101(a)(27)(J), special immigrant status is granted an immigrant who is present in the United States:

(1)  Who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

(2)  For whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and

(3)  In whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that:

(a) No juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and

(b) No natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph may thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

b. It is likely that most, if not all, juvenile court dependents classifiable under INA 203(b)(4) as aliens described in INA 101(a)(27)(J) will seek and be entitled to adjustment of status, rather than applying for visas abroad.  Consular officers should note, however, that, while the Immigration Act of 1990 provided for the waiver of certain bases for deportation for such aliens, it did not waive the bars to adjustment in INA 245(c), nor to grounds of ineligibility under INA 212. It is therefore possible, absent other legislation, that some beneficiaries of this provision might have to apply for a visa abroad.

9 FAM 502.5-8  Fourth Preference Special Immigrants – Members of U.S. Armed Forces Recruited Abroad

9 FAM 502.5-8(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-8(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(K).

9 FAM 502.5-8(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.32(d)(7).

9 FAM 502.5-8(A)(3)  Public Law

(CT:VISA-1;   11-18-2015)

Armed Forces Immigration Adjustment Act of 1991, Public Law 102-110, sec. 2.

9 FAM 502.5-8(B)  Members of U.S. Armed Forces Recruited Abroad

(CT:VISA-1;   11-18-2015)

a. Eligibility for Special Immigrant Status as Member of U.S. Armed Forces Recruited Abroad:

(1)  An alien may be eligible for classification under INA 101(a)(27)(K) if the:

(a)  Alien is a veteran who served honorably in the U.S. Armed Forces on active duty for a period of 12 years after October 15, 1978;

(b)  Alien is currently enlisted in the U.S. Armed Forces, has served at least six years, and has reenlisted for a total active duty service obligation of at least 12 years;

(c)  Alien’s original enlistment was outside the United States under a treaty or agreement in effect October 1, 1991 (the United States has special agreements with the Philippines, Micronesia, and the Marshall Islands to allow natives of those countries to serve in our Armed Forces); and

(d)  Executive department under which the alien has served or is serving has recommended the granting of special immigrant status.

(2)  Derivative Status:  The accompanying or following-to-join spouse or child of an alien granted special immigrant status under INA 101(a)(27)(K) may also be accorded the same special immigrant classification. This may occur whether or not the spouse or child is named in the petition and without the approval of a separate petition.  The relationship of spouse or child, however, must have existed at the time the principal alien’s special immigrant application was approved.  If the spouse or child is in the United States but was not included in the principal alien’s application, the spouse or child must file Form I-485, Application for Permanent Residence, with the DHS.  If the spouse or child is outside the United States, the principal alien must file Form I-824, Application for Action on an Approved Application or Petition.

b. Processing Cases Related to Special Immigrant Status as Member of U.S. Armed Forces Recruited Abroad:

(1)  Applicability to Visa Issuance:  The Armed Forces Immigration Adjustment Act of 1991, Public Law 102-110, was enacted on October 1, 1991. Section 2 of this Act provided for special immigrant status under INA 101(a)(27)(K) for certain foreign nationals who served honorably in the U.S. Armed Forces, or will serve, for a period of 12 years.  These enlistees/veterans and their spouses and children may apply to become permanent resident aliens of the United States and also become immediately eligible to apply for naturalization as U.S. citizens.  Although the title of this Act implies that the beneficiaries of this classification will apply for adjustment of status, it is possible that some beneficiaries and/or their spouses or children will apply for immigrant visas.

(2)  Petition Requirement:  To be classified as a special immigrant under INA 101(a)(27)(K) an alien must be the beneficiary of an approved Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.  The petition must be filed with the Department of Homeland Security (DHS) having jurisdiction over the place of the alien’s current or intended place of residence in the United States, or with the overseas DHS office having jurisdiction over the alien’s residence abroad.

(3)  Documentation:  The following documents must be submitted in support of the petition:

(a)  Certified proof of enlistment (after 6 years of active duty service) or certification of past active duty status of 12 years, issued by the authorizing official of the executive department in which the applicant serves or has served, certifying that the applicant has the required honorable service and recommending special immigrant status; and

(b)  Birth certificate, or other acceptable documentary proof, establishing that the applicant is a national of an independent state maintaining a treaty or agreement allowing nationals of that state to enlist in the U.S. Armed Forces.

(4)  Visa Number Allocation Not Required:  A visa number for an applicant classified under INA 101(a)(27)(K) is not required in advance of visa issuance.  When the case is ready for final action, the post should schedule a visa interview appointment and bring the case to a conclusion without a request for or allocation of a visa number.

(5)  Reporting Visa Issuances:  Posts should report visa issuances under INA 101(a)(27)(K) to the Department in their monthly workload reports.

9 FAM 502.5-9  Fourth Preference Special Immigrants – Certain International Broadcasting Employees

9 FAM 502.5-9(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-9(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27)(M) (8 U.S.C. 1101(a)(27)(M).

9 FAM 502.5-9(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 40.1(a)(1); 22 CFR 42.31(d)(8).

9 FAM 502.5-9(A)(3)  Public Law

(CT:VISA-1;   11-18-2015)

Public Law 106-536.

9 FAM 502.5-9(B)  Certain International Broadcasting Employees

(CT:VISA-1;   11-18-2015)

a. Special Immigrant Classification As International Broadcasting Employee:

(1)  Background:  Public Law 106-536 amended the INA by adding a new special immigrant classification (BC) for international broadcasting employees who are seeking visas to enter the United States to work as:

(a)  A broadcaster in the United States for the International Broadcasting Bureau of the Broadcasting Board of Governors (BBG); or

(b)  For a grantee of the BBG.

(2)  Defining Broadcaster:  For the purposes of this visa, the Department of Homeland Security defines “broadcaster” as an alien intending to work in the United States for the BBG or a BBG grantee as a:

(a)  Reporter;

(b)  Writer;

(c)  Translator;

(d)  Editor;

(e)  Producer or announcer for news broadcasts;

(f)   Host for news broadcasts, news analysis, editorial and other broadcasts features; or

(g)  News analysis specialist.

The definition does not include aliens seeking purely technical or support positions with the BBG or BBG grantee.

(3)  Defining BBG Grantee:  For the purposes of this section BBG grantee means:

(a)  Radio Free Asia, Inc (RFA); and

(b)  Radio Free Europe/Radio Liberty, Inc. (RFE/RL).

(4)  Accompanying Spouse and Children:  Spouses and children, if accompanying the principal alien, may be granted derivative status. (See 22 CFR 40.1(a)(1) for the definition of accompanying.)

b. Qualifying under INA 101(a)(27)(M):

(1)  To qualify as a special immigrant under INA 101(a)(27)(M), an applicant must:

(a)  Be the beneficiary of an approved fourth preference petition Form I- 360, Petition for Amerasian, Widow(er), or Special Immigrant;

(b)  Provide a signed and dated attestation from the BBG or its grantee which reflects:

(i)     The job title and a full description of the job to be performed;

(ii)    The experience held by the alien broadcaster;

(iii)    The number of years the alien has been performing duties that related to the prospective position;

(iv)   That hiring the alien broadcaster is in compliance with other laws governing employment and discrimination prevention; and

(v)    The terms of the job are not contrary to any Federal, State, or local law.

(2)  Petition:  If the BBG or a BBG grantee wishes to employ an alien who seeks to enter the United States under INA 101(a)(27)(M), they must file the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant with the DHS Vermont Service Center.

(3)  Determining a Priority Date:  The priority date of a petition for classification under INA 101(a)(27)(M) is the date the completed application, including all supporting documentation and the designated fee, is signed and properly filed with the Vermont Service Center.

(4)  Numerical Limitation:  The law limits the number of broadcasters to no more than 100 in any fiscal year. This excludes spouses and children, who are not limited in number.

9 FAM 502.5-10  Fourth Preference Special Immigrants – Victims of Terrorism

9 FAM 502.5-10(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-10(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27) (8 U.S.C. 1101(a)(27)); INA 203(b)(4) (8 U.S.C. 1153(b)(4)).

9 FAM 502.5-10(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.32(d)(9).

9 FAM 502.5-10(A)(3)  Public Law

(CT:VISA-1;   11-18-2015)

USA PATRIOT Act, Public Law 107-56, sec. 421.

9 FAM 502.5-10(B)  Victims of Terrorism

(CT:VISA-383;   06-15-2017)

See 9 FAM 502.7-4 for an overview of the effects of USA PATRIOT Act provisions on immigrant visa status for victims of the September 11 terrorist attacks.  This section only describes entitlement to and processing of special immigrant cases related to the September 11 attacks. 

(1)  Entitlement to Special Immigrant Status:

(a)  Section 421 of the USA PATRIOT Act:  Section 421 of the USA Patriot Act (Public Law 107-56) provides special immigrant status subject to numerical limitations under INA 101(a)(27) for certain aliens who can demonstrate:

(i)     They are victims of the terrorist attacks of September 11, 2001 (evidentiary requirements as determined by the Secretary of the Department of Homeland Security); and

(ii)    They are beneficiaries of petitions or labor certification applications filed on or before September 11, 2001, revoked, terminated, or rendered null because the petitioner was killed, disabled, or the business was ruined as the result of such terrorist activity.

(b)  Entitlement to Special Immigrant Status Under Section 421 of the USA Patriot Act for Surviving Spouse, Child or Fiancé of a U.S. Citizen for Whom Petition Filed:  The surviving spouse, child, or fiancé of a U.S. citizen killed in the September 11 attacks may self-petition for special immigrant status as if the principal alien had not died. The petition must have been filed before September 11, 2001.  The relationship of a derivative spouse or child to the principal alien must have existed on September 10, 2001. The alien must demonstrate that the death of the principal alien was a direct result of the terrorist attack of September 11, 2001. The derivative child must enter the United States by September 11, 2003.

(c)  Accompanying and Following-To-Join Dependents:

(i)     Spouse and Child:  The spouse and children of an alien who qualifies under section 421 of the USA Patriot Act as a special immigrant may also be granted special immigrant status provided:

·         The relationship to the principal alien existed on September 10, 2001; and

·         The alien is accompanying or following-to-join the principal alien no later than September 11, 2003.

(ii)    Child Over Age 21:  The child of an alien who is granted special immigrant status under section 421 of the USA Patriot Act who was a "child" on September 10, 2001, may still benefit from the special immigrant provisions even after reaching the age of 21.

(iii)    Grandparents: 

·         The grandparent of an alien who qualifies under section 421 of the USA Patriot Act may be granted special immigrant status if both parents of the grandchild died as a result of the September 11 attacks and if one of the parents was a U.S. citizen, U.S. national or a lawful permanent resident alien on September 10, 2001.  The spouse or child of the grandparent who qualifies under this section may accompany or follow-to-join the principal applicant.

·         Applying for Special Immigrant Status:  The grandparent who qualifies under section 421(c) of the USA Patriot Act, must self-petition using Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. The grandparent must demonstrate that he or she is coming to the United States to assume legal custody of a child both of whose parents were killed in the September 11, 2001 terrorist attack. (See 9 FAM 502.7-4.)

·         Processing Special Immigrants under Section 421(c) of the USA Patriot Act:  Upon receipt of an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, consular officers should process the case as any other immigrant case.  However, no Form I-864, Affidavit of Support Under Section 213A of the Act, may be required and the applicant is exempt of INA 212(a)(4).  The applicant should be issued a visa annotated:  "SP - beneficiary of section 421, USA PATRIOT ACT."

(d)  Beneficiary of USA Patriot Act With Approved Labor Certification:

(i)     Under section 421(b)(1)(A)(ii) of the USA Patriot Act, a principal alien beneficiary of an approved labor certification that is revoked due to the disabling of the principal alien or the loss of his or her employment due to physical damage caused by the terrorist attacks of September 11 is eligible for special immigrant status, as are his or her derivative spouse and children.  If the principal alien was killed in the attacks of September 11, a surviving spouse or child is eligible for special immigrant status.  The labor certification must have been filed on or before September 11, 2001.  The relationship of a derivative spouse or child to the principal alien must have existed on September 10, 2001. (See 9 FAM 502.7-4.)

(ii)    Applying for Status:  The alien classified as an SP alien under the USA Patriot Act must file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant with DHS at the service center that has jurisdiction over the intended place of residence.

(iii)    Processing an Alien under 421(b)(1)(A)(ii) of the USA Patriot Act:  You must follow standard immigrant visa processing once the approved petition is received from NVC. However, no Form I-864, Affidavit of Support Under Section 213A of the Act, may be required and the applicant is exempt from INA 212(a)(4) ineligibility. Issue as follows:  “SP - beneficiary of section 421, USA PATRIOT ACT”.

(2)  Applying for Special Immigrant Status:

(a)  Special Immigrant Status Under Provisions of the USA Patriot Act:  Applicants must submit Department of Homeland Security Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant including evidence of entitlement to special immigrant status, to the DHS service center that has jurisdiction over the alien's place of residence. Consular officers should be advised to contact the DHS for detailed application procedures and requirements.  Consular officers must wait for the approved petition before visa processing can begin.

(b)  Priority Date:  Under section 421 of the USA Patriot Act, an alien's priority date under INA 203(b)(4) is generally the date that the alien files the petition for classification as a special immigrant. However, if an alien already has established a priority date based on the initial petition, the alien can maintain the earlier priority date.

(c)  Processing Applications Under Section 421 of the USA Patriot Act:  Posts will be notified of Form I-140, Immigrant Petition for Alien Worker, approval via National Visa Center.  Posts should then proceed with regular IV processing by sending Instruction and Appointment packages to the applicant.  Applicants must comply with the usual security checks, demonstrate evidence of relationships, and undergo the standard medical exam.  However, no Form I-864, Affidavit of Support Under Section 213A of the Act, may be required.  The Patriot Act specifically exempts applicants from the public charge ground of inadmissibility under INA 212(a)(4).  Qualified applicants should be issued:  "SP - beneficiary of section 421, USA PATRIOT ACT."

(d)  INA 212(a)(4):  The public charge provisions of INA 212(a)(4) are not applicable to aliens granted special immigrant status under section 421 of the USA Patriot Act.  All other grounds of ineligibility apply.

9 FAM 502.5-11  Fourth Preference Special Immigrants – Certain Special Immigrant Translators

9 FAM 502.5-11(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-11(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27) (8 U.S.C. 1101(a)(27)).

9 FAM 502.5-11(A)(2)  Public Law

(CT:VISA-1;   11-18-2015)

National Defense Authorization Act for Fiscal Year 2006, Public Law 109-163, sec. 1059; U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Public Law 110-28, sec. 3812(b); Consolidated Appropriations Act, 2008, Public Law 110-161, division J, sec. 699J; Public Law 110-242, sec. 2; National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, sec. 1244; Omnibus Appropriations Act, 2009, Public Law 111-8, division F, sec. 602.

9 FAM 502.5-11(B)  Certain Special Immigrant Translators

(CT:VISA-383;   06-15-2017)

a. Special Immigrant Translator Status:

(1)  Eligibility for Special Immigrant Translator or Interpreter Status under INA 101(a)(27) (Section 1059 of Public Law 109-163): 

(a)  Criteria for Status:  Applicants filing a petition for special immigrant translator or interpreter (SI1) status must meet the following criteria:

(i)     Must be a national of Iraq or Afghanistan;

(ii)    Must have worked directly with the United States Armed Forces, or under Chief of Mission (COM) authority, as a translator or interpreter for a period of at least 12 months;

(iii)    Must have provided faithful and valuable service to the United States Armed Forces or the COM, which is documented in a favorable written recommendation from a general or flag officer in the chain of command of the United States Armed Forces unit that was supported by the alien or, if the applicant claims status based on work under COM authority, a favorable written recommendation from the COM;

(iv)   Must have cleared a background check and screening as determined by a general or flag officer in the chain of command of the United States Armed Forces unit that was supported by the alien or by the COM; and

(v)    Is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except in determining such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) relating to "public charge" do not apply.

(b)  Additional Interview Requirements:  An applicant for special immigrant translator or interpreter status must provide for his or her interview a written description of his or her position and responsibilities for translation or interpretation.  Principal applicants  must be interviewed in English only.  Descriptions of the positions of translators and interpreters are provided on the Visa Section of Consular Affairs’ website.  In addition, the officer should ask the applicant about any prior applications for Chief of Mission approval under the SQ SIV program as well as the result of those applications.

(2)  Spouses and Children:

(a)  The derivative spouse and minor, unmarried children of the principal applicant may be included in the case and do not count against the fiscal year cap for interpreters and translators.  They may accompany the principal applicant or follow-to-join the principal.

(b)  A surviving spouse or child is also entitled to special immigrant status if the principal alien had a petition approved by the Secretary of Homeland Security, but the petition was revoked or terminated after its approval due to the death of the petitioning alien.  (Section 1244(b)(3) of Public Law 110-181 and Section 602(b)(2)(C) of Division F of Public Law 111-8.)  In such an instance, the approved SI petition would be converted to an approved SQ petition for special immigrant status under section 1244 of Public Law 110-181 (for the surviving spouse or child of an Iraqi national) or section 602(b) of Public Law 111-8 (for the surviving spouse or child of an Afghan national).  Post may continue to process the application without affirmative action by USCIS to reinstate the petition, so long as the derivatives were included on the petition approved by USCIS.

(c)  In issuing a visa to an eligible surviving spouse or child, the consular officer must annotate the visa appropriately.  For the surviving spouse/child of an Afghan principal applicant, annotate with "Issued as a surviving spouse/child pursuant to section 602(b)(3) of Public Law 111-8." For the surviving spouse/child of an Iraqi principal applicant, annotate with "Issued as a surviving spouse/child pursuant to section 1244(b)(3) of Public Law 110-181."

b. Processing Special Immigrant Translator Cases:

(1)  Numerical Limitations: 

(a)  Except as provided in paragraph b, the total number of principal aliens who may be provided special immigrant translator or interpreter status during any fiscal year must not exceed 50.

(b)  If the numerical limitation is not reached during a given fiscal year, the numerical limitation for the following fiscal year will be increased by the amount of numbers that were unused.

(c)  If the numerical limitation for SI1 status has been reached during a given fiscal year and the petition was filed before October 1, 2008, an approved petition for SI1 status may be converted to an approved petition for special immigrant status under section 1244 of Public Law 110-181 (SQ1), notwithstanding the qualification criteria for SQ1 status (see 9 FAM 502.5-11(B) paragraph b(4) below).

(2)  Petitions:  Aliens outside the United States file the petition with the U.S. Citizenship and Immigration Services by sending the petition directly to the Nebraska Service Center for adjudication.  Posts have no authority to adjudicate these translator or interpreter petitions. Posts will provide a translator or interpreter under COM authority for at least 12 months who has provided the requisite faithful and valuable service to the COM and cleared the background check or screening with a favorable written recommendation or evaluation from the COM.  The U.S. Armed Forces unit, not the Department of State, is the advocate on behalf of the translator or interpreter (petitioner) with the U.S. Armed Forces and his or her immediate family and will assist them with the required documentation. The Nebraska Service Center will send an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant through the National Visa Center (NVC) to designated posts for adjudication.

(3)  Approval of Petition under INA 204The approval of a petition under INA 204 is considered to establish prima facie entitlement to status, and the qualifications of the alien beneficiary are presumed to exist. Unless you have specific, substantial evidence of either misrepresentation in the petition process (including questions of identity in verifying the employee's signature on Form I-360 per 9 FAM 502.5-12(B) paragraph b(2)(c)), derogatory information that may call into question the faithful and valuable service of the applicant, or other facts unknown to USCIS at the time of approval, you generally would have no reason to return the petition to USCIS. If posts have further questions, contact the Office of Field Operations (CA/VO/F).

(4)  Cases Converted from SI1 to SQ1:

(a)  You may encounter a visa application for a principal alien whose approved petition for SI1 status under section 1059 of Public Law 109-163, as amended, has been converted to an approved petition for SQ1 status under section 1244 of Public Law 110-181, as amended.  In authorizing the conversion of these petitions when a visa is not immediately available with respect to SI1 status, Congress exempted the self-petitioning alien from the qualification requirements for SQ1 status other than the numerical limitations.

(b)  In reviewing the qualifications of a principal alien whose petition has been converted from SI1 to SQ1, you must consider the criteria outlined in 9 FAM 502.5-11(B) paragraph a(2) above, not/not those found in 9 FAM 502.5-12(B) paragraph b(1), to the extent that they differ.  Unless you have specific, substantial evidence of either misrepresentation in the petition process or facts unknown to USCIS at the time of petition approval indicating that the alien does not meet the criteria for SI1 status listed in 9 FAM 502.5-11(B) paragraph a(2) above, you generally would have no reason to return the petition to USCIS.

(c)  Note that, in the case of a national of Afghanistan whose petition has been converted from SI1 to SQ1 status, you may not return the petition to USCIS based on a lack of Iraqi nationality or citizenship since Afghan nationality is a qualification ground listed in 9 FAM 502.5-11(B) paragraph a(2) above. 

(d)  The conversion provision did not authorize a fee waiver. An individual whose case is converted from SI1 to SQ1 must pay all required fees.

9 FAM 502.5-12  Fourth Preference Special Immigrants – Certain Iraqi and Afghan Nationals employed by or on behalf of the U.S. Government in Iraq or Afghanistan, and certain afghan nationals employed by the international security assistance force or a successor mission

9 FAM 502.5-12(A)  Related Statutory and Regulatory Authorities

9 FAM 502.5-12(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(27) (8 U.S.C. 1101(a)(27)); INA 204 (8 U.S.C. 1154).

9 FAM 502.5-12(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.2(g).

9 FAM 502.5-12(A)(3)  Public Law

(CT:VISA-512;   03-12-2018)

a. Afghan Program:  Afghan Allies Protection Act, Public Law 111-8, sec. 602(b); Consolidated Appropriations Act of 2014, Public Law 113-76, sec. 7034(o); National Defense Authorization Act of 2014, Public Law 113-66, sec. 1219; Emergency Afghan Allies Extension Act, Public Law 113-160, sec. 1; National Defense Authorization Act of 2015, Public Law 113-291, sec. 1227; National Defense Authorization Act of 2016, Public Law 114-92, sec. 1216; National Defense Authorization Act for FY 2017, Public Law 114-328, sec. 1214; Consolidated Appropriations Act for 2017, Public Law 115-31, sec. 7083; and National Defense Authorization Act for FY 2018, Public Law 115-91, sec 1213.

b. Iraqi Program:  National Defense Authorization Act of Fiscal Year 2008, Public Law 110-181, sec. 1244; Public Law 110-242, sec. 2; Public Law 113-42, sec. 1; National Defense Authorization Act of 2014, Public Law 113-66, sec. 1218.

9 FAM 502.5-12(B)  Certain Iraqi and Afghan Nationals Employed by or on Behalf of the U.S. Government in Iraq or Afghanistan, and Certain Afghan Nationals Employed by the International Security Assistance Force or a Successor Mission

(CT:VISA-383;   06-15-2017)

a. Eligibility for Special Immigrant Status for Iraqi and Afghan Nationals Employed by or on Behalf of the U.S. Government, and Afghan Nationals Employed by the International Security Assistance Force or a Successor Mission:

(1)  Who is Eligible for Special Immigrant Status (SQ1) Under Section 1244 or Section 602(b)?  To obtain U.S. Citizenship and Immigration Services' approval of a petition for special immigrant status (SQ1) under section 1244 of Public Law 110-181 or section 602(b) of Division F, Title VI, of Public Law 111-8, a self-petitioning alien must establish that he or she:

(a)  Is a national of Iraq or Afghanistan;

(b)  Has the required period of qualifying employment, specifically:

(i)     In the case of a national of Iraq: has been employed by, or on behalf of the U.S. government in Iraq, on or after March 20, 2003 and prior to September 30, 2013, for a period of not less than one year and who applied for Chief of Mission (COM) approval by September 30, 2014;

(ii)    in the case of a national of Afghanistan:

·         For COM applications submitted before December 19, 2014, the applicant must have been employed by, or on behalf of the U.S. Government in Afghanistan, on or after October 7, 2001 for a period of not less than one year. The one year period of employment must have been completed by December 31, 2014.  For COM applications submitted between December 19, 2014 and September 30, 2015, the applicant must have been employed by or on behalf of the U.S. Government, or by the International Security Assistance Force (ISAF) or a successor mission, in Afghanistan on or after October 7, 2001 for a period of not less than one year.  The one year period of employment must have been completed by September 30, 2015. 

·         For COM applications submitted between September 30, 2015 and December 22, 2016, the applicant must have been employed by or on behalf of the U.S. Government, or by the International Security Assistance Force (ISAF) or a successor mission, in Afghanistan on or after October 7, 2001 for a period of not less than two years.  The two year period of employment must have been completed by December 31, 2016.

·         For COM applications submitted on or after December 23, 2016, the applicant must have been employed by or on behalf of the U.S. Government, or by ISAF or a successor mission, in Afghanistan on or after October 7, 2001 for a period of not less than two years.  The two year period of employment must be completed by December 31, 2020.  The applicant's employment must have required him or her to: serve as an interpreter or translator for personnel of the Department of State or USAID, particularly while traveling away from the U.S. embassy or consulates; serve as an interpreter or translator for U.S. military personnel, particularly while traveling off base with such personnel; or to perform sensitive and trusted activities for the U.S. government in Afghanistan.

(iii)    For nationals of Afghanistan qualifying on the basis of employment by ISAF, or a successor mission, that employment must be for the required period as listed above and must have been in a capacity that required the applicant to serve as an interpreter or translator for U.S. military personnel while traveling off-base with U.S. military personnel stationed at ISAF, or a successor mission, or to perform sensitive and trusted activities for U.S. military personnel stationed at ISAF, or a successor mission.  Employment by ISAF, or a successor mission, also includes employment by NATO and governments participating in ISAF, or any successor missions.

(c)  Has been determined by the COM in Embassy Baghdad or Embassy Kabul, as applicable, or the COM’s designee, to have provided faithful and valuable service to an entity or organization described in 9 FAM 502.5-12(B) paragraph a(1)(b) above, which is documented in a positive recommendation from the alien’s supervisor as defined in 9 FAM 502.5-12(B) paragraph b(3) below and a human resources letter from the entity or organization described in 9 FAM 502.5-12(B) paragraph a(1)(b);

(d)  Has been determined by the chief of mission in Embassy Baghdad or Embassy Kabul, as applicable, or the COM’s designee, to have experienced, or to be experiencing, an ongoing serious threat, as defined in 9 FAM 502.5-12(B) paragraph a(4) below, as a consequence of the employment by or on behalf of the U.S. government;

(e)  Has cleared a background check and appropriate screening as determined by the Secretary of Homeland Security; and

(f)   Is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except that, in the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) relating to "public charge" do not apply.

(2)  What Does “Faithful and Valuable Service” Mean?

(a)  The COM, or his or her designee, has primary responsibility for determining whether the alien's service has been "faithful and valuable."  This is done through an independent review and verification of records maintained by the U.S. government or hiring organization or entity.  This is separate from the supervisor’s recommendation discussed in 9 FAM 502.5-12(B) paragraph a(3) below, although the supervisor’s recommendation is an important document to assist in making this determination.

(b)  9 FAM 502.5-3(C)(2) paragraph b, which discusses “faithful service” in the context of special immigrant classification under INA 101(a)(27)(D), notes that a record of disciplinary actions that have been taken against an employee does not automatically disqualify the employee.  The COM, or his or her designee, must assess the gravity of the reasons for the disciplinary action and whether the record as a whole, notwithstanding the disciplinary actions, is one of faithful service.  Meeting the minimum requirements to qualify as an SQ1 does not automatically constitute faithful and valuable service.

(3)    Who Qualifies as a Supervisor?

(a)  The supervisor should normally be the U.S. citizen who directly supervises the alien, or supervises the company for which the alien is employed.  In all cases, before offering a recommendation for the employee for purposes of obtaining a special immigrant visa for the employee, the supervisor must have met the employee and must certify, in writing, that the referred applicant is personally known to the supervisor and, to the best of the supervisor’s knowledge, presents no threat to the national security or safety of the United States.

(b)  If it is not possible for a contract or subcontract employee to obtain this certification from a U.S. citizen supervisor, then post may accept a letter from a non-U.S. citizen supervisor, provided the U.S. citizen responsible for the contract or subcontract co-signs the letter and indicates that based on his or her relationship with the contract or subcontract supervisor, he or she is confident that the information provided is correct and also certifies that to the best of his or her knowledge, the employee presents no threat to the national security or safety of the United States.

(c)  The recommendation must also contain the supervisor’s personal and work email address, and if the supervisor is not a U.S. citizen, the U.S. citizen’s cosigner’s personal and work email address so he or she may be contacted if additional information is needed.

(4)  What Does “Has Experienced or is Experiencing an Ongoing Serious Threat” Mean? 

(a) To qualify for an SIV in the SQ1 classification, an alien must have experienced, or be experiencing, an ongoing serious threat as a consequence of his or her employment by, or on behalf of, the U.S. government.  This determination must be made by the COM, Embassy Baghdad or Embassy Kabul, as applicable, or the COM’s designee (see 9 FAM 502.5-12(B) paragraph a(1)(d) above).  Applicants must submit information relative to their particular circumstances to demonstrate that they are experiencing an ongoing serious threat, which may include statements from their employer, personal statements, or statements from community leaders.  Conditions within the country itself may be indicative of a threat environment to which current or former employees are subjected.  The National Defense Authorization Act for FY 2014, signed on December 26, 2013, amended the statutory requirements for evidence of a serious threat by requiring consideration of a credible sworn statement depicting dangerous country conditions, together with official evidence of such country conditions from the U.S. government, as a factor in determinations of whether an alien has experienced, or is experiencing, an ongoing serious threat as a consequence of employment by, or on behalf of, the U.S. government. 

(b) The COM, or the COM's designee, is responsible for making the determination of whether an alien meets the statutory threat requirement.  This determination should not be reassessed at the time of visa interview unless there is specific, substantial evidence that the alien misrepresented facts relative to the existence of a threat at the time of COM approval, in which case the consular officer should refer the case to the COM or COM designee for reconsideration of COM approval. 

(5)  Are Spouses and Children Qualified?

(a)  The derivative spouse and minor, unmarried children of the principal applicant may be included in the case and do not count against the cap of special immigrant visas (SQ1s) for that nationality each fiscal year. They may accompany the principal applicant or follow-to-join the principal.

(b)  A spouse or child is also eligible if the principal alien had a petition approved by the Secretary of Homeland Security, but the petition was automatically revoked or terminated after its approval due to the death of the petitioning alien.  In the case of a surviving derivative spouse or minor who is otherwise qualified to receive a visa, post may continue to process the application without affirmative action by USCIS to reinstate the petition, so long as the derivatives were included on the petition approved by USCIS.

(c)  In issuing a visa to an eligible surviving spouse or child, the consular officer must annotate the visa appropriately.  For the surviving spouse/child of an Afghan principal applicant, annotate with "Issued as a surviving spouse/child pursuant to section 602(b)(3) of Public Law 111-8."  For the surviving spouse/child of an Iraqi principal applicant, annotate with "Issued as a surviving spouse/child pursuant to section 1244(b)(3) of Public Law 110-181."

b. IV Processing for Special Immigrant Iraqi and Afghan Nationals Employed by or on behalf of the U.S. Government, and Afghan Nationals Employed by the International Security Assistance Force or a Successor Mission:

(1)  Are There Numerical Limitations on Visa Issuance?

(a)  The total number of principal aliens of Iraqi nationality who could be provided special immigrant status (SQ1) under section 1244 was limited to 5,000 per year for FYs 2008 through 2012.    Unused numbers from FY 2012 were allocated to FY 2013.  Section 1 of Public Law 113-42 amended section 1244 by authorizing the issuance of SQ1 visas through December 31, 2013 in the amount of the total number of applications for SIV status by Iraqi principal applicants pending as of September 30, 2013 and for up to 2,000 additional visas for Iraqis who applied for status as principal applicants subsequent to that date.  Section 1218 of the National Defense Authorization Act for FY 2014, Public Law 113-66, again amended section 1244 by authorizing the issuance of 2,500 SQ1 visas to Iraqi principal applicants beginning on January 1, 2014.

(b)  The total number of principal aliens of Afghan nationality who could be provided SQ1 under section 602(b) was limited to 1,500 per year for FYs 2009 through 2013.  Section 7034(o) of Division K, Title VII of Public Law 113-76 amended section 602(b) by authorizing the issuance of 3,000 visas to Afghan principal applicants in FY 2014 and allowing that any unissued visas from FY 2014 be allocated to FY 2015.  Section 1 of Public Law 113-160, signed on August 8, 2014, further amended section 602(b) by authorizing the issuance of 1,000 additional visas to Afghan principal applicants by December 31, 2014.  All visas allocated in Public Laws 113-76 and 113-160 were issued as of December 14, 2014.  Section 1227 of Public Law 113-291, signed on December 19, 2014, authorized the issuance of 4,000 visas to Afghan principal applicants by March 31, 2017.  Section 602(b) was subsequently amended by section 1216 of Public Law 114-92, signed on November 25, 2015, which authorized the issuance of 3,000 visas to Afghan principal applicants, in addition to the 4,000 authorized in Public Law 113-291.  Public Law 114-328, enacted December 23, 2016, amended this to permit the issuance of an additional 1,500 visas to Afghan principal applicants.  There is no specified date by which these 8,500 total visas must be issued.

(2)  How are Petitions Filed?

(a)  The elements below must be established by approval of the COM, Embassy Baghdad or Embassy Kabul, as applicable, or the COM’s designee before the petition can be forwarded to USCIS:

(i)     Assessment of the alien establishing that the alien has experienced, or is experiencing, an ongoing serious threat as a consequence of his or her employment by or on behalf of the U.S. government (see 9 FAM 502.5-12(B) paragraph a(4); and

(ii)    An independent review and verification of records maintained by the U.S. government or the hiring organization or entity that confirms the alien’s employment and faithful and valuable service to the U.S. government.

(b)  Applicants must file the petition directly with the USCIS Nebraska Service Center for adjudication along with all required evidence.  USCIS will contact the applicant directly should any questions or need for further documentation be required.  Posts have no authority to adjudicate these petitions.  The approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, will be sent through the National Visa Center (NVC) to designated posts for visa processing.

(c)  Form I-360 petitions under section 1244 of Public Law 110-181 and section 602(b) of Public Law 111-8 may be filed by applicants via email and provisionally approved by USCIS.  The applicant is instructed by USCIS in the approval notice for the petitioner to bring the signed original Form I-360 to the visa interview.  The Bureau of Consular Affairs and USCIS signed a Memorandum of Understanding in January 2012 that consular officers would verify that petitioners have satisfied I-360 filing requirements at their visa interviews.  At the visa interview, the consular officer must review the original signed I-360, confirm that the signature is valid, and verify the petitioner’s identity. If the applicant's signature and identity are verified, no further action is required by the consular officer.  If the signature is not valid, or the consular officer questions the validity of the petition for other reasons, the consular officer will return the file to USCIS via NVC for review and possible revocation of the I-360. 

(3)  Approval of Petition Under INA 204:  The approval of a petition under INA 204 is considered to establish prima facie entitlement to status, and the qualifications of the alien beneficiary are presumed to exist.  Unless you have specific, substantial evidence of either misrepresentation in the petition process or facts unknown to USCIS (including questions of identity in verifying the employee's signature on Form I-360 per 9 FAM 502.5-12(B) paragraph b(2)(c) above) at the time of petition approval or to the COM, Embassy Baghdad or Embassy Kabul, as applicable, at the time of the approval described 9 FAM 502.12(B) paragraph b(2)(a), you generally would have no reason to return the petition to USCIS. If posts have further questions, contact the Office of Field Operations  (CA/VO/F).

(4)  Immediate Intent to Immigrate:

(a)  Special immigrant status (SQ1) was not designed for use as an “insurance policy” to protect an alien against the possibility of political or economic vicissitudes in the future.  Nor was it the intent of Congress that the principal alien obtain SQ1 status solely to facilitate the entry of dependents into the United States when it is the principal alien’s intent to return abroad to resume employment with the U.S. government.  SQ visas should have a maximum validity period of six months.

(b)  Before issuing a visa, you must require that the applicant submit a letter indicating that he or she plans to resign the position he or she holds, plans to permanently separate from her or his position abroad, and intends to immigrate to the United States within the six month validity of the immigrant visa.  If the applicant does not intend to permanently resign his or her position and immigrate to the United States to reside, you should notify the COM or COM designee and request reconsideration of the COM approval.  An applicant’s failure to depart within the validity of the SIV is not inconsistent with the requirement that the applicant has experienced an ongoing serious threat, nor is it necessarily indicative of misrepresentation to the COM.  However, an officer interviewing an SQ applicant with a previously issued and unused SIV must closely examine the applicant's current intent to immigrate.

(5)  Fees:  Section 1244(d) of Public Law 110-181 and section 602(b)(4) of Division F, Title VI, of Public Law 111-8 provide that neither the Secretary of State nor the Secretary of Homeland Security may charge an alien who meets the criteria in 9 FAM 502.5-12(B) paragraph a(1) any U.S. government fee in connection with an application for, or issuance of, an SIV.  Note that an alien whose SIV status is based on conversion of a petition from SI1 to SQ1 status (see 9 FAM 502.5-12(B) paragraph b(7)(c)) must pay such fees.

(6)  Passports:  Section 1244(d) and section 602(b)(4) further provide that the Secretary of State must make a reasonable effort to ensure that aliens who are issued SIVs under either section 1244 or section 602(b) are provided with the appropriate series Iraqi or Afghan passport, as applicable, necessary to enter the United States. Posts are reminded of the waiver provisions of 22 CFR 42.2(g), and are encouraged to contact CA/VO/F if it is not practical for an applicant to await passport issuance.

(7)  Cases Converted From Special Immigrant Translator or Interpreter (SI1) to Special Immigrant Status (SQ1):

(a)  You may encounter a visa application for a principal alien whose approved petition for SI1 status under section 1059 of Public Law 109-163, as amended, has been converted to an approved petition for SQ1 status under section 1244 of Public Law 110-181, as amended. In authorizing the conversion of these petitions when a visa is not immediately available with respect to SI1 status, Congress exempted the self-petitioning alien from the qualification requirements for SQ1 status other than the numerical limitations.

(b)  In reviewing the qualifications of a principal alien whose petition has been converted from SI1 to SQ1, you must consider the criteria outlined in 9 FAM 502.5-11(B) paragraph a(1), not those found in 9 FAM 502.5-12(B) paragraph a(1), to the extent that they differ.  Unless you have specific, substantial evidence of either misrepresentation in the petition process or facts unknown to USCIS at the time of petition approval indicating that the alien does not meet the criteria for SI1 status listed in 9 FAM 502.5-11(B) paragraph a(1), you generally would have no reason to return the petition to USCIS.  Note that, in the case of a national of Afghanistan whose petition has been converted from SI1 to SQ1 status, you may not return the petition to USCIS based only on a lack of Iraqi nationality or citizenship since Afghan nationality is a qualification ground listed in 9 FAM 502.5-11(B) paragraph a(1).

(c)  The conversion provision did not authorize a fee waiver.  An individual whose case is converted from 1059 to 1244 must pay all required fees. SQ1 visas issued in converted cases are to be valid for a maximum of six months.

(8)  Representation:

(a)  The National Defense Authorization Act for FY 2014, signed on December 26, 2013, altered the Iraqi and Afghan SIV programs by allowing representation.  Section 1244 of Public Law 110-181, the National Defense Authorization Act for Fiscal Year 2008, as amended, and section 602(b) of Division F, Title VI, of the Omnibus Appropriations Act, 2009, as amended, Public Law 111-8, authorize Iraqi and Afghan SQ applicants to have attorneys or other accredited representatives present during all interviews and examinations throughout the SIV process, including the COM application process.  Any such representation is not to be at U.S. government expense.

(b) Posts should establish policies for allowing attorneys/representatives of SQ applicants access to waiting rooms to be present during interviews, taking into consideration such factors as a particular post’s physical layout and any space limitations or special security concerns.  Posts should not accede to requests for remote representation by attorneys or representatives via video or teleconferencing.

(c)  During visa interviews, an attorney’s or representative’s presence does not have any impact on the applicant’s obligation to respond to questions.  The applicant, not the attorney/representative, must answer all of the questions.  The attorney/representative can ask the consular officer to clarify a confusing question prior to the applicant answering the question, but the consular officer has discretion to rephrase a question or to ask the applicant to answer the original question.  The attorney/representative should not instruct the applicant not to answer a question, except on the narrow ground of protecting attorney-client privilege if the applicant is represented by an attorney.  The consular officer should not ask the applicant what he/she discussed with his/her attorney prior to coming to the interview.  Failure to provide requested information could warrant a 221(g) refusal.  Consular officers need not allow applicants to consult with the attorney/representative before answering a question during the interview, except where the attorney wishes to advise his client on a point of law.  After providing an initial and full answer to the best of his/her knowledge, the applicant may then consult with his/her representative and provide follow up information or clarification.  The applicant and his/her representative do not need to be given a private location to consult.  If the information provided after a consultation with the attorney/representative contradicts the information provided in the initial response, the consular officer should exercise his/her best judgment in weighing the credibility of the response as he/she would in other situations.

(d) When handling correspondence, as with any visa case where the applicant has elected to use an attorney or other accredited representative, you must be satisfied that an attorney-client relationship exists or that there is a comparable relationship with a non-attorney representative as outlined in 9 FAM 603.2-9.  For COM applications where the applicant has elected to use an attorney or other representative, the NVC will ensure that form G-28 or other documentary evidence of the attorney-client relationship or comparable relationship with a non-attorney representative is included in its transmittals to Embassies Baghdad and Kabul.