UNCLASSIFIED (U)

9 FAM 502.5

(U) Special Immigrants

(CT:VISA-1953;   03-20-2024)
(Office of Origin:  CA/VO)

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

(CT:VISA-1657;   11-30-2022)

(U) A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, except for Certain Employees or Former Employees of the U.S. Government Abroad (see 9 FAM 502.5-3 below).  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  (U) Fourth Preference Special Immigrants – Religious Workers

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

9 FAM 502.5-2(A)(1)  (U) 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)  (U) 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)  (U) Classification Codes - Religious Worker Classifications

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for religious workers:

SYMBOL

CLASS

SECTION OF LAW

SD1

Minister of Religion

INA 101(a)(27)(C)(ii)(I) & INA 203(b)(4).

SD2

Spouse of SD1

INA 101(a)(27)(C)(ii)(I) & INA 203(b)(4).

SD3

Child of SD1

INA 101(a)(27)(C)(ii)(I) & INA 203(b)(4).

9 FAM 502.5-2(C)  (U) In General

(CT:VISA-1657;   11-30-2022)

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

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

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

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

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

(CT:VISA-1860;   11-03-2023)

a. (U) Religious Denomination, Bona Fide Organization:

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

(a)  (U) Some form of ecclesiastical government;

(b)  (U) A recognized creed and form of worship;

(c)  (U) A formal code of doctrine and discipline;

(d)  (U) Religious services and ceremonies;

(e)  (U) Established places of religious worship; and

(f)   (U) Religious congregations; or

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

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

b. (U) Two-Year Member of Religious Organization:  An applicant 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.  (U) Two Years Carrying on Vocation or Religious Work:  DHS relies on the evidence submitted by the petitioner regarding the applicant’s qualifications as well as those of the organization.  If you learn that the applicant’s activities in the immediately preceding two years were not related to religious functions, you should review the activities for the two years immediately before visa application to evaluate if the applicant 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,  have met the requirement of continuous practice as a minister.  Activities 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)  (U) Intended Service in the United States (Religious Workers)

(CT:VISA-1303;   06-17-2021)

a. (U) Applicant’s Services Needed by Religious Denomination:  Applicants 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)  (U) The number of ministers and staff currently serving the church (i.e., has the number diminished or increased?);

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

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

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

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

b. (U) Applicant Entering United States Solely to Carry Out Ministerial Vocation or Other Religious Work:  Applicants 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)  (U) 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)  (U) Deacon May Qualify:  A deacon of any recognized religious sect or denomination may be  a minister of religion within the meaning of INA 101(a)(27)(C) when the following conditions are present:

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

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

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

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

(3)  (U) Ordained Buddhist Monk:

(a)  (U) 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)  (U) 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, you should consider 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)  (U) Professional Religious Workers: 

(a)  (U) 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 in a professional capacity, or as a minister.”

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

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

(i)     (U) “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)    (U) “Religious occupation means an occupation that meets all the following requirements:

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

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

·         (U) 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.

·         (U) 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.  (U) Petitioning Church Capable of Compensating Beneficiary Ensuring Supplemental Employment Not Likely:  To assure that an applicant will enter the United States solely to carry on a religious vocation, particularly in smaller churches, DHS requires evidence such as the following:

(1)  (U) Bank letters;

(2)  (U) Recent audits;

(3)  (U) Church membership figures; and/or

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

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

(CT:VISA-1860;   11-03-2023)

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

    (U) Accompanying or following-to-join spouses and children of a fourth preference applicant 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 after visa issuance but before entering the United States, or a child born of a marriage which existed when the principal applicant was admitted to the United States, is entitled to employment-based fourth preference status.

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

9 FAM 502.5-2(G)  (U) Nonministers

(CT:VISA-1657;   11-30-2022)

(U) IVs for individuals in a religious vocation either in a professional or nonprofessional capacity; or a religious occupation in a professional or nonprofessional capacity as described in 9 FAM 502.5-2(C) paragraph 2(b) or 2(c) above, as well as derivative applicants, must be issued and used before midnight on February 17, 2022.  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 February 17, 2022.  This restriction does not impact ministers described in 9 FAM 502.5-2(C) paragraph (2)(a) and accompanying relatives.  This is not a permanent program but rather a program with a set end date; see the current visa bulletin for details about whether visas are authorized under this program.

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

9 FAM 502.5-3(A)  (U) Statutory and Regulatory Authorities and Classification Codes

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

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) United States Code

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-3(A)(4)  (U) Public Laws

(CT:VISA-1907;   02-09-2024)

(U) 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 Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, sec. 203 as amended; National Defense Authorization Act for Fiscal Year 2024, Public Law 118-31, sec. 5104.

9 FAM 502.5-3(A)(5)  (U) Classification Codes

(CT:VISA-1907;   02-09-2024)

a. (U) 22 CFR 42.11 identifies the following classification symbols for former employees of the U.S. government abroad:

SYMBOL

CLASS

SECTION OF LAW

SE1

Certain Employee or Former Employee of the U.S. Government Abroad

INA 101(a)(27)(D) & INA 203(b)(4).

SE2

Spouse of SE1

INA 101(a)(27)(D) & INA 203(b)(4).

SE3

Child of SE1

INA 101(a)(27)(D) & INA 203(b)(4).

SS1

Surviving Spouse or Child of an Employee of the United States Government Abroad

INA 101(a)(27)(D)(ii)

b. (U) Government Employee Immigrant Visas under Sec. 5104 of the 2024 NDAA (Public Law 118-31, previously known as the "GRATEFUL Act"): On December 22, 2023, the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118-31) was signed into law.  A visa issued to an IV applicant pursuant to Section 5104 of the Act for whom a visa is not otherwise immediately available under INA 203(b)(4), should bear the appropriate visa classification symbol, in accordance with the following:

SYMBOL

CLASS

SECTION OF LAW

GS1

Surviving Spouse or Child of Employee of the U.S. Government Abroad

INA 101(a)(27)(D)(ii), Sec. 5104 of the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31), & Sec. 203(d) of the Nicaraguan Adjustment and Central American Relief Act, 1997 (Pub. L. 105-100) as amended.

GV1

Certain Employee/Former Employee of the U.S. Government Abroad

INA 101(a)(27)(D)(i), INA 203(b)(4), Sec. 5104 of the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31), & Sec. 203(d) of the Nicaraguan Adjustment and Central American Relief Act, 1997 (Pub. L. 105-100) as amended.

GV2

Spouse of GV1

INA 101(a)(27)(D)(i), INA 203(b)(4), Sec. 5104 of the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31), & Sec. 203(d) of the Nicaraguan Adjustment and Central American Relief Act, 1997 (Pub. L. 105-100) as amended.

GV3

Child of GV1

INA 101(a)(27)(D)(i), INA 203(b)(4), Sec. 5104 of the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31), & Sec. 203(d) of the Nicaraguan Adjustment and Central American Relief Act, 1997 (Pub. L. 105-100) as amended.

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

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

(CT:VISA-1860;   11-03-2023)

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

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

(3)  (U) 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 applicant who is the employee of and hired through a foreign government also may qualify for special immigrant status if the applicant 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) below.

b. (U) 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.  (U) 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 U.S. government employees for purposes of SE-1 special immigrant status.  Time worked as a Peace Corps PSC before November 21, 2011, does not count toward such status. 

d. (U) U.S. Armed Forces Service:  An individual serving in the U.S. Armed Forces abroad is “an employee of the U.S. government abroad.”

e. (U) Employment as or with Private Contractor; Foreign Government Employees:

(1)  (U) 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 an SIV.  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, they generally do 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.  Applicants to the Iraq and Afghan Special Immigrant Visa programs must meet different requirements, discussed in 9 FAM 502.5-12 below.

(2)  (U) 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)  (U) Employee of Foreign Government:  Where a foreign government requires that it or one of its agencies be the technical employer of some or all its nationals who work for the U.S. government in that country, an applicant may qualify for special immigrant status if the applicant 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: 

(a)  (U) the department's or agency’s right to control the way the applicant did the work; the source of the equipment and other materials needed for the applicant to accomplish the work;

(b)  (U) the location of the work; the duration of the relationship between the applicant and the department or agency; whether the department had the right to assign additional projects to the applicant; and

(c)  (U) the extent of the department's or agency’s discretion over when and how long the applicant worked; the method of payment;

(d)  (U) whether the work was part of the regular work of the department or agency.

f.  (U) 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/DO/DL as needed.  All relevant employment information must be included in the AO request narrative.  Applicants to the Iraq and Afghan SIV programs must meet different requirements, discussed in 9 FAM 502.5-12 below.

g. (U) 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) U.S. Government Service Abroad (U.S. Government Employee Special Immigrant)

(CT:VISA-1657;   11-30-2022)

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

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

c.  (U) 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)  (U) Spouses and Children (U.S. Government Employee Special Immigrant)

(CT:VISA-1860;   11-03-2023)

a. (U) 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 applicant.

b. (U) The Emergency Security Supplemental Appropriations Act, 2021, Sec. 403(a) amends INA 101(a)(27)(D) to provide for SIVs for surviving spouses and children of U.S. government employees abroad who performed faithful service for a total of not less than 15 years or were killed in the line of duty. 

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

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

(CT:VISA-1882;   12-14-2023)

(U) The Immigration Act of 1990 categorizes this class, like most other special immigrant classes described in INA 101(a)(27), 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 based on the employment-based fourth preference classification requires two sequential steps, before visa issuance, rather than the one-step process associated with other categories:

(1) (U) 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) above.

(a)  (U) Principal Officer’s Recommendation:  For an applicant to acquire SE-1 special immigrant status, their principal officer must recommend the granting of special immigrant status to the employee or honorably retired former employee based on exceptional circumstances, and the Secretary of State must approve the recommendation and find it in the national interest to grant the status.  By recommending an employee, the principal officer establishes that the employee has provided faithful service.  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 below.

(b)  (U) Supporting Evidence:  CA/VO/DO/DL determines each case upon its individual merits.  In determining whether an applicant meets the "exceptional circumstances" requirement, CA/VO/DO/DL uses the standards cited in 9 FAM 502.5-3(C)(2) paragraph d below.  Consequently, post must identify and document specific circumstances of an applicant’s case that establish eligibility for 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.  Neither is it 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 AO request narrative that clearly relates to the factors cited in 9 FAM 502.5-3(C)(2) below and should avoid general descriptions of the applicant's service history.  Supporting evidence should be submitted with the initial AO request.

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

(2)  (U) Step Two – Petition for Classification Under INA 203(b)(4)

(a)  (U) Petition Overview: The second step is seeking classification under INA 203(b)(4) as an employment-based fourth preference immigrant.  Classification as an employment-based fourth preference immigrant requires the filing of a petition to accord such status.  Unlike applicants 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 their petition (Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or Honorably Retired Former Employee of the U.S. Government Abroad), at a consular office.  See 9 FAM 502.5-3(C)(1) paragraph 3 below.

(b)  (U) Filing the Petition:

(i)     (U) In Person: Form DS-1884 can be filed in person at a consular section with a consular officer.

(ii)    (U) Via Mail or Email: Form DS-1884 can be filed with the consular section by mail or email.

(iii)    (U) Timing of Petition Filing: The applicant may not file such a petition, however, until notified that the Secretary of State has approved special immigrant status.  See 9 FAM 502.5-3(C)(1) paragraph 1(c) above.

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

(a)  (U) Fees:  There is no fee for the filing the DS-1884 petition.  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.  There is, however, a fee for adjudicating a special IV application as a U.S. government employee, found in the Schedule of Fees (22 CFR 22.1) under sections 32(c).

(b)  (U) Establishing Priority Date:  The priority date of a petition filed by a special immigrant government employee is the date their Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or honorably retired Former Employee of the U.S. Government Abroad, is properly filed with a consular section.   For purposes of determining the date Form DS-1884 is accepted, the filing date is the date on which a properly completed form is received according to post’s procedures in the designated email inbox, post’s physical mail receipt facility (as shown by the date stamped), or in person by designated consular staff.  Post should not use drop boxes, as the date of receipt may not be reliably determined.

(c)  (U) Recording Priority Data: When processing the receipt of the DS-1884, consular staff must enter the filing date, as determined above, in the following locations:

(i)     (U) In the “Date Petition Filed” box of the DS-1884;

(ii)    (U) In the “Priority Date” field of the Case Tab in IVO;

(iii)    (U) In a case note in IVO, which also indicates the method of receipt, e.g., “DS-1884 received in ConsularRosslyn@state.gov on 03-SEP-2023.” If the case note is entered more than five business days after the filing date, consular staff must also scan the DS-1884 along with evidence of the filing date (e.g., printout of the email or the mailroom date stamp on the envelope) and the case note must be entered by a cleared American. 

(d)  (U) Petition Approval:

(i)     (U) 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 42.34(b)(3).  The bases for approval are that the applicant has:

(A)    (U) Been accorded status as a special immigrant under INA 101(a)(27)(D) before filing the petition; and

(B)    (U) Filed the petition within one year of acquiring such status. 

(ii)    Unavailable

(iii)    (U) If all the above factors are present, you have no basis to deny 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), you must submit an AO request to CA/VO/DO/DL.  See 9 FAM 502.5-3(C)(2) paragraph e(3) below regarding extensions of validity.

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

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

(ii)    (U) CA/VO acts on behalf of the Secretary of State in approving the principal officer’s recommendation that an applicant 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)  (U) Approval Standards for U.S. Government Employee Special Immigrant Status under INA 101(a)(27)(D)

(CT:VISA-1860;   11-03-2023)

a. (U) Defining “Honorably Retired”:  A former noncitizen employee of the U.S. government abroad seeking classification under INA 101(a)(27)(D) must establish that they are “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, is “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. (U) Defining “Faithful Service”:  A noncitizen employee 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 employee’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 considering:

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

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

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

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

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

d. (U) “Exceptional Circumstances” Requirement:

(1)  (U) The principal officer's recommendation that an employee be granted special immigrant status under INA 101(a)(27)(D) must demonstrate the existence of “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 employee be granted the benefits of INA 101(a)(27)(D) simply as recognition for the requisite years of service.

(2)  (U) 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 clearly detail the specifics of how the applicant 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 demonstrates that there were “exceptional circumstances” present in an applicant employee’s case and describes the circumstances in full detail.

(3)  (U) Categories of “Exceptional Circumstances”:  “Exceptional circumstances” fall broadly within the two categories below. 

(a)  (U) Prima Facie Indicators of “Exceptional Circumstances”:  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."  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)     (U) Diplomatic relations between the employee’s country of nationality and the United States have been severed;

(ii)    (U) Diplomatic relations between the country in which the employee worked and the United States have been severed;

(iii)    (U) The country in which the employee worked, and the United States have strained relations, and the employee may be subjected to retribution by the local, state, federal, or other official government body merely because of association with the U.S. government, or where the employee may be pressured to divulge information available to them which would be contrary to U.S. national interests; and/or

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

(b)  (U) Strong Indicators of “Exceptional Circumstances”:  In some cases, an employee has during “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:

(i)     (U) It is believed that continued service to the U.S. government might endanger the life of the employee;

(ii)    (U) The applicant employee has fulfilled responsibilities or given heroic service or 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; services involving high visibility in a sensitive post; 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.

(iii)    (U) The employee has been awarded a global or a regional “Foreign Service National of the Year” Award;

(iv)   (U) The employee has disclosed waste, fraud or abuse, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation within the Department or other U.S. government agency, if such disclosure results in significant action by the Department or other U.S. government agency against an offending party, such as termination or severance of a contractual relationship, or criminal charges if credible or sustained against any person or entity; and/or

(v)    (U) The employee has served the U.S. government for a period of twenty years or more.

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

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

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

(c)  (U) 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. (U) Requiring Immediate Intent to Immigrate: 

(1)  (U) Special immigrant status was not designed for use as an “insurance policy” to protect an employee against the possibility of political or economic vicissitudes in the future.  Nor was it the intent of Congress that the principal employee obtain special immigrant status solely to facilitate the entry of dependents into the United States when it is the employee’s intent to return overseas to resume employment with the U.S. government.  For these reasons, the regulations in 22 CFR 42.34(b) limit the validity of special immigrant status to one year, and the regulations in 22 CFR 42.34(b)(4) limit the validity of petitions 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)  (U) Established an intention to resign the position being held; and

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

(2)  (U) Certification of Active Intent to Pursue IV Application:  The text of the AO request must clearly state that the employee intends to immediately immigrate to the United States as follows:

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

(b)  (U) 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)  (U) 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 employee’s departure in compliance with the regulations and above guidance.  If the principal officer concludes that circumstances in a case are such that an extension of the validity of SIV status or of the petition would be in the national interest, they are 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)  (U) 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 consider this when submitting their recommendations.

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

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

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

(CT:VISA-1657;   11-30-2022)

a. (U) 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.  If not explicitly stated in the text of the AO request, the principal officer's electronic signature of the AO request will show their recommendation.  The principal officer's recommendation and signature establishes that the employee has provided faithful service.  Therefore, it is important for consular sections to ensure that the electronic signature for their post is kept current.   

b. (U) Form of Submission:  Post must submit the recommendation and a summary of the evidence to support the recommendation to CA/VO/DO/DL via an AO request sent through the IVO system.  Consular sections will have to create a case in the IVO system to submit the AO request.  The principal officer must sign the recommendation, and it must include:

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

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

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

(4)  (U) Certification of the employee's intent to pursue an IV 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)  (U) The current principal officer’s recommendation.  By recommending an  employee, the principal officer establishes that the employee has provided faithful service.

(6)  (U) Clear description with examples of how the employee has met the "exceptional circumstances" provision, including the specific "exceptional circumstances" FAM citation(s) under which the applicant employee qualifies.

(7)  (U) A summary of any disciplinary actions in the employee's file along with explicit confirmation that the principal officer believes the employee still provided "faithful service" to the mission despite the disciplinary record.  The IV unit should scan into IVO all supporting documentation regarding disciplinary actions.

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

(CT:VISA-1657;   11-30-2022)

a. (U) 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 before 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, and a pre-screening panel's recommendation of an employee for SIV status does not guarantee that the Department will approve the principal officer's recommendation.

b. (U) 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.  (U) 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 502.5-3(D)  (U) Visa Availability under Section 5104 of the National Defense Authorization Act (NDAA) for Fiscal Year 2024 (Public Law 118-31, formerly GRATEFUL Act)

(CT:VISA-1907;   02-09-2024)

a. (U) Section 5104 of the National Defense Authorization Act (NDAA) for Fiscal Year 2024 (Public Law 118-31) included language from The Granting Recognition to Accomplished Talented Employees For Unwavering Loyalty (GRATEFUL) Act.  The GRATEFUL Act makes available up to 3,500 additional visas in FY 2024 and up to 3,000 visas each year thereafter to be used by special immigrants described in INA 101(a)(27)(D) (qualifying U.S. government employees abroad and surviving spouses and children).

b. (U) These visas are available for certain employees of the U.S. government abroad if a visa is not immediately available for issuance in the numerically limited Employment-Based Fourth Preference (EB-4) category. The visas will be reflect visa code GV, or GS in the case of surviving spouses and children.

(1)  (U) Section 5104 authorizes visa issuance outside the EB-4 numerical cap by amending the Nicaraguan Adjustment and Central American Relief Act (NACARA) to reallocate a portion of Diversity Visa (DV) numbers to certain employees of the U.S. government abroad for whom an EB-4 visa is not available, in addition to adjustment of status offsets originally authorized by NACARA. 

(2)  (U) Under these amendments, the number of GV visas issued each year will be deducted from the number of diversity visas available for the following fiscal year. If all 3,500 numbers are used in FY 2024, then the DV-2025 limit will be reduced by at least 3,500. If all 3,000 numbers are used in FY 2025, then the DV-2026 limit will be reduced by at least 3,000.  These reductions are in addition to the normal NACARA reductions to the DV limit.  GV allocations are not subject to per-country ceilings (see 9 FAM 503.4-3(C)(3)).

c. (U) All applicants, whether ultimately issued a special immigrant visa from the numbers allocated under the EB-4 category or those made available under Section 5104 (IVO visa class GV, or GS in the case of surviving spouses and children), must continue to qualify and be found eligible for the visa in accordance with U.S. law and Department regulations.  All applicants must still apply and be approved for special immigrant status based on the process described in 9 FAM 502.5-3(C).

d. Unavailable

e. Unavailable

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

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

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

(CT:VISA-1;   11-18-2015)

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

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

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 42.32(d)(3).

9 FAM 502.5-4(A)(3)  (U) Public Law

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-4(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for former Panama Canal Employees:

SYMBOL

CLASS

SECTION OF LAW

SF1

Former Employee of the Panama Canal Company or Canal Zone Government

INA 101(a)(27)(E) & INA 203 (b)(4).

SF2

Spouse or Child of SF1

INA 101(a)(27)(E) & INA 203 (b)(4).

SG1

Former Employee of the U.S. Government in the Panama Canal Zone (Panamanian National)

INA 101(a)(27)(F) & INA 203 (b)(4).

SG2

Spouse or Child of SG1

INA 101(a)(27)(F) & INA 203 (b)(4).

SH1

Former Employee of the Panama Canal Company or Canal Zone Government (Five Years of Service)

INA 101(a)(27)(G) & INA 203(b)(4).

SH2

Spouse or Child of SH1

INA 101(a)(27)(G) & INA 203(b)(4).

9 FAM 502.5-4(C)  (U) Panama Canal Employees

(CT:VISA-1829;   09-12-2023)

a. (U) 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)  (U) INA 101(a)(27)(E):  An immigrant, and their 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)  (U) INA 101(a)(27)(F):  An immigrant, and their accompanying spouse and children, who is a Panamanian national and:

(a)  (U) 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)  (U) 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)  (U) INA 101(a)(27)(G):  An immigrant, and their 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. (U) Panama Canal Treaty Special Immigrants May Also Qualify under INA 101(a)(27)(D):  An applicant 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) above.

c.  (U) 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 applicants employed as police, firemen, or security guards by the Canal Company or the Canal Zone Government.

d. (U) Posts Outside Panama to Obtain Opinion of Department and Embassy Before Adjudication:  In view of the possible difficulties in verifying the periods and nature of employment and residence, posts other than Embassy Panama receiving applications from applicants seeking benefits under INA 101(a)(27)(E), (F), or (G) should obtain the opinion of the Embassy at Panama City and L/CA before adjudicating the application.

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

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

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

(CT:VISA-1180;   12-08-2020)

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

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

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-5(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for foreign medical graduates:

SYMBOL

CLASS

SECTION OF LAW

SJ1

Foreign Medical Graduate (Adjustment Only)

INA 101(a)(27)(H).

SJ2

Spouse or Child of SJ1

INA 101(a)(27)(H) & INA 203(b)(4).

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

(CT:VISA-1829;   09-12-2023)

(U) INA 101(a)(27)(H) permits certain noncitizen 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 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(D)  (U) Spouse and Child

(CT:VISA-1829;   09-12-2023)

a. (U) 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. (U)Processing: The spouse or child of such an adjustee cannot be issued a derivative special IV 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 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 or the beneficiary.

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

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

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

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

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 42.32(d)(5).

9 FAM 502.5-6(A)(3)  (U) Public Laws

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-6(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for retired international organization and NATO civilian employees:

SYMBOL

CLASS

SECTION OF LAW

SK1

Retired International Organization Employee

INA 101(a)(27)(I)(iii) & INA 203(b)(4).

SK2

Spouse of SK1

INA 101(a)(27)(I)(iv) & INA 203(b)(4).

SK3

Unmarried Son or Daughter of SK1

INA 101(a)(27)(I)(i) & INA 203(b)(4).

SK4

Surviving Spouse of a Deceased International Organization Employee

INA 101(a)(27)(I)(ii) & INA 203(b)(4).

SN1

Retired NATO6 Civilian Employee

INA 101(a)(27)(L) & INA 203(b)(4).

SN2

Spouse of SN1

INA 101(a)(27)(L) & INA 203(b)(4).

SN3

Unmarried Son or Daughter of SN1

INA 101(a)(27)(L) & INA 203(b)(4).

SN4

Surviving Spouse of Deceased NATO6 Civilian Employee

INA 101(a)(27)(L) & INA 203(b)(4).

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

(CT:VISA-1860;   11-03-2023)

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

(1)  (U) Specific Criteria to Establish Entitlement to Special Immigrant Status under INA(a)(27)(I) or (L):  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)  (U) Employment with, or relationship to an employee of, an international organization or NATO;

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

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

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

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

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

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

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

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

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

(5)  (U) 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(C) paragraph a(4) above.

(6)  (U) No Derivative Status:  Except for applicants 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)  (U) INTELSAT Employees:  According to INA 101(a)(27)(I), INTELSAT is  an International Organization. See section 301 of Public Law 106-396.

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

(1)  (U) 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(C) paragraph a above.

(2)  (U) Timeliness of Petition Filing for Beneficiaries under INA 101(a)(27)(I)(ii) or INA 101(a)(27)(I)(iii):  INA 101(a)(27)(I)(ii) and (iii) require that the petition be filed no later than six months after the date of the death of a an officer or employee of an international organization for an immigrant seeking status as the surviving spouse of such officer or employee of an international organization or no later than six months after the date of retirement for an immigrant seeking status as a retired officer or employee of an international organization.  

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

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

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

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 42.32(d)(6).

9 FAM 502.5-7(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbol for juvenile court dependents:

SYMBOL

CLASS

SECTION OF LAW

SL1

Juvenile Court Dependent (Adjustment Only)

INA 101(a)(27)(J) & INA 203(b)(4).

9 FAM 502.5-7(C)  (U) Certain Juvenile Court Dependents

(CT:VISA-1829;   09-12-2023)

(U) The Department of State and Related Agencies Appropriations Act, 1998 changed the definition of a Special Immigrant Juvenile (SIJ) and divested consular officers of the authority to issue SIJ visas.  Due to this change, since November 26, 1997, SIJ has been an adjustment-only category as reflected in 22 CFR 42.11.  Under no circumstances should you issue an SIJ visa.

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

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

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

(CT:VISA-1;   11-18-2015)

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

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

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 42.32(d)(7).

9 FAM 502.5-8(A)(3)  (U) Public Law

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-8(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for members of the U.S. armed forces recruited abroad:

SYMBOL

CLASS

SECTION OF LAW

SM1

Person Recruited Outside the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces for 12 Years

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

SM2

Spouse of SM1

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

SM3

Child of SM1

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

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

(CT:VISA-1860;   11-03-2023)

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

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

(a)  (U) Applicant 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)  (U) Applicant 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)  (U) Applicant’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)  (U) Executive department under which the applicant has served or is serving has recommended the granting of special immigrant status.

(2)  (U) Derivative Status:  The accompanying or following-to-join spouse or child of an applicant granted special immigrant status under INA 101(a)(27)(K) may also be accorded the same special immigrant classification. This may occur whether 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 when the principal applicant’s special immigrant application was approved.  If the spouse or child is in the United States but was not included in the principal applicant’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 applicant must file Form I-824, Application for Action on an Approved Application or Petition.

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

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

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

(a)  (U) 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)  (U) 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)  (U) 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 adjudication, IV unit should schedule a visa interview appointment and bring the case to a conclusion without a request for or allocation of a visa number.

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

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

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

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

(CT:VISA-1;   11-18-2015)

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

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

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-9(A)(3)  (U) Public Law

(CT:VISA-1;   11-18-2015)

(U) Public Law 106-536.

9 FAM 502.5-9(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for international broadcasting employees:

SYMBOL

CLASS

SECTION OF LAW

BC1

Broadcaster in the U.S. Employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a Grantee of Such Organization

INA 101(a)(27)(M) & INA 203(b)(4).

BC2

Accompanying Spouse of BC1

INA 101(a)(27)(M) & INA 203(b)(4).

BC3

Accompanying Child of BC1

INA 101(a)(27)(M) & INA 203(b)(4).

9 FAM 502.5-9(C)  (U) Certain International Broadcasting Employees

(CT:VISA-1860;   11-03-2023)

a. (U) Special Immigrant Classification as International Broadcasting Employee:

(1)  (U) 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)  (U) A broadcaster in the United States for the International Broadcasting Bureau of the U.S. Agency for Global Media (USAGM); or

(b)  (U) For a grantee of the USAGM.

(2)  (U) Defining Broadcaster:  The DHS defines “broadcaster” as an applicant intending to work in the United States for the BBG or a BBG grantee as a:

(a)  (U) Reporter;

(b)  (U) Writer;

(c)  (U) Translator;

(d)  (U) Editor;

(e)  (U) Producer or announcer for news broadcasts;

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

(g)  (U) News analysis specialist.

(h) (U) The definition does not include applicants seeking purely technical or support positions with the BBG or BBG grantee.

(3)  (U) Defining BBG Grantee:  BBG grantee means:

(a)  (U) Radio Free Asia, Inc (RFA); and

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

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

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

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

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

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

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

(ii)    (U) The experience held by the  broadcaster;

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

(iv)   (U) That hiring the broadcaster is following other laws governing employment and discrimination prevention; and

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

(2)  (U) Petition:  If the BBG or a BBG grantee wishes to employ an applicant 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 USCIS.

(3)  (U) 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 USCIS.

(4)  (U) 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  (U) Fourth Preference Special Immigrants – Victims of Terrorism

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

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

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 42.32(d)(9).

9 FAM 502.5-10(A)(3)  (U) Public Law

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-10(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for victims of terrorism:

SP

Beneficiary of a Petition or Labor Certification Application Filed Prior to September 11, 2001, if the Petition or Application was Rendered Void Due to the Terrorist Acts of September 11, 2001, or the Spouse, Child of such Beneficiary, or the Grandparent of a Child Orphaned by a Terrorist Act of September 11, 2001

Section 421 of Public Law 107-56.

9 FAM 502.5-10(C)  (U) Victims of Terrorism

(CT:VISA-1860;   11-03-2023)

(U) See 9 FAM 502.7-4 for an overview of the effects of USA PATRIOT Act provisions on IV 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)  (U) Entitlement to Special Immigrant Status:

(a)  (U) 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 applicants who can demonstrate:

(i)     (U) 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)    (U) 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)  (U) 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 applicant had not died. The petition must have been filed before September 11, 2001.  The relationship of a derivative spouse or child to the principal applicant must have existed on September 10, 2001.  The applicant must demonstrate that the death of the principal applicant 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)  (U) Accompanying and Following-To-Join Dependents:

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

§  (U) The relationship to the principal applicant existed on September 10, 2001; and

§  (U) The applicant is accompanying or following-to-join the principal applicant no later than September 11, 2003.

(ii)    (U) Child Over Age 21:  The child of an applicant 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)    (U) Grandparents: 

·         (U) The grandparent of an applicant who qualifies under section 421 of the USA Patriot Act may be granted special immigrant status if both parents of the grandchild died because of the September 11 attacks and if one of the parents was a U.S. citizen, U.S. national or LPR applicant 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.

·         (U) 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 they are 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.

·         (U) 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, you 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)  (U) Beneficiary of USA Patriot Act with Approved Labor Certification:

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

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

(iii)    (U) Processing an Applicant under 421(b)(1)(A)(ii) of the USA Patriot Act:  You must follow standard IV 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)  (U) Applying for Special Immigrant Status:

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

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

(c)  (U) Processing Applications Under Section 421 of the USA Patriot Act:  Consular sections will be notified of Form I-140, Immigrant Petition for Alien Worker, approval via National Visa Center.  You 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 ineligibility under INA 212(a)(4).  Qualified applicants should be issued:  "SP - beneficiary of section 421, USA PATRIOT ACT."

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

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

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

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

(CT:VISA-1;   11-18-2015)

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

9 FAM 502.5-11(A)(2)  (U) Public Law

(CT:VISA-1384;   10-05-2021)

(U) 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; Emergency Security Supplemental Appropriations Act, 2021, Public Law 117-31, Sec. 404.

9 FAM 502.5-11(B)  (U) Classification Codes

(CT:VISA-1829;   09-12-2023)

(U) 22 CFR 42.11 identifies the following classification symbols for special immigrant translators:

SYMBOL

CLASS

SECTION OF LAW

SI1

Certain Persons Employed by the U.S. Government in Iraq or Afghanistan as Translators or Interpreters

Section 1059 of Pub. L. 109-163, as amended.

SI2

Spouse of SI1

Section 1059 of Pub. L. 109-163, as amended.

SI3

Child of SI1

Section 1059 of Pub. L. 109-163, as amended.

9 FAM 502.5-11(C)  (U) Certain Special Immigrant Translators

(CT:VISA-1860;   11-03-2023)

a. (U) Special Immigrant Translator Status:

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

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

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

(ii)    (U) 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)    (U) 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 applicant or, if the applicant claims status based on work under COM authority, a favorable written recommendation from the COM;

(iv)   (U) 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 applicant or by the COM; and

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

(b)  (U) Additional Interview Requirements:  An applicant for special immigrant translator or interpreter status must provide for their interview a written description of their 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, you 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)  (U) Spouses and Children:

(a)  (U) 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)  (U) A surviving spouse or child is also entitled to special immigrant status if the principal applicant 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 applicant.  (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).  You 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)  (U) In issuing a visa to an eligible surviving spouse or child, you 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. (U) Processing Special Immigrant Translator Cases:

(1)  (U) Numerical Limitations: 

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

(b)  (U) 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 numbers that were unused.

(c)  (U) If the numerical limitation for SI1 status has been reached during a given fiscal year, 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), until the numerical limitation specified under section 1244(c) of Public Law 110-181 (8 U.S.C. 1157 note) is reached.

(2)  (U) Petitions:  Applicants 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 their 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)  (U) Approval of Petition under INA 204The approval of a petition under INA 204 establishes prima facie entitlement to status, and the qualifications of the applicant beneficiary are presumed to exist. Unless you have specific, substantive 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(C) paragraph b(2)(c) below), 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 you have further questions, contact the Office of Field Operations (CA/VO/F).

(4)  (U) Cases Converted from SI1 to SQ1:

(a)  (U) You may encounter a visa application for a principal applicant 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 applicant from the qualification requirements for SQ1 status other than the numerical limitations.

(b)  (U) In reviewing the qualifications of a principal applicant whose petition has been converted from SI1 to SQ1, you must consider the criteria outlined in 9 FAM 502.5-11(C) paragraph a(2) above, not/not those found in 9 FAM 502.5-12(C) 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 approval indicating that the applicant does not meet the criteria for SI1 status listed in 9 FAM 502.5-11(C) paragraph a(2) above, you generally would have no reason to return the petition to USCIS.

(c)  (U) 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(C) paragraph a(2) above. 

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

(e)  (U) The surviving spouse or child of an Afghan principal applicant whose approved petition for SI status under section 1059 is revoked or otherwise rendered null due to the principal applicant's death, and who are named in said petition, may have the approved petition for SI status converted to an approved petition for SQ status under section 1244.   

9 FAM 502.5-12  (U) 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)  (U) Statutory and Regulatory Authorities

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

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 42.2(g).

9 FAM 502.5-12(A)(3)  (U) Public Law

(CT:VISA-1953;   03-20-2024)

a. (U) Afghan Program:  The Afghan Allies Protection Act of 2009, Section 602 of Division F, Title VI, of the Omnibus Appropriations Act, 2009, (Public Law 111-8); National Defense Authorization Act for Fiscal Year 2014, Public Law 113-66, Sec. 1219; Consolidated Appropriations Act of 2014, Public Law 113-76, Sec. 7034(o); Emergency Afghan Allies Extension Act of 2014, Public Law 113-160, Sec. 1; Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, Sec. 1227; National Defense Authorization Act for Fiscal Year 2016, Public Law 114-92, Sec. 1216; National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, Sec. 1214; Consolidated Appropriations Act, 2017, Public Law 115-31, Sec. 7083; National Defense Authorization Act for Fiscal Year 2018, Public Law 115-91, Sec. 1213; John S. McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115-232, Sec. 1222; Consolidated Appropriations Act, 2019, Public Law 116-6, Sec. 7076; National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, Sec. 1219; Consolidated Appropriations Act, 2021, Public Law 116-260, Sec. 7034(k)(11); William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, Sec. 1212; Department of State, Foreign Operations, and Related Programs Appropriations Act, 2021 (Div. K, Public Law 116-260), Section 7034(l)(11); Consolidated Appropriations Act, 2021, Section 7034(k)(11) of Public Law 116-260; and Emergency Security Supplemental Appropriations Act, 2021, Public Law 117-31, Secs. 401, 402, 403(b); and Consolidated Appropriations Act, 2023,  Section 7034(d)(9) of Public Law 117-328.

b. (U) Iraqi Program:  National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, Sec. 1244; Public Law 110-242, Secs. 1-2; Public Law 113-42, Sec. 1; National Defense Authorization Act for Fiscal Year 2014, Public Law 113-66, Sec. 1218; and Emergency Security Supplemental Appropriations Act, 2021, Public Law 117-31, Secs. 403(c), 404.

9 FAM 502.5-12(B)  (U) Classification Codes

(CT:VISA-1953;   03-20-2024)

(U) 22 CFR 42.11 identifies the following classification symbols for Iraqi and Afghan nationals employed by the U.S. government in Iraq or Afghanistan:

SYMBOL

CLASS

SECTION OF LAW

SQ1

Certain Iraqis or Afghans Employed by or on Behalf of the U.S. Government

Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8, as amended and Section 1244 of Pub. L. 110-181, as amended.

SQ2

Spouse of SQ1

Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8, as amended and Section 1244 of Pub. L. 110-181, as amended.

SQ3

Child of SQ1

Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8, as amended and Section 1244 of Pub. L. 110-181, as amended.

 

(U) The following classification symbols for surviving spouses or children of Iraqi and Afghan nationals employed by the U.S. government in Iraq or Afghanistan are to be used:

SW1

Surviving Spouse or child of an SQ1- eligible person

Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8, as amended and Section 1244 of Pub. L. 110-181, as amended.

SW2

Spouse of an SW1

Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8, as amended and Section 1244 of Pub. L. 110-181, as amended.

SW3

Child of an SW1

Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8, as amended and Section 1244 of Pub. L. 110-181, as amended.

9 FAM 502.5-12(C)  (U) 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-1953;   03-20-2024)

a. (U) 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 (ISAF) or a Successor Mission:

(1)  (U) Who is Eligible for Special Immigrant Status Under Section 1244 or Section 602(b)?  To obtain approval of a petition for classification as a special immigrant under section 203(b)(4) of the Immigration and Nationality Act (INA) pursuant to section 1244 of Public Law 110-181 or section 602(b) of Division F, Title VI, of Public Law 111-8, a self-petitioning applicant must establish that they:

(a)  (U) Are a national of Iraq or Afghanistan;

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

(i)     (U) 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 before 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)    (U) in the case of a national of Afghanistan, the applicant must have been employed in Afghanistan on or after October 7, 2001, for a period of not less than one year:

·         (U) by, or on behalf of the United States Government; or

·         (U) by the International Security Assistance Force, or a successor mission, in a capacity that required the applicant:

(iii)    (U) while traveling off-base with United States military personnel stationed at the ISAF or a successor mission, to serve as an interpreter or translator for such United States military personnel; or

(iv)   (U) to perform activities for the United States 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)  (U) Has been determined by the appropriate COM or the COM’s designee, to have provided faithful and valuable service to an entity or organization described in 9 FAM 502.5-12(C) paragraph a(1)(b) above, which is documented in a positive recommendation from the employee’s supervisor as defined in 9 FAM 502.5-12(C) paragraph b(3) below and a human resources letter from the entity or organization described in 9 FAM 502.5-12(C) paragraph a(1)(b);

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

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

(f)   (U) 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 ineligibility specified in INA 212(a)(4) relating to "public charge" do not apply.

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

(a)  (U) The COM, or the COM's designee, has primary responsibility for determining whether the employee'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(C) paragraph a(3) below, although the supervisor’s recommendation is an important document to assist in making this determination.

(b)  (U) 9 FAM 502.5-3(C)(2) paragraph b above, 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 their 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 for special immigrant status does not automatically constitute faithful and valuable service.

(3)  (U) Who Qualifies as a Supervisor?

(a)  (U) The supervisor should normally be the U.S. citizen who directly supervised the employee or supervised the company for which the employee works. 

(b)  (U) If it is not possible for a contract or subcontract employee to obtain a recommendation from a U.S. citizen supervisor, then the COM or COM designee may accept a letter from a non-U.S. citizen supervisor.  In such cases it is helpful if the U.S. citizen responsible for the contract or subcontract co-signs the letter and indicates that based on their relationship with the contract or subcontract supervisor, they are confident that the information provided is correct.

(c)  (U) The recommendation should also contain the supervisor’s and any cosigner’s personal and work email addresses and phone numbers so they may be contacted if additional information is needed.

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

(a) (U) To qualify for special immigrant status under section 203(b)(4) of the Immigration and Nationality Act (INA) pursuant to section 1244 of Public Law 110-181 or section 602(b) of Division F, Title VI, of Public Law 111-8, an applicant must have experienced, or be experiencing, an ongoing serious threat as a consequence of their employment by, or on behalf of, the U.S. government or by the ISAF or its successor mission.  This determination must be made by the appropriate COM or the COM’s designee (see 9 FAM 502.5-12(C) paragraph a(1)(d) above).  Iraqi applicants must submit information relative to their 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 applicant has experienced, or is experiencing, an ongoing serious threat as a consequence of employment by, or on behalf of, the U.S. government. 

(b)  (U) The Department has determined that Afghan SIV applicants are inherently under threat (regardless of whether their employment has ended or if they have relocated).  Thus, holding qualifying service in Afghanistan is enough to satisfy the ongoing serious threat requirement.

(c)  (U) The COM, or the COM's designee, is responsible for making the determination of whether an applicant meets the statutory threat requirement.  This determination should not be reassessed during the visa interview.

(5)  (U) Are Spouses and Children Qualified?

(a)  (U) Derivative spouses and children. The spouse and unmarried child(ren) under age 21 of a principal applicant may be eligible for derivative visas and do not count against the cap of special immigrant visas for Afghan or Iraqi nationals  established in law.  The derivative spouse and children may accompany or follow-to-join the principal applicant.  Unmarried sons or daughters may also benefit from the CSPA age-reduction provisions for preference categories, addressed at 9 FAM 502.1-1(D)(5), paragraph d.

(b)  (U) Surviving spouses and children.  Certain surviving spouses and children qualify as principal applicants and count against the cap of special immigrant visas for Afghan or Iraqi nationals established by law.  The surviving spouse or child of a deceased principal applicant; or of a person qualified for special immigrant status (“SQ-eligible person”) who did not submit an application for COM approval but who met the qualifications for special immigrant status at the time of death, may be eligible for status as a principal special immigrant visa applicant. These surviving spouses and children should be classified as SW-1 principal applicants and not as SQ-2 or SQ-3 derivative applicants.  As principal applicants, these surviving spouses and children must still demonstrate that:

·         (U) the deceased principal applicant or SQ-1 eligible person met the eligibility requirements described in 9 FAM 502.5-12(C) paragraph (a)(1) above;

·         (U) they have cleared appropriate screening as described in in 9 FAM 502.5-12(C) paragraph (a)(1)(e) above; and,

·         (U) they are otherwise eligible to receive an immigrant visa as described in in 9 FAM 502.5-12(C) paragraph (a)(1)(f) above.

(i)     (U) COM Applications filed by deceased principal applicant. When the surviving spouse or child was included as a derivative family member on an application submitted by a now-deceased SQ principal applicant  for COM  approval (whether pending or approved), the surviving spouse or child(ren) included in that application remain eligible for a special immigrant visa as a principal applicant.  In the case of pending COM approval applications, evidence must be submitted to establish that the deceased SQ principal applicant qualified for special immigrant status at the time of death for a surviving spouse or child to qualify for a special immigrant visa.  The surviving spouse and each child  of a deceased SQ principal applicant with a pending COM approval application must file this evidence along with a new Form DS-157 with the National Visa Center (NVC) at AfghanSIVApplication@state.gov to continue the process.

(ii)    (U) Initial applications by surviving spouses or children.  If no application was submitted for COM approval by an SQ-eligible Afghan employee prior to that person’s death, the surviving spouse or child of the SQ-eligible person may qualify for special immigrant status as a principal applicant upon initial application.  An applicant applying as the surviving spouse or child of an SQ-eligible person must submit evidence to establish that the SQ-eligible person is deceased, and that the SQ-eligible person qualified for COM approval and special immigrant status at the time of death.  The surviving spouse and each child of an SQ-eligible person must file this evidence along with a new Form DS-157 to the NVC at AfghanSIVApplication@state.gov to begin the process.

(c)  (U) Section 403 of The Emergency Security Supplemental Appropriations Act, 2021 (Public Law 117-31) applies retroactively to eligible Afghan and Iraqi surviving spouses and children even if they have aged out or married since the death of the principal applicant.

(d(U) A surviving child’s eligibility to pursue a COM application should be determined by their status as a child (unmarried and under age 21) either:

(i)     (U) at the time a COM application, was filed by the now-deceased SQ principal applicant; or

(ii)    (U) at the time of the SQ eligible person’s  death if the SQ eligible person had met the requisite employment requirements but no COM application was filed. 

(iii)    (U) Clarifications:  A surviving child who married after the principal applicant filed a COM application but before the principal applicant died, would not qualify because they were no longer a child at the time of the principal applicant's death.  A surviving child who turned age 21 or older or married after the death of the principal applicant would still qualify.  If no COM application was filed, the child must have been under age 21 and unmarried at the time of the SQ eligible person's death.  A spouse or child of a surviving child who qualifies under these provisions may also qualify as a derivate of the surviving child pursuant to INA section 203(d).    

(e(U) To qualify as a surviving spouse, an individual must have remained married to a principal applicant or SQ eligible person at the time of death of the principal applicant or SQ eligible person.  An individual who divorced a principal applicant after the principal applicant filed a COM application but before the principal applicant’s death, does not qualify.  A new spouse or child of a surviving spouse who qualifies under these provisions may also qualify as a derivative of the surviving spouse pursuant to INA section 203(d).      

(f)   (U) In issuing a visa to an eligible surviving spouse or child, you 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)(2)(C) 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."

(g(U) The deadline for principal applicants to submit applications for COM approval for the Iraqi SIV program was September 30, 2014.  Section 403(d) of the Emergency Security Supplemental Authority, 2021 (Public Law 117-31) states that the amendments to the surviving spouse and child provision of the Refugee Crisis in Iraq Act of 2007 (“RCIA”) have retroactive effect.  Therefore, Iraqi surviving spouses and children who meet the criteria set forth at Section 1244(b)(3) of the RCIA are eligible to apply for COM approval and/or a special immigrant visa notwithstanding the September 30, 2014, deadline to submit applications for COM approval for an Iraqi SIV, while SIVs remain available under Section 1244(b)(3) of the RCIA.            

b. (U) 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)  (U) Are There Numerical Limitations on Visa Issuance?

      (U) The AAPA provides that Afghans who are granted special immigrant status are not counted against any numerical limitation under sections 201(d), 202(a), or 203(b)(4) of the INA (8 U.S.C. 1151(d), 1152(a), and 1153(b)(4).  However, there is a limit to the total number of Afghan principal applicants who can be granted special immigrant status.  The Consolidated Appropriations Act, 2023, as enacted on December 29, 2022, authorized 4,000 additional Special Immigrant Visas (SIVs) for Afghan principal applicants, for a total of 38,500 visas allocated since December 19, 2014.   

(2)  (U) How are Petitions Filed (Form I-360 or Form DS-157)?

(a)  (U) Applicants for Afghan SIVs will usually proceed under the Form DS 157 application process. 

(b) (U) Acceptance of DS-157 as Petition: As of July 20, 2022, the chief of Mission (COM) for Afghanistan, or the COM designee, may approve any signed Form DS-157 filed pursuant to Section 602(b) of the Afghan Allies Protection Act of 2009 as a petition for classification as a special immigrant under INA section 203(b)(4) (8 U.S.C. 1153(b)(4)), after determining applicable requirements are met, unless COM approval was previously granted and no Form DS-157 was submitted by the applicant.

(c)  (U) As of July 20, 2022, the Chief of Mission for Afghanistan, or the COM designee, may conditionally approve a petition for classification as a special immigrant under INA section 203(b)(4) any unsigned Form DS-157 filed pursuant to Section 602(b) of the Afghan Allies Protection Act of 2009, after determining applicable requirements are met.  This does not apply for those cases in which an applicant is still required to file a Form I-360 with USCIS. See subsection (e) below.

(d) (U) Consular officers may approve a petition for classification as a special immigrant under INA section 203(b)(4) any Form DS-157 conditionally approved by the Secretary, the Chief of Mission for Afghanistan, or the COM designee, that was submitted to the COM or the COM designee and is electronically signed before the consular officer at the same time the applicant electronically signs a Form DS-260.  The consular officer should enter a case note in [IVO] indicating that the Form DS-157 is approved as a petition for status under INA section 203(b)(4).  While administering the oath, the consular officer should ask the applicant whether they attest to the veracity of the information provided in their completed Form DS-157 and understand that the completed Form DS-157 will be processed as their petition for special immigrant status. 

(e)  (U) In limited circumstance, Afghan SIV applicants will need to proceed under the I-360 applicant process, which involves filing an I-360 petition with USCIS after applying for and receiving COM approval.  

(f)  (U) The elements below must be established by approval of the appropriate COM or the COM's designee before an I-360 petition can be forwarded to USCIS:

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

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

(g(U) Certain applicants who submitted an application for COM approval, but did not submit a DS-157, are still required to file a Form I-360 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 Form I-360 petitions for Afghan SIV applicants.  The approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, will be sent through the NVC to designated posts for visa processing.

(h)  (U) If a deceased principal applicant previously received COM approval, the surviving spouse and/or child are required to file a Form I-360 with USCIS unless the surviving spouse and/or child were already included on pending I-360 petition filed by the deceased principal applicant. 

(i)   (U) 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. 

(3)  (U) Approval of Petition Under INA 204:  The approval of a petition under INA 204 establishes prima facie entitlement to status, and a presumption that the applicant met the qualifications for eligibility at the time of approval.  Unless you have specific, substantial evidence of either misrepresentation in the petition process or facts unknown to USCIS or the COM or designee at the time of petition approval or to the Chief of Mission for Iraq or Afghanistan, as applicable, at the time of the COM approval described in 9 FAM 502.5-12(C) paragraph b(2)(a) above, you generally would have no reason to return the petition to USCIS or to the COM or COM designee if the petition is approved pursuant to the process described in paragraph 6 or 7 below.  If posts have further questions, contact the Office of Field Operations (CA/VO/F).

(4)  (U) 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 applicant who meets the criteria in 9 FAM 502.5-12(C) paragraph a(1) any U.S. government fee in connection with an application for, or issuance of, an SQ SIV or an SW SIVNote that an applicant whose SIV status is based on conversion of a petition from SI1 to SQ1 status (see 9 FAM 502.5-12(C) paragraph b(7)(c) below) must pay such fees.

(5)  (U) Passports:  Section 1244(d) and section 602(b)(4) further provide that the Secretary of State must make a reasonable effort to ensure that applicants 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.  This is especially important for Afghan SIV applicants after the suspension of operations at Embassy Kabul as of August 30, 2021.

(6)  (U) Returning Petitions for Special Immigrant Status: If during the consular interview, you become aware of information that was not considered or unavailable at the time of COM and/or petition approval that is relevant to eligibility for COM approval, the officer must suspend action on the petition and return the petition to the COM along with a memorandum for reconsideration of COM and petition approval.  A sample request for reconsideration of COM and petition approval can be requested from CA/VO/F.  Submit requests to COM via e-mail at: ASIV-WOS@state.gov.  For applicants who had an I-360 petition approved by DHS, consular officers will need to separately request petition revocation via NVC once COM approval is withdrawn and any subsequent appeal is denied.  If the consular officer becomes aware of derogatory information that does not relate to eligibility for COM approval, the consular officer does not need to return the petition to COM.  Consular officers should follow standard guidance for handling derogatory information and possible ineligibilities encountered during the interview process. Officers can contact VO/F if they have questions on requesting reconsideration of COM approval and the returning of petitions.

(a)  (U) Returning petitions for surviving spouses and children with shared underlying petitions:  Certain surviving spouses and children of a deceased principal applicant may share the same underlying petition if the deceased principal applicant applied before death.  When refusing SW SIV applicants, post should be mindful of other associated principal applicant cases.  Post should contact VO/F for additional guidance prior to requesting the petition revocation.

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

(a)  (U) You may encounter a visa application for a principal applicant 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, only to the extent visas are available under section 1244.  In authorizing the conversion of these petitions when a visa is not immediately available with respect to SI1 status as long as visas are available under section 1244, Congress exempted the self-petitioning applicant from the qualification requirements for SQ1 or SW1 status other than the numerical limitations.

(b)  (U) In reviewing the qualifications of a principal applicant whose petition has been converted from SI1 to SQ1, you must consider the criteria outlined in 9 FAM 502.5-11(C) paragraph a(1), not those found in 9 FAM 502.5-12(C) paragraph a(1) above, 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 approval indicating that the applicant does not meet the criteria for SI1 status listed in 9 FAM 502.5-11(C) paragraph a(1), you would have no reason to return the petition to USCIS.  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)  (U) The conversion provision did not authorize a fee waiver.  An individual whose case is converted from SI-1 (section 1059 of Public Law 109-163, as amended) to SQ1 (section 1244 of Public Law 110-181)must pay all required fees. SQ1 visas issued in converted cases are to be valid for a maximum of six months.

(d)  (U) In the case of an Afghan national whose petition for SI status was approved by USCIS, but subsequently revoked due to the principal applicant's death, the surviving spouse or children of the principal applicant can request that the case be converted to SW and processed to conclusion (see 9 FAM 502.5-12(C) paragraph a(5) above). 

(8)  (U) Representation:

(a)  (U) 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) (U) 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 post’s physical layout and any space limitations or special security concerns.  Posts should not accede to requests for remote representation by attorneys/representatives via video or teleconferencing.

(c)  (U) During visa interviews, an attorney/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 the questions.  The attorney/representative can ask you to clarify a confusing question before the applicant answers the question, but you have the 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.  You should not ask the applicant what they discussed with their attorney before coming to the interview.  Failure to provide requested information could warrant a 221(g) refusal.  You need not allow applicants to consult with the attorney/representative before answering a question during the interview, except where the attorney wishes to advise their client on a point of law.  After providing an initial and full answer to the best of their knowledge, the applicant may then consult with their representative and provide follow up information or clarification.  The applicant and their 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, you should exercise your best judgment in weighing the credibility of the response as you would in other situations.

(d) (U) 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.

(9)  (U) Prioritization of Processing for Applicants Seeking Afghan  Special Immigrant (SQ1) Visas:  In response to Section 7076 of the Consolidated Appropriations Act, 2019 (Public Law 116-6), enacted on February 15, 2019, the Department developed the following order of prioritization of processing for applicants seeking Afghan special immigrant visas:

(a)  (U) Interpreters and Translators: Afghans working with U.S. military and U.S. government personnel as interpreters or translators, with extra consideration for those who assisted in combat operations.

(b)  (U) U.S. Government Direct Hire Employees:  Afghan locally employed staff under personal services agreement or personal services contract for the Department, DOD, or other U.S. government agencies.  This also includes direct hire employees of International Security Assistance Force (ISAF) or Resolute Support (RS), NATO, and governments participating in ISAF or RS in Afghanistan. 

(c) (U) Contractors with U.S. Government Installation Badges:  Afghan third party contractors or subcontractors employed on behalf of the U.S. government working at a U.S. government installation in Afghanistan.  This includes employees of companies that provide on-compound support for the U.S. Embassy, DOD, or other U.S. government installation.

(d) (U) Implementing Partners (IP): Afghan third party contractors or subcontractors employed on behalf of U.S. government entities, such as USAID and INL, implementing instructions in the field in Afghanistan.

(e)  (U) All Other Applicants:  Afghan U.S. government contractors, logistics or transportation service providers, and companies contracted by the U.S. government to provide services to Afghan National Army or Afghan National Police installations.

UNCLASSIFIED (U)