53764 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 1, 100, 103, 204, 207, 208, 

209, 211, 212, 213a, 214, 223, 235, 236, 

238, 240, 241, 244, 245, 245a, 248, 264, 

265, 270, 274a, 287, 292, 299, 301, 310, 

312, 316, 319, 320, 322, 324, 325, 328, 

329, 330, 332, 333, 334, 335, 336, 337, 

338, 339, 340, 341, 342, 343, 343a, 343b, 

343c, 392, and 499 

[CIS No. 2481–09; DHS Docket No. USCIS– 

2009–0022] 

RIN 1615–AB83 

Immigration Benefits Business 

Transformation, Increment I 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Final rule; request for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

regulations to enable U.S. Citizenship 

and Immigration Services (USCIS) to 

migrate from a paper file-based, nonintegrated systems environment to an 

electronic customer-focused, centralized 

case management environment for 

benefit processing. This transformation 

process will allow USCIS to streamline 

benefit processing, eliminate the capture 

and processing of redundant data, and 

reduce the number of and automate its 

forms. This transformation process will 

be a phased multi-year initiative to 

restructure USCIS business processes 

and related information technology 

systems. DHS is removing references to 

form numbers, form titles, expired 

regulatory provisions, and descriptions 

of internal procedures, many of which 

will change during transformation. DHS 

is also finalizing interim rules that 

permitted submission of benefit requests 

with an electronic signature when such 

requests are submitted in an electronic 

format rather than on a paper form and 

that removed references to filing 

locations for immigration benefits. In 

addition, in this rule DHS is publishing 

the final rule for six other interim rules 

published during the past several years, 

most of which received no public 

comments. 

DATES: Effective date: This rule is 

effective November 28, 2011. 

Comment date: Written comments 

must be submitted on or before October 

28, 2011. 

ADDRESSES: You may submit comments, 

identified by DHS docket number 

USCIS–2009–0022 by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: You may submit comments 

directly to USCIS by e-mail at 

uscisfrcomment@dhs.gov. Include DHS 

docket number USCIS–2009–0022 in the 

subject line of the message. 

• Mail: Sunday Aigbe, Chief, 

Regulatory Products Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue, NW., Suite 

5012, Washington, DC 20529–2020. To 

ensure proper handling, please 

reference DHS docket number USCIS– 

2009–0022 on your correspondence. 

This mailing address may be used for 

paper, disk, or CD–ROM submissions. 

• Hand Delivery/Courier: Sunday 

Aigbe, Chief, Regulatory Products 

Division, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue, NW., Suite 5012, Washington, 

DC 20529–2020. Contact Telephone 

Number is (202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: Dan 

Konnerth, Policy Chief, Office of 

Transformation Coordination, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 633 

Third St., NW., Washington, DC 20529– 

2210. Contact Telephone Number is 

(202) 233–2381. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Background 

A. Introduction 

B. Authority 

C. USCIS Transformation Initiative 

D. How Transformation Will Work 

E. Other Regulatory Changes Necessary for 

the Transformation Initiative 

III. The Changes Made by This Rule 

A. Removing References to Form Numbers 

and Form Titles 

B. Removing References to Position Titles 

Within USCIS 

C. Replacing ‘‘Service’’ With More Specific 

Component Names and Removing 

References to Particular USCIS Offices 

D. Removing Information About 

Procedures for Filing and Internal 

Processing of Benefit Requests 

E. Removing Obsolete and Expired 

Regulatory Provisions; Correcting and 

Updating Provisions Affected by 

Statutory Changes 

F. Revising or Reorganizing Sections or 

Paragraphs for Clarity and Consistency 

and To Remove Duplicative Information 

IV. Discussion of Comments Received in 

Response to the April 29, 2003, Interim 

Rule 

V. Discussion of Other Interim Final Rules 

Being Finalized 

A. Application for Refugee Status; 

Acceptable Sponsorship Agreement 

Guaranty of Transportation, RIN 1615– 

AA24 

B. Adjustment of Status for Certain Syrian 

Nationals Granted Asylum in the United 

States, RIN 1615–AA57 

C. Eliminating the Numerical Cap on 

Mexican TN Nonimmigrants, RIN 1615– 

AA96 

D. Allocation of Additional H–1B Visas 

Created by the H–1B Visa Reform Act of 

2004, RIN 1615–AB32 

E. Classification of Certain Scientists of the 

Commonwealth of Independent States of 

the Former Soviet Union and the Baltic 

States as Employment-Based Immigrants, 

RIN 1615–AB14 

F. Revoking Grants of Naturalization, RIN 

1615–AA30 

VI. Discussion of Comments Received in 

Response to the June 5, 2009, Interim 

Rule 

VII. Regulatory Requirements 

A. Administrative Procedure Act 

B. Unfunded Mandates Reform Act of 1995 

C. Small Business Regulatory Enforcement 

Fairness Act of 1996 

D. Executive Order 12866 

E. Executive Order 13132 

F. Executive Order 12988 Civil Justice 

Reform 

G. Paperwork Reduction Act 

H. Regulatory Flexibility Act 

I. Public Participation 

Interested persons are invited to 

submit written data, views, or 

arguments on all aspects of this rule. 

Comments that will provide the most 

assistance to USCIS in developing these 

procedures will reference a specific 

portion of this rule, explain the reason 

for any recommended change, and 

include data, information, or authority 

that support the recommended change. 

Instructions: All submissions must 

include the component name and DHS 

docket number USCIS–2009–0022. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received go to http:// 

www.regulations.gov. Submitted 

comments may also be inspected at the 

Regulatory Products Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue, NW., Suite 

5012, Washington, DC 20529–2020. 

II. Background 

A. Introduction 

U.S. Citizenship and Immigration 

Services (USCIS) receives 

approximately six million immigration 

benefit requests each year, comprised of 

more than fifty types of applications and 

petitions. USCIS historically accepted 

paper applications and depended on 

paper files. These applications and 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53765 

paper files were the only means for 

USCIS to adjudicate applications and 

petitions and that paper-based process, 

by contemporary standards, was 

inefficient. Until recently, USCIS 

processed on paper all immigration 

benefits, verified the identity of 

applicants, and provided other 

government agencies with the 

information required to quickly identify 

criminals and possible terrorists. 

USCIS is modernizing its processes 

and systems in light of the development 

of technology to accommodate and 

encourage greater use of electronic data 

submission, to include e-filing and 

electronic interaction. USCIS will not 

eliminate paper filing at this time but 

will convert the data from paper filing 

to an electronic medium when the 

completed form is received. USCIS will 

then operate in an electronic 

environment fostering greater 

operational efficiency, provide 

transparency, and improve access to 

information through online accounts for 

those who do business with USCIS. 

The Department of Homeland 

Security (DHS) and USCIS began the 

transformation of USCIS operations by 

eliminating regulatory references to 

filing locations for immigration benefits, 

thereby permitting USCIS to more 

rapidly adjust filing locations to meet 

demand and operational needs and to 

provide that information on petition and 

application forms and through other 

means, such as on the USCIS Web site. 

See Removing References to Filing 

Locations and Obsolete References to 

Legacy Immigration and Naturalization 

Service; Adding a Provision to Facilitate 

the Expansion of the Use of Approved 

Electronic Equivalents of Paper Forms, 

74 FR 26933 (June 5, 2009) (‘‘Filing 

Location Rule’’). 

DHS is expanding on the Filing 

Location Rule by affording additional 

flexibility for applicants and petitioners 

to file, and for USCIS to receive and 

process, benefit requests, biometrics, 

and supporting documentation in an 

electronic environment. For example, 

amendments in this rule to 8 CFR 

103.2(a)(1) (relating to filing), 8 CFR 

103.2(a)(7) (relating to receipt dates), 

and 8 CFR 103.8 (relating to delivery of 

notices) each replace language geared 

solely to paper files and benefit requests 

with language that is equally applicable 

in a paper or electronic environment. 

B. Authority 

The Government Paperwork 

Elimination Act (GPEA), Public Law 

105–277, tit. XVII, section 1703, 112 

Stat. 2681, 2681–749 (Oct. 21, 1998), 44 

U.S.C. 3504 note, provides that, when 

possible, Federal agencies use electronic 

forms, electronic filing, and electronic 

submissions to conduct agency business 

with the public. GPEA establishes the 

means for the use and acceptance of 

electronic signatures. This rule will 

significantly enhance the ability of 

USCIS to fully implement GPEA. The 

Homeland Security Act of 2002, Public 

Law 107–296, section 102, 116 Stat. 

2135 (Nov. 25, 2002), 6 U.S.C. 112, and 

the Immigration and Nationality Act of 

1952, as amended (INA or Act), section 

103, 8 U.S.C. 1103, charge the Secretary 

of Homeland Security with 

administration and enforcement of the 

immigration and naturalization laws. 

DHS implemented an electronic 

signature provision for immigration 

benefit filings with USCIS in 2003. 

Electronic Signature on Applications for 

Immigration and Naturalization 

Benefits, 68 FR 23010 (April 29, 2003). 

The Secretary promulgates this final 

rule under the broad authority to 

administer the Department of Homeland 

Security, and the authorities provided 

under the Homeland Security Act of 

2002, the immigration and nationality 

laws, and other delegated authority. 

DHS is also adding new fees to the 

USCIS fee regulations as required by 

recent legislation. Effective August 13, 

2010, Public Law 111–230 imposes 

additional fees on certain H–1B and L– 

1 nonimmigrants. 124 Stat. 2485 (Aug. 

13, 2010); New 8 CFR 103.7(b)(1)(v). 

C. USCIS Transformation Initiative 

USCIS is engaged in an enterprisewide transformation effort to implement 

new business processes and to improve 

service, operational efficiency, and 

national security. USCIS’s new 

operational environment will employ 

online accounts, such as those used by 

many private sector organizations. 

Applicants and petitioners will be 

able to access individualized accounts 

that will provide electronic access to 

information on how to apply for 

benefits, allow easier filing, and permit 

applicants and petitioners, and their 

representatives, to track the status of 

open applications and petitions. 

Applicants and petitioners will be able 

to use a secure USCIS Internet Web site 

to access accounts ‘‘on-demand’’ in an 

electronic service environment available 

at all times. 

USCIS will develop new automated 

case management tools to access data 

electronically, prevent the loss of 

information, and provide adjudicators 

with a comprehensive view of an alien’s 

immigration history. USCIS’s electronic 

environment will facilitate and expedite 

information collection, reduce benefit 

fraud and result in more consistent and 

efficient decisions. USCIS is 

supplementing existing paper filing 

options by adding more user-friendly 

electronic filing options. 

USCIS will improve many of its 

internal security, operational efficiency, 

and public service capabilities as 

transformation proceeds. USCIS will 

first allow the creation of accounts for 

various applicants, followed by 

enhanced e-filing and case management 

capabilities, and then improve reporting 

and Freedom of Information Act (FOIA), 

5 U.S.C. 552, tools. Once deployed, 

these tools will be applied and made 

available to the immigrant, 

humanitarian, and nonimmigrant 

applicant populations. 

USCIS’s transformation to an 

electronic environment is based on 

three objectives and long-term benefits: 

enhanced national security and integrity 

of filings, public service, and 

operational efficiency. USCIS’s 

transformation will use modern 

electronic audit and investigative 

methods to improve national security 

and integrity by identifying potential 

fraud and other risks by effectively 

collecting, analyzing and sharing 

information used to verify an alien’s or 

other individual’s identity and 

eligibility for various immigration 

benefits. USCIS will use a more 

complete picture of an alien’s 

immigration history by analyzing 

information across benefit applications, 

thus exposing those attempting to 

perpetrate fraud or who are otherwise 

ineligible for immigration benefits. For 

example, an applicant’s or beneficiary’s 

marital or employment history in an 

existing agency file or in another 

pending application may provide 

relevant information that differs from 

the information in the application or 

petition being adjudicated. A 

responsible and transparent approach 

toward the handling of such personal 

information protects the rights of 

individuals and organizations 

interacting with USCIS and thereby 

fosters their trust and cooperation. At 

the same time, this approach facilitates 

authorized sharing of information with 

partner components of DHS—such as 

U.S. Customs and Border Protection 

(CBP) and U.S. Immigration and 

Customs Enforcement (ICE)—in a secure 

environment that better protects against 

unauthorized disclosures. This 

approach will facilitate authorized 

sharing of information with partner 

agencies—such as the Department of 

State (DOS) and the Department of 

Justice (DOJ). In addition, electronic 

transmission and storage of information 

is faster, less costly and more secure 

than the physical movement of paper 

files. 


Emcdonald on DSK2BSOYB1PROD with RULES3
53766 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

1The Privacy Act grants United States citizens 

and lawful permanent residents the right to access 

and amend their records. DHS policy, as a matter 

of discretion, permits nonimmigrant aliens 

equivalent ability to access and correct records. 

Memorandum for Directorate and Component 

Leadership from Hugo Teufel III, Chief Privacy 

Officer, DHS Privacy Policy Regarding Collection, 

Use, Retention, and Dissemination of Information 

on Non-U.S. Persons, Memorandum 2007–1 

(January 19, 2007), found at http://www.dhs.gov/ 

xlibrary/assets/privacy/privacy_policyguide_2007- 

1.pdf. 

USCIS will improve public service by 

adjudicating requests for benefits more 

accurately and quickly, and by 

providing more timely and accurate 

information about immigration benefits 

and the status of benefit requests. 

Applicants, petitioners, and their 

representatives will have access to 

relevant forms, instructions, case status, 

and other actions and information 

through online accounts that organize 

information and transactions to meet 

their needs. DHS will continue to 

ensure the confidentiality of its 

immigration records in accordance with 

the requirements of the law, including 

the Privacy Act, 5 U.S.C. 552a,1 and 8 

CFR 208.6. USCIS’s transformation to an 

electronic environment will enable it to 

become an innovative and agile 

organization that better understands its 

workload and best uses all available 

resources, investing in its people and 

infrastructure to ensure cost-effective 

and consistent results. 

D. How Transformation Will Work 

USCIS adopted a ‘‘person-centric’’ 

business approach to transformation 

based on establishing various types of 

individual and organizational accounts. 

The key to this approach is encouraging 

individual applicants, petitioners, 

beneficiaries, organizations, legal 

representatives, and others who interact 

with USCIS to access their own online 

accounts. Applicants, petitioners, and 

others will be able to electronically 

submit benefit requests with supporting 

documentation, access status 

information regarding pending benefit 

requests, change their addresses and 

contact information, obtain FOIArelated materials, and comply with 

some registration requirements of the 

Immigration and Nationality Act. 

USCIS’s transformation will create an 

end-to-end electronic adjudicative 

process encompassing an alien’s entire 

immigration lifecycle, unlike the current 

process that uses multiple systems and 

focuses on each individual benefit 

request. Data initially provided by 

account holders will be reused, if 

appropriate, to reduce data entry 

required for subsequent benefit requests. 

Additional and revised data will be 

used to update and enhance account 

information. Account data submitted to 

support various immigration benefit 

transactions will be verified, where 

feasible and appropriate, through links 

to other internal and external data 

systems, potentially reducing the need 

for applicants and petitioners to provide 

certain forms of supporting evidence 

and reducing potential requests for 

evidence from USCIS. 

USCIS’s transformation will 

eventually affect all aspects of USCIS 

benefit processing operations and 

technology. This operational concept is 

intended to standardize processes across 

USCIS operations relating to case intake, 

biometrics, background checks, 

adjudication, scheduling, and 

notifications. USCIS benefit 

adjudication operations will be changed 

incrementally from a paper- and hard 

copy file-based process to an electronic 

process, making it possible to process 

benefit requests more efficiently. With 

the implementation of these 

improvements, USCIS will enhance the 

overall process. 

E. Other Regulatory Changes Necessary 

for the Transformation Initiative 

DHS anticipates that additional 

regulatory changes will be required over 

the next several years as the 

transformation of USCIS to an electronic 

environment progresses. DHS expects, 

for example, to revise regulations 

pertaining to filing and handling of 

immigrant benefit requests to lead to 

computer system enhancements applied 

to immigrant applications and benefits. 

DHS will not make transformationrelated changes to 8 CFR part 214 at this 

time, but will publish a separate 

rulemaking to address business 

transformation as well as reorganizing 

and simplifying that part. 

III. The Changes Made by This Rule 

DHS is amending those parts of 

chapter I of 8 CFR that regulate 

affidavits of support, citizenship and 

naturalization, employment 

authorization, nonimmigrant benefits 

(other than part 214) and related 

waivers, permanent resident documents, 

refugee and asylum processing, 

Temporary Protected Status, and travel 

documents. These amendments are best 

understood by the changes effected, 

rather than as individual amendments 

to the regulations. 

A. Removing Form Title and Number 

References, and Adding Filing 

Definitions 

DHS is removing references to form 

numbers and form titles. At this time, 

USCIS will continue to accept paper 

submission of most applications, 

petitions, and benefit requests, although 

it will phase out references to 

mandatory use of specific forms for 

specific purposes in the regulations. 

Mandating in regulations specific form 

numbers reduces USCIS’s ability to 

modify its business processes to reflect 

filing procedures in an electronic 

environment. Form names and numbers 

will continue to exist for reference 

purposes but will not be specifically 

referenced in the regulations. This rule 

is an early step in the transformation 

process and purposely does not remove 

all form references from all regulations 

affecting USCIS procedures at this time. 

Forms identified by number will 

continue to appear until other parts of 

DHS regulations are amended to address 

transformation requirements. The list of 

prescribed forms will be removed from 

8 CFR parts 299 and 499, although 

USCIS will continue to refer to form 

numbers on its Internet Web site, at 

http://www.uscis.gov, and public 

information telephone scripts. DHS 

components ICE, and CBP will likewise 

continue to refer to form numbers on 

their Internet Web sites, http:// 

www.ice.gov, and http://www.cbp.gov. 

In most instances, DHS is removing 

form names and numbers by replacing 

the form reference with a generic 

statement, such as ‘‘the form designated 

by USCIS.’’ Removal of these references 

from a paragraph or section in some 

instances, however, requires changes 

which cannot be achieved through 

replacement of a term or phrase. In 

those instances, the entire paragraph is 

revised. 

DHS is removing references to the 

specific forms known by form numbers: 

AR–11, G–28, G–325, I–90, I–94, I–102, 

I–129, I–130, I–131, I–191, I–192, I–193, 

I–212, I–290B, I–407, I–512, I–539, 

I–551, I–566, I–589, I–590, I–601, I–602, 

I–607, I–644, I–688, I–730, I–765, I–797, 

I–797A, I–797B, I–821, I–854, I–864, 

I–864A, I–864P, I–865, I–907, I–914, 

I–917, I–918, N–300, N–400, N–426, 

N–565, N–600, and N–643. This list is 

not intended to be exhaustive, nor are 

all references to the listed forms 

removed by this final rule. Additional 

references to these and other USCIS 

forms will be phased out in subsequent 

rules. DHS is not removing references to 

forms that primarily affect the functions 

of DHS components other than USCIS. 

Enumerating OMB control numbers 

for USCIS information collection 

requirements in regulations is no longer 

necessary and, therefore, 8 CFR 100.7 is 

being removed. OMB control numbers 

continue to be displayed on USCIS 

forms pursuant to the Paperwork 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53767 

Reduction Act, 44 U.S.C. 3512, and on 

the USCIS Internet Web site. 

DHS is adding new definitions for 

‘‘application,’’ ‘‘petition,’’ and ‘‘benefit 

request’’ to transition from ‘‘forms’’ to 

either paper or electronic instruments 

used to seek various immigration 

benefits. The terms ‘‘application’’ and 

‘‘petition’’ are used together, separately, 

and interchangeably in many sections of 

chapter I of the 8 CFR and this rule does 

not affect every reference to those terms. 

The term ‘‘benefit request’’ is often used 

in the sections amended by this rule in 

place of application or petition in the 

interest of economy of words, to reduce 

the ambiguity and confusion resulting 

from the constant use of both terms, 

improve readability, and to add 

flexibility for describing what a 

particular capability may be called 

when it is converted to an electronic 

interaction. No substantive change 

results from defining these terms in this 

rule. 

As the USCIS transformation 

initiative progresses, electronic versions 

of forms and digital images of 

supporting documents will largely 

replace paper forms and documents for 

adjudication and records retention 

purposes. USCIS will specify the 

process and standards for the 

transmission of electronic benefit 

requests and supporting documents on 

its Internet Web site, but it is intended 

that these standards will accommodate 

the technology in most home and public 

computers so as to be widely accessible. 

DHS is adding a definition of ‘‘form 

instructions’’ to establish that the term 

refers to the most recent, approved 

version of such instructions available 

through the USCIS Internet Web site, 

regardless of the fact that other editions 

of these instructions may exist and be in 

circulation through other sources. 

Whether published in paper form or on 

the USCIS web site, all form and form 

instructions will continue to comply 

with Paperwork Reduction Act 

requirements, including public notice 

and comment periods. 44 U.S.C. 3507. 

In addition to traditional instructions 

appended to a USCIS form, the term as 

defined by this rule encompasses the 

process information (e.g., filing 

locations, instructions on the process for 

submission of supporting documents) 

that USCIS publishes on its Internet 

Web site in addition to those traditional 

instructions, and may also include nonform and non-substantive guidance such 

as appendices, exhibits, guidebooks, or 

manuals. 

USCIS does not publish its 

Registration for Classification as 

Refugee, Form I–590, with instructions 

for the U.S. Refugee Admissions 

Program (USRAP), for general public 

use. Access to the USRAP is managed 

by DOS, and implemented by its 

overseas processing entities (OPEs). 

OPEs assist targeted populations of 

refugee applicants with preparation of 

the Registration for Classification as 

Refugee. As such, the term ‘‘form 

instructions’’ includes process 

information that USCIS publishes about 

the USRAP. 

DHS is adding a definition for the 

terms ‘‘execute’’ or ‘‘executed’’ when 

referring to completion of an application 

or petition to request a benefit to ensure 

consistency across paper and electronic 

media. 

B. Removing References to Position 

Titles Within USCIS 

Wherever possible, DHS is removing 

references to official position titles used 

within DHS or used in the past by the 

former Immigration and Naturalization 

Service (INS). These titles include 

director, district director, and 

commissioner as well as position 

descriptions such as examiner or 

adjudicator. Both position titles and 

delegated authority to perform specific 

duties assigned to USCIS employees are 

subject to change, potentially rendering 

regulatory references inaccurate or 

delaying implementation of planned 

operational changes. DHS is revising 

those titles and position descriptions 

with USCIS, DHS, or other component 

names, as appropriate and necessary to 

provide DHS with the operational 

flexibility required to facilitate 

adjudication in an electronic 

environment. DHS is also replacing 

obsolete references to the Attorney 

General, substituting the Secretary 

where appropriate. 

DHS is, for example, amending 8 CFR 

103.7(d) by removing the specific titles 

of USCIS employees who are designated 

to certify official immigration records. 

DHS and USCIS will delegate authority 

to appropriate officials who may be 

required to fulfill this responsibility. 

C. Replacing ‘‘Service’’ With More 

Specific Component Names and 

Removing References to Particular 

USCIS Offices 

The definition of ‘‘Service’’ in newly 

designated 8 CFR 1.2 is amended to 

provide flexibility and promote the 

goals of transformation. The regulations 

in chapter I of the 8 CFR contain 

provisions that, to varying degrees, 

govern facets of all of the immigration 

components of DHS—CBP, ICE, and 

USCIS. Where DHS has determined that 

the section being amended by this rule 

applies only to USCIS, that defined 

acronym is inserted to replace the 

previously named office, position, title, 

or component. Where the section 

pertains to an action that may have been 

taken by INS, or a function that is the 

purview of or shared with another 

component, the term ‘‘the Service’’ is 

retained or inserted. Thus, ‘‘the Service’’ 

in 8 CFR may refer to any immigrationrelated component of DHS, including 

USCIS, ICE, or CBP. As DHS does not 

purport to revise every paragraph within 

8 CFR, the absence of a change to an 

existing usage of ‘‘Service’’ in a 

particular context does not necessarily 

indicate a position with respect to 

component authority in that context. 

Similarly, remaining references to the 

former Immigration and Naturalization 

Service and the acronym INS are 

replaced by more accurate terms. 

D. Removing Information About 

Procedures for Filing and Internal 

Processing of Benefit Requests 

Some parts of the regulations include 

details of the internal processing and 

handling of benefit requests or 

descriptions relating to submission of 

paper versions of benefit request forms. 

Administrative filing requirements, 

locations, and procedures will not be 

prescribed in regulations but will be 

outlined in more flexible methods of 

conveying instructions. This 

modification will not change eligibility 

criteria or evidentiary standards. See, 

e.g., 8 CFR 212.7(a)(3) (‘‘* * * If the 

application is approved the director 

shall complete Form I–607 for inclusion 

in the alien’s file.’’). See also 8 CFR 

214.2(l)(5)(ii)(E), (‘‘* * * The consular 

officer shall also endorse all copies of 

the alien’s Form I–129S with the blanket 

L–1 visa classification and return the 

original and one copy to the alien. 

When the alien is inspected for entry 

into the United States, both copies of 

the Form I–129S shall be stamped to 

show a validity period not to exceed 

three years and the second copy 

collected and sent to the appropriate 

Regional Service Center for control 

purposes.’’) These details are not 

essential to the regulations, do not add 

substantive requirements or impose 

limitations, and unnecessarily burden 

the text of the regulations. To the extent 

that this information is required to be 

published, 5 U.S.C. 552(a)(1)(A), (B), 

DHS will publish an organization and 

functions rule in part 2 of 8 CFR. DHS 

is removing these types of provisions 

because they are subject to change 

during transformation and because such 

information is more appropriately 

included within field manuals and other 

instructional materials that USCIS can 

readily revise and describe in more 

detail. 


Emcdonald on DSK2BSOYB1PROD with RULES3
53768 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

Terms such as ‘‘in writing,’’ ‘‘written 

decision,’’ and ‘‘written notice’’ have 

not been removed because an electronic 

transmission constitutes a valid writing. 

GPEA provides: ‘‘Electronic records 

submitted or maintained in accordance 

with procedures developed under this 

title, or electronic signatures or other 

forms of electronic authentication used 

in accordance with such procedures, 

shall not be denied legal effect, validity, 

or enforceability because such records 

are in electronic form.’’ Public Law 105– 

277, tit. XVII, section 1707, 112 Stat. at 

2681–751 (Oct. 21, 1998) . GPEA defines 

electronic signature as ‘‘* * * a method 

of signing an electronic message that 

identifies and authenticates a particular 

person as the source of the electronic 

message; and indicates such person’s 

approval of the information contained 

in the electronic message.’’ Id. Thus, as 

provided in GPEA, a notice on the status 

of a request for benefits, a request for 

additional evidence, and a notice of 

approval or denial of a request for 

benefits may be effected by electronic 

communication if that method is 

requested by the person who has 

requested the benefit, notwithstanding a 

regulatory provision that requires such 

notice to be ‘‘in writing.’’ Nonetheless, 

for clarity’s sake, 8 CFR 103.8 provides 

that electronic delivery of notices 

suffices in appropriate circumstances. 

See new 8 CFR 103.8. 

E. Removing Obsolete and Expired 

Regulatory Provisions; Correcting and 

Updating Provisions Affected by 

Statutory Changes 

DHS is also removing regulatory 

provisions that have expired because of 

statutory lapses or self-executing time 

limits, or that are obsolete, and to make 

non-discretionary corrections to 

provisions affected by statutory 

amendments or extensions of time. In 

addition, DHS revises obsolete statutory 

and regulatory citations. 

DHS is adding three paragraphs to 

USCIS fee regulations to reflect statutory 

fees which are already collected but 

which were not previously included in 

regulations. See new 8 CFR 

103.7(b)(1)(i)(CCC)–(EEE). The additions 

provide the $1500 or $750 fee for filing 

certain H–1B petitions required by the 

American Competitiveness and 

Workforce Improvement Act (ACWIA), 

the additional fee of $500 for filing 

certain H–1B and L petitions established 

by Section 426 of the Visa Reform Act 

of 2004, and the additional $150 fee for 

H–2B petitions required by the Real ID 

Act of 2005. See, respectively, INA 

section 214(c)(9)(B), 8 U.S.C. 

1184(c)(9)(B); INA section 214(c)(12)(C), 

8 U.S.C. 1184(c)(12)(C); INA section 

214(c)(13)(C), 8 U.S.C. 1184(c)(13)(B). 

These fees are used, generally, for 

training, scholarships, and fraud 

detection and prevention. INA sections 

286(s), (v), 8 U.S.C. 1356(s), (v). USCIS 

determines liability for both of these 

fees and calculates the amount due 

through a series of questions on the H 

and L petition form. The determination 

process is unchanged by this 

rulemaking. Provisions are also added to 

prescribe a fee of $2000 for certain H– 

1B nonimmigrants or $2250 for certain 

L–1 nonimmigrants as required by 

recent legislation. Public Law 111–230, 

section 402, 124 Stat. 2488 (Aug. 13, 

2010). Fees collected pursuant to these 

sections are deposited in the General 

Fund of the Treasury. Id, at section 

402(c). DHS is not required to publish 

these fees in the CFR since the statute 

is clear in requiring their collection and 

use. Nevertheless, most USCIS 

stakeholders know to refer to 8 CFR 

103.7 for the proper USCIS fees, and 

DHS believes it is a better practice to 

make sure that these statutorily 

mandated fees are also clearly 

delineated along with the fees 

established administratively by DHS 

through rulemaking. 

Section 209.1(f) is a companion 

provision to match the existing 

provision in 8 CFR 209.2(b), which sets 

out the process and standards for 

asylees seeking adjustment of status 

who require a waiver of inadmissibility. 

Since both refugees and asylees 

applying for adjustment of status are 

subject to identical standards for 

waivers of inadmissibility these 

standards are now reflected in this 

section addressing both types of 

applicants. INA section 209(c), 8 U.S.C. 

1159(c). 

Since the statutory cap on adjustment 

by asylees has been removed, the text 

referencing that cap—at 8 CFR 

209.1(a)(1)(vi) and the sentence that 

follows—are removed. For the same 

reason, 8 CFR 209.2(a)(2) is revised by 

removing the last three sentences of the 

paragraph. See Public Law 109–13, tit. 

I, section 101(g), 119 Stat. 302 (May 11, 

2005), 8 U.S.C. 1101 note. 

DHS is revising 8 CFR 209.2(d) to 

clarify that a medical examination, 

including compliance with vaccination 

requirements, is required of asylees 

applying for adjustment of status. The 

vaccination supplement no longer exists 

as a stand-alone document but rather is 

incorporated into the medical 

examination. Form instructions provide 

detailed guidance regarding the medical 

examination requirement. 

DHS is removing 8 CFR 212.8 and 

212.9, relating to nonpreference investor 

visas and to former third and sixth 

preference employment-based visas, 

because the provisions are obsolete. The 

provisions of the Act that provided for 

these visas were repealed by section 111 

of the Immigration Act of 1990, Pub. L. 

101–649, 104 Stat. 4978 (Nov. 29, 1990). 

DHS is removing 8 CFR 212.11, which 

regards the admissibility of an alien 

who has been convicted of a violation 

of a law relating to a controlled 

substance because it is redundant. This 

section provided that in determining the 

admissibility of an alien who has been 

convicted of a violation of any law 

relating to a controlled substance, the 

term controlled substance as used in 

section 212(a)(23) of the Act shall mean 

the same as that referenced in the 

Controlled Substances Act, 21 U.S.C. 

801, et seq. Section 212(a)(2) of the Act 

governs inadmissibility for criminal acts 

and Section 212(a)(2)(A)(i)(I) 

specifically includes violations of the 

Controlled Substance Act. INA section 

212(a)(2)(A)(i)(II), 8 U.S.C. 

1182(a)(2)(A)(i)(II). 

DHS revised Section 244.17 to reflect 

current policies and procedures for reregistration of TPS beneficiaries. 

DHS is removing 8 CFR 245.1(e)(2) as 

obsolete. This section provided for the 

adjustment of status of certain 

nonimmigrant registered nurses in 

accordance with the Immigration 

Nursing Relief Act of 1989, Public Law 

101–238, 103 Stat. 2099 (Dec. 18, 1989), 

8 U.S.C. 1182 note. The application 

period for this provision ended on 

March 20, 1995, and USCIS no longer 

has pending applications related to this 

provision. This regulation also makes 

related conforming changes to 8 CFR 

245.1(g)(1) and 245.2(a)(5)(ii). 

Section 245.9 is removed. This 

section provided for adjustment of 

status for certain Chinese nationals 

pursuant to the Chinese Student 

Protection Act, Pub. L. 102–404, 106 

Stat. 1969 (Oct. 9, 1992). The 

application period for this provision 

ended June 30, 1994, and USCIS no 

longer has pending applications related 

to this provision. Id. 

Section 245.12 is removed. This 

section provided for adjustment of 

status for certain Polish and Hungarian 

parolees pursuant to section 646 of the 

Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996, 

Public Law 104–208, 110 Stat. 3009 

(Sep. 30, 1996). Persons eligible for 

benefits under this provision must have 

been paroled into the U.S. prior to 

December 31, 1991. USCIS has not 

received applications pursuant to this 

section for several years and is unlikely 

to receive any in the future. Public Law 

104–208, 110 Stat. 3009 (Sep. 30, 1996). 


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Section 245.13 is removed. This 

section provided for adjustment of 

status for certain nationals of Nicaragua 

and Cuba pursuant to section 202 of the 

Nicaragua Adjustment and Central 

American Relief Act, Public Law 105– 

100, 111 Stat. 2160, 2193 (Nov. 19, 

1997). The application period for 

benefits under this provision ended 

April 1, 2000. USCIS no longer has 

pending applications pursuant to this 

provision. Id. 

Section 245.20 is removed . This 

section provided for adjustment of 

status of Syrians granted asylum under 

the Syrian Adjustment Act, Public Law 

106–378, 114 Stat. 1442 (Oct. 27, 2000). 

Eligibility under this provision required 

entry prior to Dec. 31, 1991. USCIS no 

longer has pending applications 

pursuant to this provision and is 

unlikely to receive any in the future. 

Section 245.21 is revised because the 

Consolidated Appropriations Act of 

2005 amended the Indochinese Parolee 

Act to eliminate the 3-year filing 

window and 5,000 visa limit. 

Parts 264 and 265 are revised to 

encompass management of 

fingerprinting, registration, and address 

reporting requirements in an electronic 

environment and to remove obsolete 

references. 

This rule adds 8 CFR 316.6 and 

revises 8 CFR 316.5, 8 CFR 322.2, and 

8 CFR 341.5 to conform to the 

amendments to the Act by the National 

Defense Authorization Act (NDAA 

2008), Public Law 110–181, 122 Stat. 3 

(Jan. 28, 2008). The NDAA 2008 

provides certain immigration benefits 

for any qualifying spouse or child of a 

member of the Armed Forces. 

Specifically, the NDAA 2008 amended 

section 319(e) of the Act; 8 U.S.C. 

1430(e), to allow certain spouses of 

members of the Armed Forces to count 

any qualifying time abroad as 

continuous residence and physical 

presence in the United States for 

purposes of naturalization and to permit 

such naturalization to occur outside the 

United States. INA section 319(e), 8 

U.S.C. 1430(e); INA section 322(d), 8 

U.S.C. 1433(d); 8 U.S.C. 1443a. 

This rule revises 8 CFR 319.3 to 

conform to the amendments to the INA 

by the National Defense Authorization 

Act (NDAA 2004), Public Law 108–136, 

117 Stat. 1565 (Nov. 24, 2003), which 

provides certain immigration benefits 

relating to the naturalization of any 

qualifying surviving child or parent of a 

member of the Armed Forces. 

Specifically, NDAA 2004 provides for 

the naturalization of any qualifying 

surviving child or parent of a member 

of the Armed Forces who dies during a 

period of honorable service, a benefit 

only previously afforded to surviving 

spouses. INA section 319(d), 8 U.S.C. 

1430(d). 

This rule revises 8 CFR 322.3 to 

conform to the various legislative 

amendments to the Act. Specifically, 8 

CFR 322.3(a) was revised to conform to 

the 21st Century Department of Justice 

Appropriations Authorization Act, 

Public Law 107–273, enacted on 

November 2, 2002, which amended 

section 322 of the Act to allow U.S. 

citizen grandparents and U.S. citizen 

legal guardians to apply for 

naturalization on behalf of a child born 

and residing outside of the United 

States. Public Law 107–273, 116 Stat. 

1758 (Nov. 2, 2002); see INA section 

322, 8 U.S.C. 1433(a). Such an 

application by the U.S. citizen 

grandparent or U.S. citizen legal 

guardian can be made within 5 years of 

the death of a U.S. citizen parent of a 

child who could otherwise have been 

the beneficiary of an application for 

naturalization under section 322 of the 

Act. See Id. This change will conform 

the regulations to legislation and current 

practice. 

In addition, current 8 CFR 322.3(a) 

requires the citizen parent (or, as 

appropriate, grandparent or guardian) to 

include with the application a request 

concerning when the applicant would 

like to have the child’s naturalization 

interview scheduled. The form 

instructions elicit the information 

needed to schedule the interview. 

Therefore, there is no need for a 

separate provision on this point in 8 

CFR 322.3(a). 

This rule revises 8 CFR 322.3(b) to 

conform to the amendments to the Act 

made by the Intercountry Adoption Act 

of 2000, Public Law 106–279, which 

added a definition of certain adoptees to 

section 101(b)(1)(G) of the Act on 

October 6, 2000. 114 Stat. 825 (Oct. 6, 

2000). The new definition describes 

children adopted in a foreign state that 

is a party to the Hague Convention on 

Protection of Children and Co-operation 

in Respect of Intercountry Adoption of 

May 22, 1993. INA section 101(b)(1)(G), 

8 U.S.C. 1101(b)(1)(G). That definition 

under section 101(b)(1)(G) of the Act 

corresponds to the visa categories IH–3 

and IH–4 and became effective when the 

Hague Adoption Convention entered 

into force in the United States on April 

1, 2008. See id. USCIS implemented the 

Intercountry Adoption Act by 

publishing an interim rule, 

‘‘Classification of Aliens as Children of 

United States Citizens Based on 

Intercountry Adoptions Under the 

Hague Convention,’’ on October 4, 2007. 

See 72 FR 56831 (Oct. 4, 2007). The 

additional changes in this rule conform 

to the requirements codified on that 

date and which have been followed 

since April 1, 2008. 

In addition, several expired and 

obsolete naturalization-related 

regulatory provisions have been 

removed, including 8 CFR: 312.3(a) 

(standardized citizenship testing), 329.5 

(natives of the Philippines with active 

duty service during World War II), 332.2 

(establishment of photographic studios), 

334.16–334.18 (naturalization petitions), 

335.11–335.13 (naturalization petitions), 

338.11 and 338.12 (naturalization court 

processes), 339.2(c) (reports relating to 

petitions filed prior to October 1, 1991), 

and 340.1 (reopening of a naturalization 

application by a district director 

pursuant to section 340(h) of the Act). 

In 8 CFR 312.3, paragraph (a) is 

removed because the ‘‘standardized 

citizenship testing’’ for applicants for 

naturalization ended on August 30, 

1998. See 63 FR 25080 (May 6, 1998). 

Section 329.5 is removed because the 

filing period for submitting an 

application for naturalization under 

section 405 of the Immigration Act of 

1990, the corresponding statutory 

naturalization authority, expired on 

February 3, 1995. See 8 CFR 329.5(e). 

Sections 334.16–334.18, 335.11– 

335.13, and 339.2(c) are removed 

because they relate to any ‘‘petition for 

naturalization’’ filed prior to October 1, 

1991. Such petitions were under the 

jurisdiction of the naturalization court 

until that date. See 8 CFR 310.4; INA 

section 310, 8 U.S.C. 1421. 

F. Revising or Reorganizing Sections or 

Paragraphs for Clarity and Consistency, 

and To Remove Duplicative Information 

DHS is reorganizing 8 CFR part 1 

(Definitions) and 8 CFR part 103 

(Immigration Benefits, Biometric 

Requirements, Availability of Records), 

without substantive change. The 

reorganization of these sections does not 

introduce new obligations, 

requirements, or procedures. The 

reorganization is designed to simplify 

and rearrange existing regulatory 

requirements in a manner which is 

easier for the public to identify and 

understand. This rulemaking also 

removes regulatory provisions which 

repeat statutory or other regulatory 

information or which restate filing 

information that USCIS routinely 

includes in its form instructions. None 

of the changes made effect a substantive 

change in the law. DHS is also 

reorganizing certain parts of 8 CFR 

without substantive change. DHS 

intends, in the recodification of these 

regulations, to conform to the 

understood policy, intent, and purpose 

of the original regulations, with such 


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amendments and corrections as will 

remove ambiguities, contradictions, and 

other imperfections. 

The regulations pertaining to filing 

and adjudication of immigration 

benefits are contained in 8 CFR 103.2. 

That section also incorporates the 

specific requirements contained in 

USCIS form instructions. See 8 CFR 

103.2(a)(1). Repeating or paraphrasing 

parts of this information within other 

regulations that relate to specific 

benefits is unnecessary, possibly 

confusing, and may be inaccurate. Such 

repetition can lead the reader to 

conclude that a provision is somehow 

uniquely applicable to that particular 

benefit type. For example, ‘‘* * * The 

director shall consider all the evidence 

submitted and such other evidence as 

he or she may independently require to 

assist his or her adjudication’’ is 

repetitive information found within 

another regulation. See 8 CFR 

214.2(h)(9)(i). Or, ‘‘* * * A copy of a 

document submitted in support of a visa 

petition filed pursuant to section 214(d) 

of the Act and this paragraph may be 

accepted, though unaccompanied by the 

original, if the copy bears a certification 

by an attorney, typed or rubberstamped, in the language set forth in 

§ 204.2(j) of this chapter. However, the 

original document shall be submitted if 

requested by the Service’’ is both 

repetitive and inaccurate because the 

referenced paragraph and procedure no 

longer exist. See also 8 CFR 214.2(k)(1). 

This rule organizes 8 CFR part 103 

into four subparts: subpart A—Applying 

for Benefits, Surety Bonds, Fees; subpart 

B—Biometric Requirements; subpart 

C—Reserved; and subpart D— 

Availability of Records. 

Section 103.1 is removed. The 

delegation of authority, formerly found 

in 8 CFR 103.1(a), was redundant of 

authority specified in 8 CFR 2.1. Section 

103.2(a) is revised, primarily to describe 

alternate procedures for electronic 

submission of benefit requests with 

digital images of supporting 

documentation. With the definition of 

‘‘benefit request’’ added in 8 CFR part 

1, the terms ‘‘application’’ and 

‘‘petition’’ are being replaced by the 

term ‘‘benefit request’’ to reduce 

possible confusion regarding the use of 

specific paper versions of forms 

traditionally required to apply for 

benefits. As stated earlier, the terms 

‘‘petition’’ and ‘‘application’’ are not 

being replaced throughout the rest of 

this chapter I and will be accorded the 

meaning now ascribed to them in 8 CFR 

part 1. Although this paragraph was 

recently revised, the additional changes 

made by this rule will clarify filing 

procedures for both the current 

environment and the electronic 

environment. 

Section 103.2, paragraph (a)(7) is 

revised to describe establishment and 

recordation of filing dates for benefit 

requests in an electronic environment. 

That paragraph had previously 

described procedures that reflected 

regular mail, hand delivery, and internal 

actions of USCIS for physically 

handling paper, such as stamping files 

with dates by hand. Specific internal 

procedures for determining how receipt 

dates and times are to be associated 

with a particular benefit request for 

which date and time are appropriate, or 

even essential, will be established for 

requests that will be received 

electronically, in paper format, or both. 

USCIS realizes that the date of filing is 

very important when a benefit request 

has a deadline or a date-specific impact 

on eligibility. Such benefit requests are 

not affected by this rule because the 

date the benefit request is received by 

USCIS will still be recorded in the 

system. While the internal process for 

recording the date when a request is 

received or complete will not be 

promulgated, the ability of filers of a 

benefit request to obtain a definitive 

receipt date will not be affected by 

removing the requirement for USCIS to 

stamp receipt dates. 

In addition, 8 CFR 103.2(a)(7) is 

revised to eliminate possible 

inconsistency with 8 CFR 103.2(a)(1), 

clarifying that USCIS may reject a 

benefit request if data have not been 

entered in required fields. Further, 8 

CFR 103.2(a)(7)(iii) is added to codify 

the current policy that there is no 

appeal when a case is rejected in 

accordance with this section. In USCIS 

parlance, the term ‘‘rejected’’ means that 

the benefit request and fee payment are 

returned for failure to comply with all 

filing requirements without being fully 

considered, and can be re-filed when 

properly completed, while ‘‘denied’’ 

means that the request is fully 

adjudicated and considered, and the 

applicant is determined ineligible for 

the benefit sought. Appeals of rejections 

are generally returned without 

consideration. Therefore, this change is 

only clarifying and has no substantive 

effect. 

Section 103.2(b)(1) is revised to 

update terminology and to clarify that 

every applicant or petitioner must 

remain eligible for the benefit request at 

the time of adjudication and that every 

benefit request must be submitted with 

all prescribed supporting 

documentation. USCIS longstanding 

policy and practice, as well as a basic 

tenet of administrative law, is that the 

decision in a particular case is based on 

the administrative record that exists at 

the time the decision is rendered. 

Citizens to Preserve Overton Park v. 

Volpe, 401 U.S. 402 (1972). Thus, the 

granting of any benefit request by DHS 

is not based solely on what is provided 

at the time of the initial request and is 

contingent on the fact that 

circumstances will not change during 

the processing of a benefit request in 

such a way so as to render the applicant 

ineligible. This change will reduce any 

confusion that may exist for those who 

believe that eligibility is based solely on 

what is provided at the time of the 

initial request and instead will clarify 

that eligibility is subject to change if 

circumstances change while processing 

occurs. This clarification may be 

especially important in the transformed 

electronic environment. This revision is 

not a substantive change in eligibility 

criteria and is thus appropriate for this 

final rule. 

Sections 103.2, paragraphs (b)(4) and 

(b)(5) are revised to refer applicants and 

petitioners to form instructions and 

other sources for information on the 

format in which supporting 

documentation must be submitted. It is 

generally unnecessary to specify the 

form that an evidentiary document must 

be in unless a higher degree of 

authenticity is required than a 

photocopy or reasonably legible 

facsimile. The form instructions for a 

benefit request will clearly spell out 

when a copy, original, certified, 

notarized, or other specific type of 

document is required to meet the 

applicable evidentiary standard. In its 

transformation initiative, DHS wants to 

accept and use scanned or electronic 

documents whenever possible and 

believes that this approach will also be 

the most convenient method for the 

public. As stated, regulatory provisions 

that reflect a paper application process 

impede that goal. Allowing a digital 

format instead of a copy would not 

affect a person’s eligibility for a benefit. 

Thus, this change is made without prior 

public comment. 

This rule also eliminates express 

reference to Form G–884, currently used 

to request the return of original 

documents, and advises the public to 

follow USCIS instructions for requesting 

such documents. Eliminating reference 

to a specific form promotes greater 

regulatory flexibility and better 

accommodates future processing 

efficiencies. USCIS anticipates using the 

current form for several years during the 

transformation process and will 

continue to provide instructions for 

requesting the return of paper 

documents retained in DHS files 

through its Internet Web site, the USCIS 


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Customer Service Center, or other 

methods. See new 8 CFR 103.2(b)(4). 

Section 103.3 is amended by revising 

the term ‘‘shall file’’ to read ‘‘must 

submit’’ and revising the phrase ‘‘with 

the office where the unfavorable 

decision was made’’ to read ‘‘as 

indicated in the applicable form 

instructions’’ in the last sentence in 

paragraph (a)(2)(i). This change will 

make this section more consistent with 

the changes made and terminology used 

in the Filing Location Rule. The word 

‘‘shall’’ is less clear than ‘‘must’’ so 

substituting ‘‘must’’ clarifies the 

provision without changing the clear 

meaning. While the terms ‘‘file’’ and 

‘‘filing’’ are not changed throughout 8 

CFR by this rule, the amendment is apt 

in this instance for clarity because the 

term ‘‘file’’ seems to imply a paper 

environment, as opposed to ‘‘submit,’’ 

which lends itself more clearly to both 

paper and electronic submissions. The 

provision requiring submission to a 

certain office location is removed in 

favor of form instructions which, as 

defined in this rule, will provide the 

flexibility to centralize or otherwise 

shift appeals based on future needs and 

developments. No substantive change is 

made to eligibility requirements. 

As transformation progresses, USCIS 

develops system interfaces with other 

government information systems, 

reducing reliance on various forms of 

documentation currently supplied by 

benefit applicants. For example, proof of 

military service is more readily obtained 

by USCIS directly from the Department 

of Defense than from the applicant. 

Section 103.2, paragraph (b)(5) has been 

amended to clarify that USCIS may 

waive submission of documentation that 

it may obtain through direct interfaces. 

Section 103.5a is redesignated as 

103.8 and revised. This revision 

provides for electronic delivery of 

notices instead of paper notices in 

appropriate circumstances at the 

petitioner’s or applicant’s request. 

Absent such a request, a mailed paper 

notice remains the default option at this 

time. Amendments to the descriptions 

of routine and personal service used for 

delivery of notices now include a 

specific provision for the use of 

electronic media for such purposes. For 

consistency of process, this rule amends 

other sections to remove specific 

requirements of notice and instead cross 

references the notice and service 

provisions in 8 CFR 103.8. 

Section 103.5b is redesignated as 

103.9 and revised. References to Form I– 

824, currently used to request further 

action on an approved benefit request, 

are removed. As transformation 

progresses, it is envisioned that the need 

for this form will diminish because 

account holders will request the 

services currently provided by the form 

by accessing their own accounts. 

Section 103.7, paragraph (d) is 

amended to remove specific references 

to officials authorized to certify 

immigration records. This change will 

give USCIS flexibility to delegate 

authority for this activity to various 

officials as necessary for efficiency. 

Section 103.2, paragraph (e), relating 

to fingerprint requirements, is revised 

and redesignated as sections 103.16 and 

103.17. These sections have been 

reorganized and revised to reflect that 

most USCIS biometric collection is now 

accomplished digitally at USCIS offices. 

Paragraph (c) of 8 CFR 103.2, explaining 

the consequences of failure to provide 

biometric information, must be read in 

conjunction with 8 CFR 103.2(b)(13), 

which provides standard exceptions for 

such failure. This regulation removes 

references to specific offices where 

applicants must report for biometrics 

collection to allow USCIS greater 

flexibility for handling such matters. 

USCIS will continue to provide such 

information through other means. 

Newly designated 8 CFR 103.17 

describes biometric service fee 

collection requirements formerly 

described in 8 CFR 103.2(e). Revisions 

to this section more clearly reflect 

existing regulatory requirements 

regarding the authorized collection of 

biometrics. 

Sections 103.8 through 103.11 and 

sections 103.21 through 103.36, which 

pertain to Freedom of Information and 

Privacy Act requests, are removed 

because they are outdated. Current DHS 

policies and procedures on these 

subjects are contained in 6 CFR part 5. 

New 8 CFR 103.42 has been added to 

direct readers to the DHS regulations. 

Regulations relating to submission 

and consideration of benefit requests are 

located at 8 CFR 103.2(a)(1) (general 

filing instructions), 8 CFR 103.2(b)(1) 

(demonstrating eligibility for the 

benefit), 8 CFR 103.2(b)(16)(ii) 

(consideration of evidence in 

discretionary decisions), and in the form 

instructions such as for Form I–129 

‘‘* * * By signing this form you have 

stated, under penalty of perjury (28 

U.S.C. 1746) that all information and 

documentation submitted with this form 

are true and correct. You have also 

authorized the release of any 

information from your records that 

USCIS may need to determine eligibility 

for the benefit you are seeking and 

consented to USCIS verification of such 

information.’’ Accordingly, because 

processing and handling information 

which is broadly applicable to all USCIS 

benefit types is set forth in both 8 CFR 

103.2 and in the instructions to various 

forms, USCIS is removing such 

information from regulations governing 

consideration of specific benefits. 

Section 207.1(a) is revised to instruct 

prospective applicants to ‘‘submi[t] an 

application, including biometric 

information, in accordance with form 

instructions.’’ The term ‘‘form 

instructions’’ is in turn defined in 8 CFR 

1.2 as those prescribed by USCIS on its 

official Internet Web site currently, 

notwithstanding other versions in 

circulation, and may also include nonform guidance such as appendices, 

exhibits, guidebooks, or manuals. In the 

context of the U.S. Refugee Admissions 

Program (USRAP), USCIS does not 

publish its Form I–590, with 

instructions, for general public use. 

Instead, access to the USRAP is 

managed by the DOS, and implemented 

by its contracted overseas processing 

entities (OPEs). OPEs assist targeted 

populations of refugee applicants with 

preparation of the Form I–590. As such, 

the term ‘‘form instructions,’’ as defined 

in 8 CFR 1.2 and used in 8 CFR 207.1(a), 

does not refer to traditional instructions 

appended to a USCIS form, but rather 

the process information that USCIS 

publishes about the USRAP. 

Sections 207.1, paragraphs (b) and (c) 

are revised by consolidating the existing 

firm resettlement rule in paragraph (b) 

and removing paragraph (c). To 

emphasize the legal relevance of the 

firm resettlement analysis, this revision 

moves the third sentence of original 

paragraph (b) to the forefront. This 

consolidated provision more clearly 

articulates that the ‘‘considerations’’ 

enumerated in new paragraphs (b)(1) 

through (b)(3) apply to the firm 

resettlement analysis generally and not, 

as may be misconstrued from the 

existing, bifurcated structure, only to an 

analysis of whether an applicant is ‘‘not 

firmly resettled.’’ No substantive 

changes are made by these structural 

modifications of the firm resettlement 

rule. 

Re-numbered paragraph 207.2(a) has 

also been re-titled from ‘‘hearing’’ to 

‘‘interview,’’ to better reflect the nature 

of USCIS interaction with refugee 

applicants. No substantive change is 

intended. 

Section 207.7(d) is amended by 

eliminating an outdated, transitional, 

alternative date (February 28, 2000) for 

measuring the 2-year deadline by which 

such petitions must be filed; there is no 

change to the discretionary extension 

for humanitarian reasons. Lastly, in 

anticipation of future processing 

efficiencies afforded by transformation, 

this rule eliminates an express 


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requirement that ‘‘separate’’ petitions be 

filed for each qualifying family member, 

in favor of guidance that petitioners file 

‘‘in accordance with the form 

instructions.’’ USCIS contemplates 

retaining in the ‘‘form instructions’’ the 

requirement that ‘‘separate’’ petitions be 

filed for each qualifying family member, 

until such time that USCIS has in place 

transformed systems to promote 

additional processing efficiencies such 

as consolidating petitions for qualifying 

family members. This change will 

accommodate the adoption of such 

efficiencies without need for a future 

rulemaking. 

Section 207.7(f)(3) is amended by 

adding an opening phrase to the last 

sentence, ‘‘[f]or a derivative inside or 

arriving in the United States.’’ While 

this section, entitled ‘‘Benefits,’’ applies 

to both paragraphs (f)(1) (derivative in 

the United States) and (f)(2) (derivative 

outside the United States), the last 

sentence was added to clarify that the 

benefit of employment authorization, 

incident to refugee status, becomes 

available to overseas beneficiaries, not 

upon approval of the family petition, 

but upon travel and their admission into 

the United States as refugees. 

Section 208.1(b) is revised by 

replacing ‘‘The Director of International 

Affairs’’ with ‘‘The Associate Director of 

USCIS Refugee, Asylum, and 

International Operations (RAIO)’’ where 

it first appears and with ‘‘Associate 

Director of RAIO’’ in later references. 

Similarly, section 208.2(a) is revised by 

replacing ‘‘Office of International 

Affairs’’ in the title with ‘‘Refugee, 

Asylum, and International Operations 

(RAIO),’’ and by replacing ‘‘the Office of 

International Affairs’’ wherever it 

appears with ‘‘RAIO.’’ As stated earlier 

this rule removes specific officers’ titles, 

functions, and authorities where 

possible, and employee authorities are 

generally established pursuant to 8 CFR 

section 2.1. However, DHS has 

determined that the roles, functions, 

and authorities of asylum officers and 

who they report to are sufficiently 

distinct as provided in the INA so as to 

preclude substitution of USCIS for those 

titles where they appear in the Code of 

Federal Regulations. For example, INA 

section 235(b)(1)(E), 8 U.S.C. 

1225(b)(1)(E), under the expedited 

removal statute, defines ‘‘asylum 

officer’’ as an ‘‘* * * immigration 

officer who (i) has had professional 

training in country conditions, asylum 

law, and interview techniques 

comparable to that provided to full-time 

adjudicators of applications under 

section 208, and (ii) is supervised by an 

officer who meets the conditions 

described in clause (i) and has had 

substantial experience adjudicating 

asylum applications.’’ Retaining these 

titles is not expected to impair USRAP 

and RAIO from applying the principles 

of transformation to their operations in 

the future. 

Section 208.5(b)(1)(ii) is revised to 

perfect an amendment made in the 

Filing Location Rule. In that rule, 8 CFR 

208.4(b) was revised by referring 

applicants to the instructions on the 

Form I–589 for specific filing 

information and thereafter by 

eliminating specific instructions 

contained in former sections 

208.4(b)(1)–(5). This rule implements a 

conforming amendment to that earlier 

revision by removing the phrase 

‘‘pursuant to § 208.4(b)’’ in the last 

sentence of 8 CFR 208.5(b)(1)(ii). 

Moreover, the Filing Location Rule 

replaced the term ‘‘district director’’ 

with ‘‘DHS office’’ in two locations. 

With the elimination of the reference to 

the ‘‘district director’’ in former 8 CFR 

208.4(b)(5) (relating to asylum 

applications filed with the district 

director), the remaining reference to 

‘‘the DHS office’’ in new 8 CFR 

208.5(b)(1)(ii) lacks an anchor to an 

earlier reference. To avoid confusion as 

to whether a specific DHS office is 

empowered under this provision, 8 CFR 

208.5(b)(1)(ii) is revised by replacing 

‘‘the DHS office’’ with simply ‘‘DHS’’ 

wherever it appears. 

Section 208.7(c) is amended by 

replacing a mandatory requirement (if 

applicable) to submit ‘‘proof that he or 

she has continued to pursue his or her 

asylum application before an 

immigration judge or sought 

administrative or judicial review.’’ In 

anticipation of future system 

efficiencies afforded by transformation 

that may allow USCIS to gather the data 

directly from the Executive Office for 

Immigration Review (EOIR) within the 

Department of Justice and federal 

courts, USCIS is modifying this 

provision by replacing the mandatory 

production requirement with more 

flexible text: ‘‘* * * USCIS may require 

that an alien establish * * *’’. Until 

such time that system improvements are 

in place, USCIS will continue to require 

production of such evidence and will 

communicate such requirements 

through form instructions, as defined in 

8 CFR 1.2. 

Section 208.21(c) is amended by 

removing an outdated, transitional, 

alternative date (February 28, 2000) for 

measuring the 2-year deadline by which 

such petitions must be filed; there is no 

change to the discretionary extension 

for humanitarian reasons. Lastly, in 

anticipation of future processing 

efficiencies afforded by transformation, 

this rule eliminates an express 

requirement that ‘‘separate’’ petitions be 

filed for each qualifying family member, 

in favor of ‘‘in accordance with the form 

instructions.’’ USCIS contemplates 

retaining in the ‘‘form instructions’’ the 

requirement that ‘‘separate’’ petitions be 

filed for each qualifying family member, 

until such time that USCIS has in place 

transformed systems to promote 

additional processing efficiencies such 

as consolidating petitions for qualifying 

family members. 

Section 208.21(d) is revised similar to 

section 208.21(c) and for the same 

reasons. 

Section 209.1(c) is amended by 

removing the last clause relating to a 

vaccination supplement completed by a 

designated civil surgeon. USCIS 

recently consolidated the separate 

vaccination supplement and record of 

the medical examination into one form, 

Report of Medical Examination and 

Vaccination Record. Thus the language 

referring to a separate supplement is 

outdated. Relevant guidance will 

continue to be available in form 

instructions. This language is also 

deleted in anticipation of future 

processing efficiencies wherein civil 

surgeons may have online accounts 

through which they may submit reports 

directly to USCIS instead of completing 

paper forms. 

Section 209.2(e) is revised by 

removing the first two sentences of the 

original paragraph, retaining only the 

last sentence. In the original paragraph, 

there was an internal inconsistency 

between the first sentence (requiring 

interview of all applicants) and the third 

sentence (allowing USCIS to determine 

whether an interview was warranted). 

This revision retains only the sentence 

that allows USCIS to determine on a 

case-by-case basis whether an interview 

is warranted. This result is consistent 

with the companion paragraph at 

existing 8 CFR 209.1(d) (refugee 

adjustment interviews) and current 

USCIS practice. 

Section 209.2(f) is revised for 

purposes of plain language. To align 

with the companion paragraph at 8 CFR 

209.1(e), text was added stating that 

USCIS will notify a denied applicant of 

the right to renew an adjustment request 

in removal proceedings before EOIR. 

Otherwise, no substantive change is 

intended. 

Section 223.2 is reorganized and 

revised for clarity in addition to 

removing references to forms. The 

revision also clarifies existing authority 

to accept and process requests for 

refugee travel documents overseas. 

Several paragraphs within 8 CFR part 

264 are revised and reorganized for 


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clarity. Section 264.1 (registration and 

fingerprinting requirements) is revised 

and reorganized, removing obsolete 

instructions, general information 

duplicated in 8 CFR 103.2, and 

fingerprinting requirements now 

described in 8 CFR 103.16. Section 

264.5, paragraph (d) (replacement of 

permanent resident cards for 

conditional residents) is revised to 

remove information included on the 

form instructions for Form I–90. New 8 

CFR 264.5(h) is added to replace 

information previously located in 8 CFR 

264.1(h). Section 264.6 is revised to 

remove obsolete instructions and for 

clarity. 

IV. Discussion of Comments Received 

in Response to the April 29, 2003, 

Interim Rule 

DHS published an interim rule with 

request for comments revising 8 CFR 

103.2(a)(2) to permit submission of 

benefit requests with an electronic 

signature when such requests are 

submitted in an electronic format rather 

than on a paper form. Electronic 

Signature on Applications and Petitions 

for Immigration and Naturalization 

Benefits, 68 FR 23010 (April 29, 2003). 

That rule implemented the electronic 

filing and the acceptance of electronic 

signatures requirement of GPEA and 

meet the requirements of section 461 of 

the Homeland Security Act of 2002 for 

a study of the feasibility of online filing 

and to establish an electronic tracking 

system for applications in order to 

provide applicants with access to the 

status of their applications. Public Law 

107–296 title IV, subtitle E, section 461, 

118 Stat. 2202 (Nov. 22, 2002), 6 U.S.C. 

278. 

USCIS received 13 public comments 

relating to the interim rule. Virtually all 

commenters supported the use of 

electronic signatures and urged USCIS 

to do more to promote a more robust 

and user-friendly electronic filing 

environment. Several of the commenters 

made specific proposals recommending 

enhancements to the current limited 

electronic filing procedures available to 

applicants and petitioners. Various 

commenters suggested enhancements to 

the electronic filing process, such as 

acceptance of credit cards for electronic 

payment, re-use of data for subsequent 

transactions, interfaces and 

compatibility with commercial 

immigration software, standards for 

electronic submission of supporting 

documents, provisions for attorneyclient electronic collaboration in the 

preparation of benefit requests, 

improvements to current biometric 

collection procedures, and protection of 

the privacy of data. DHS encourages 

these types of comments in response to 

this rulemaking. The comments will not 

be addressed here individually because 

they exceed the scope of the interim 

rule, which was limited to the electronic 

signature process. The broad subject of 

the comments, electronic filing of 

USCIS benefit requests, will be more 

fully addressed as the USCIS 

transformation progresses. 

Several commenters raised concerns 

about the security of electronic 

signatures and described the pros and 

cons of various existing technologies. 

The interim rule did not specify the 

technology which will be employed by 

USCIS for the capture and verification 

of electronic signatures. As the 

transformation initiative is 

implemented, USCIS will explore 

alternatives and adopt an appropriate 

solution which is fully compliant with 

DHS security standards and ensures 

privacy. Therefore, no changes are made 

to the interim rule as a result of the 

comments received and the interim rule 

is adopted as final without change. 

V. Discussion of Other Interim Final 

Rules Being Finalized 

USCIS conducted a review of current 

and past agency regulatory activities 

and identified six interim rules for 

which no public comments were 

received and which were never 

completed as final rulemakings. Because 

some of the provisions of these interim 

rules are now either expired or further 

modified by this rulemaking, DHS is 

adopting them as final and, where 

appropriate, removing or revising the 

regulatory language. The interim rules 

that are adopted as final include: 

• Application for Refugee Status; 

Acceptable Sponsorship Agreement 

Guaranty of Transportation, 64 FR 

27660 (May 21, 1999); 

• Adjustment of Status for Certain 

Syrian Nationals Granted Asylum in the 

United States, 66 FR 27445 (May 17, 

2001); 

• Eliminating the Numerical Cap on 

Mexican TN Nonimmigrants, 69 FR 

11287 (March 10, 2004); 

• Allocation of H–1B Visas Created 

by the H–1B Visa Reform Act of 2004, 

70 FR 23775 (May 5, 2005); 

• Classification of Certain Scientists 

of the Commonwealth of Independent 

States of the Former Soviet Union and 

Baltic States as Employment-Based 

Immigrants, 70 FR 21129 (April 25, 

2005); and 

• Revoking Grants of Naturalization, 

65 FR 17127 (March 31, 2000). 

A summary of, the legal authority for, 

the public comments received on, and 

the changes made to each of these 

interim rules is as follows: 

A. Application for Refugee Status; 

Acceptable Sponsorship Agreement 

Guaranty of Transportation, RIN 1615– 

AA24 

This interim rule required that all 

sponsorship agreements be secured 

before an applicant is granted admission 

as a refugee at a U.S. port-of-entry 

(POE). This is a separate decision from 

whether or not such persons can be 

admitted to the U.S. in refugee status. 

This rule permits advantageous 

treatment for applicants for refugee 

status who have their eligibility 

interviews with a DHS officer scheduled 

before a sponsorship agreement has 

been secured. 

This rule implemented section 702 of 

the Immigration Act of 1990 (IMMACT 

90), Public Law 101–649, 104 Stat. 4978 

(Nov. 29, 1990). It allowed a U.S. 

citizen, a lawful permanent resident 

petitioner, or an alien applicant for 

permanent resident status to seek an 

exemption from the general prohibition 

against approval of immigration benefits 

based upon a marriage entered into 

while the beneficiary or applicant was 

under deportation, exclusion or related 

judicial proceedings. The rule 

established procedures to allow persons 

with bona fide marriages to obtain 

immigration benefits without complying 

with the two year foreign residency 

requirements instituted by the 

Immigration Marriage Fraud 

Amendments of 1988 (IMFA). This rule 

amended 8 CFR 204.2 and 245.1. USCIS 

is not modifying these provisions in the 

current rule. 

The Act authorized the Attorney 

General to admit refugees to the United 

States under certain conditions. INA 

section 207, 8 U.S.C. 1157. There is no 

requirement for an applicant to have 

secured sponsorship in advance of a 

determination that he or she meets the 

Act’s definition of refugee. INA section 

101(a)(42), 8 U.S.C. 1101(a)(42). This 

rule clarified that sponsorship is a 

requirement separate and apart from the 

determination that an applicant is 

classified as a refugee. 

USCIS received no comments on this 

interim final rule. 

The interim rule amended 8 CFR 

207.2. That section is revised further by 

this rule to accommodate transformation 

by removing form numbers, job titles, 

extraneous provisions, and internal 

procedure. USCIS has not changed the 

substance of the provisions added by 

the interim rule. 

B. Adjustment of Status for Certain 

Syrian Nationals Granted Asylum in the 

United States, RIN 1615–AA57 

This rule provided adjustment of 

status to lawful permanent residents for 


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53774 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

certain nationals of Syria. The interim 

rule discusses the eligibility 

requirements and sets forth procedures 

for the application of persons wanting to 

adjust their status. 

The Act provides that all aliens 

granted asylum are eligible to apply for 

adjustment of status 1 year after being 

granted asylum, subject to a maximum 

of 10,000 per year. INA section 209, 8 

U.S.C. 1159. Pub. L. 106–378, 114 Stat. 

825 (Oct. 27, 2000), waived the annual 

limit for a group of Jewish Syrian 

nationals who were allowed to depart 

Syria and enter the United States after 

December 31, 1991, and who were 

subsequently granted asylum in the 

United States. 

No public comments were received. 

This final rule removes 8 CFR 245.20 

which was added by the interim rule. 

That provision is obsolete because no 

eligible applicants remain. 

C. Eliminating the Numerical Cap on 

Mexican TN Nonimmigrants, RIN 1615– 

AA96 

This interim rule eliminated the 

annual numerical cap on Mexican 

Professionals under the North American 

Free Trade Agreement (NAFTA). It also 

eliminated the petition for a Mexicanbased NAFTA professional and the 

corresponding labor condition 

application (LCA) requirement. Mexican 

citizens who come to the U.S. under a 

TN classification must apply directly to 

DOS for a visa. DOS will then 

adjudicate the alien’s eligibility for TN 

classification. Upon approval and 

issuance of a visa, the alien may then 

apply for admission to the United 

States. These changes to the regulations 

are consistent with NAFTA’s 

requirement that the annual numerical 

cap and petition provisions for Mexican 

professionals sunset by January 1, 2004. 

On December 17, 1992, the United 

States, Canada and Mexico signed the 

North American Free Trade Agreement 

(NAFTA), which entered into force on 

January 1, 1994. Public Law 103–182, 

title I, section 101, 107 Stat. 2061 

(1993), 19 U.S.C. 3311. NAFTA allows 

for the temporary entry of qualified 

businesspersons from each of the parties 

to the agreement. See Public Law 103– 

182, title III, section 341(a), 107 Stat. 

2116 (1993), 19 U.S.C. 3401. 

Professionals under the NAFTA are 

admitted to the United States as Trade 

NAFTA (TN) nonimmigrant aliens. INA 

section 214(e), 8 U.S.C. 1184(e). In 

Appendix 1603.D.4 of NAFTA, NAFTA 

established an annual numerical ceiling 

of 5,500 on Mexican TN admissions for 

a period of 10 years. NAFTA Appendix 

1603.D.4, INA section 214(e)(4), (5), 8 

U.S.C. 1184(e)(4), (5). The interim rule 

eliminated the annual numerical cap for 

citizens of Mexico seeking a TN visa as 

required by expiration of the 10-year 

period. Id. 

No public comments were received. 

This rule finalizes the interim rule 

without change. 

D. Allocation of Additional H–1B Visas 

Created by the H–1B Visa Reform Act of 

2004, RIN 1615–AB32 

This interim rule implemented 

changes made by the Omnibus 

Appropriations Act for Fiscal Year 2005 

to the numerical limits of H–1B 

nonimmigrant visa category and the fees 

for filing of H–1B petitions. It also: (1) 

Informed the public of procedures 

USCIS used to allocate in fiscal year 

2005, as well as for the future fiscal 

years starting with fiscal year 2006; (2) 

amended and clarified the process that 

USCIS will use in the future in 

allocating all petitions subject to 

numerical limitations under the Act; 

and (3) alerted the public about 

additional fees that must accompany 

certain H–1B petitions. 

An H–1B nonimmigrant is an alien 

employed in a specialty occupation or a 

fashion model of distinguished merit 

and ability. INA section 101(a)(15)(H), 8 

U.S.C. 1101(a)(15)(H); 8 CFR 214.2(h)(4). 

A specialty occupation requires 

theoretical and practical application of 

a body of specialized knowledge and 

attainment of a bachelor’s or higher 

degree in the specific specialty as a 

minimum qualification for entry into 

the United States. Id. The Act provides 

that the number of nonimmigrants who 

may be issued H–1B visas or granted H– 

1B status may not exceed 65,000 per 

fiscal year. INA section 214(g), 8 U.S.C. 

1184(g). The 65,000 cap does not 

include H–1B employees of institutions 

of higher education, nonprofit research 

organizations, or governmental research 

organizations. The H–1B Visa Reform 

Act of 2004 added a third exception to 

the 65,000 limit, by providing that an 

additional 20,000 visas would be 

available for an alien who has earned a 

master’s or higher degree from a United 

States institution of higher education. 

Omnibus Appropriations Act for Fiscal 

Year 2005, Public Law 108–447, div. J, 

title IV, 118 Stat. 2809 (Dec. 8, 2004); 

INA section 214(g)(5)(C), 8 U.S.C. 

1184(g)(5)(C). This law also raised the 

American Competitiveness and 

Workforce Improvement Act of 1998 fee 

(ACWIA) to $1,500 or $750, depending 

on the size of the employer, and 

imposed a $500 fraud prevention and 

detection fee (fraud fee) on certain 

employers filing H–1B petitions. Id; INA 

section 214(c)(9), 8 U.S.C. 1184(c)(9). 

These fees are required in addition to 

the base USCIS filing fee. 

No public comments were received. 

This rule finalizes the interim rule 

without change. 

E. Classification of Certain Scientists of 

the Commonwealth of Independent 

States of the Former Soviet Union and 

the Baltic States as Employment-Based 

Immigrants, RIN 1615–AB14 

This interim rule codified the new 

sunset date of September 30, 2006, for 

the Soviet Scientists Immigration Act of 

1992 (SSIA). The SSIA allowed USCIS 

to allot visas to eligible scientists or 

engineers of the independent states of 

the former Soviet Union and the Baltic 

states with expertise in nuclear, 

chemical, biological, or other hightechnology field or defense projects. The 

rule also codified a new numerical limit 

of 950 visas (excluding spouses and 

children if accompanying or following 

to join). 

The SSIA provided that up to 950 

immigrant visas may be allotted to 

eligible scientists or engineers of the 

independent states of the former Soviet 

Union and the Baltic states if the 

scientists or engineers had expertise in 

nuclear, chemical, biological or other 

high technology fields or were working 

on such high technology defense 

projects, as defined by the Attorney 

General. Public Law 102–395, title VI, 

section 610, 106 Stat. 1874 (Oct. 6, 

1992); INA section 203(b)(2)(A), 8 U.S.C. 

1153(b)(2)(A). This program expired on 

October 24, 1996. The Foreign Relations 

Authorization Act, Fiscal Year 2003 

reinstated the program and, among other 

changes not applicable to this interim 

rule, provided that it would expire 4 

years from the date of enactment. Public 

Law 107–228, div. B, title XIII, section 

1304(d), 116 Stat. 1437 (Sept. 30, 2002); 

INA section 203(b)(2)(A), 8 U.S.C. 

1153(b)(2)(A). 

No public comments were received. 

This rule removes provisions 

pertaining to the SSIA because they 

have expired. 8 CFR 204.10. 

F. Revoking Grants of Naturalization, 

RIN 1615–AA30 

This rule amended the process by 

which the Service would 

administratively reopen and revoke a 

grant of naturalization. This interim rule 

changed the burden of proof that the 

Service would use in revocation 

proceedings and made other changes to 

the administrative process. 65 FR 17127 

(March 31, 2000). 

The Secretary has sole authority to 

grant a person naturalization as a United 

States citizen. INA section 310(a), 

8 U.S.C. 1421(a). The Act also provides 


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DHS with the authority ‘‘to correct, 

reopen, alter, modify, or vacate an order 

naturalizing [a] person’’ as a United 

States citizen. INA section 340(h), 8 

U.S.C. 1451(h). The interim rule was 

promulgated under this authority. 

No public comments were received. 

This rule removes regulations that 

were invalidated on July 20, 2000, by 

the Ninth Circuit Court of Appeals in a 

nationwide class action lawsuit. 

Gorbach v. Reno, 219 F.3d 1087 (9th 

Cir. 2000) (en banc). That decision held 

that the Attorney General lacked the 

statutory authority to promulgate 

regulations permitting revocation of 

citizenship of a naturalized citizen 

through administrative proceedings. Id. 

See also INA sections 310(a), 340(a), (h), 

8 U.S.C. 1421(a), 1451(a), (h). The 

government did not seek Supreme Court 

review of that decision, thus USCIS is 

precluded from using those regulations 

to revoke naturalization. This rule 

removes the applicable regulations from 

8 CFR 340.10. 

VI. Discussion of Comments Received 

in Response to the June 5, 2009, Interim 

Rule 

On June 5, 2009, DHS published an 

interim rule in the Federal Register 

‘‘Removing References to Filing 

Locations and Obsolete References to 

Legacy Immigration and Naturalization 

Service; Adding a Provision To 

Facilitate the Expansion of the Use of 

Approved Electronic Equivalents of 

Paper Forms.’’ The rule revised many 

sections of the 8 CFR, many of which 

are further revised by this rulemaking. 

USCIS received only three comments 

in response to this rulemaking: one from 

an immigration practitioner, one from 

an organization of immigration 

practitioners, and one from an 

organization representing businesses 

which frequently rely on international 

personnel. A discussion of those 

comments follows. 

One commenter noted that the 

revision to 8 CFR 214.2(l)(2)(i) 

apparently unintentionally added to the 

petitioner’s burden by requiring that 

‘‘the petitioner shall advise * * * 

whether a previous petition has been 

filed for the same beneficiary * * *’’ 

whereas the original language stated 

‘‘the petitioner shall advise * * * 

whether it has filed a petition for the 

same beneficiary.’’ (Emphasis in 

original). Although this change was 

inadvertent and not intended to affect 

any right, the requirement as revised is 

entirely consistent with both the INA 

and the current form instructions. The 

Act limits the amount of time an alien 

can spend in the United States as an 

L–1 or H nonimmigrant (not just for a 

particular petitioner). See section 

214(c)(2)((D) of the Act, 8 U.S.C. 

1184.2(c)(2)(D). The current Form I–129, 

Supplement L, question 2 requires 

submission of copies of USCIS-issued 

documents relating to periods of H or L 

stay in the United States during the past 

seven years. It does not limit such 

submission to documents relating to the 

current petitioner. Accordingly, USCIS 

has not adopted the commenter’s 

suggestion that we revert to the prior 

language. 

The commenter made an additional 

comment regarding the omission of the 

word ‘‘of’’ from the first sentence in 8 

CFR 214.2(l)(2)(ii). USCIS appreciates 

notification by the commenter of the 

typographical error which will be 

corrected in this rule. As previously 

discussed, 8 CFR part 214 will be 

reorganized in a future transformationrelated rulemaking. 

Another commenter suggests that 

USCIS avail itself of the opportunity to 

revise 8 CFR 212.7 to reflect the fact that 

K nonimmigrants may apply for a 

waiver only pursuant to section 

212(d)(3) of the Act and that such 

persons may only apply for a waiver 

under section 212(h) or 212(i) of the Act 

at the time of application for adjustment 

of status. The commenter noted that 

both the regulation and form instruction 

for Form I–601, Application for Waiver 

of Ground of Inadmissibility, are 

incorrect. USCIS appreciates the 

comment and the commenter’s 

suggestions may be addressed in a 

future rulemaking or with a form 

revision. However, the interim rule was 

limited to removing filing jurisdiction 

limitations from regulations. Thus the 

commenter’s suggestion exceeds the 

scope of the changes made and will not 

be adopted in this rulemaking. 

The final commenter addressed the 

removal of filing jurisdictions from 

regulations. The commenter expresses 

its concern that an accelerated process 

for changing filing locations could have 

an adverse impact on the public. The 

commenter was especially concerned 

about situations involving statutory or 

regulatory deadlines for filing where the 

public may have insufficient notice of 

the proposed change. 

The same commenter, while 

supportive of USCIS’ transformation 

efforts, offered several suggestions to 

minimize the potential adverse impacts 

of this rulemaking. The commenter 

recommended that, at each place the 

regulations are amended, to direct the 

public to ‘‘instructions on the form,’’ 

and that USCIS add a phrase to explain 

that form instructions will be available 

on line, that any change to the filing 

instructions will be provided to the 

public by formal announcement no less 

than 30 days in advance of the change, 

and that when a filing jurisdiction 

changes, USCIS offices formerly 

designated to receive such filings 

continue to accept them for at least 180 

days after the effective date of the 

change. 

USCIS understands and appreciates 

the commenter’s concerns. We realize 

that numerous changes in filing 

instructions and locations may be 

confusing. It is our intent to reduce 

filing locations and complexity, and 

change them less often, not more. In the 

case of time-sensitive benefit requests, 

USCIS will keep such factors in mind 

when making changes and make 

adjustments to the change schedule so 

as to not result in missing a deadline 

because of the filing location change. 

The commenter suggested that the 

preamble language describing the USCIS 

National Customer Service Center 

(NCSC) as a source of information 

regarding filing locations be removed 

because its membership has not gotten 

consistently reliable information from 

this source. The commenter 

recommended that USCIS customer 

service representatives be directed to 

consult the online form instructions 

before offering any advice to applicants 

regarding filing location. USCIS regrets 

any incorrect information that may be 

provided and always endeavors to 

provide the NCSC staff with information 

regarding filing requirements so 

questions may be answered. USCIS 

encourages the public to report possible 

erroneous or outdated messages so that 

they may be corrected. No change to the 

interim rule is made as a result of this 

comment. 

The commenter also suggests that 

information about changes to form and 

filing instructions be posted in a 

consistent and prominent location on 

USCIS Web site along with a 

chronological list of all changes to form 

instructions, including filing location 

changes. As the interim rule stated, 

filing locations are provided on USCIS 

form instructions. The current official 

version of the form and instructions are 

the versions on the USCIS Internet Web 

site for forms, http://www.uscis.gov/ 

forms. Also, the USCIS home page will 

alert the public and stakeholders of any 

recent or planned filing location 

changes. In addition, USCIS will 

continue to publicize filing location 

changes with press releases. Additional 

suggestions for improving the Web site 

and information sharing are welcome. 

The commenter also suggested that 

regulations mandate a 180-day 

transition period for filing location 

changes, during which USCIS would 


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53776 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

accept such benefit requests at both the 

prior and new filing location. USCIS 

works to ensure that benefit requests are 

not rejected as a result of abrupt changes 

in filing location. USCIS announces 

filing changes well in advance and 

generally includes a transition period 

considering all factors and 

circumstances surrounding the change. 

However, forwarding mail from offices 

that formerly handled requests to the 

new office is very expensive and an 

inefficient use of USCIS fee revenue. 

USCIS will provide as much lead time 

as possible before making filing changes 

and will implement the changes in such 

a way so as to minimize the impacts of 

the change. However, a 180 day 

implementation period for each filing 

change is impracticable and will not be 

adopted. 

The commenter also expressed a 

concern that USCIS intends to stop 

producing and distributing a paper 

version of its form instructions. As 

transformation continues, the filing of 

paper forms is expected to decrease 

substantially as USCIS expects 

electronic means to become the 

preferred filing method. As was the goal 

of GPEA and has been the experience of 

other Federal agencies that provide 

electronic filing options, in the future 

certain forms or requests may lend 

themselves to a totally electronic 

submission with no paper option. 

Nevertheless, at this time, as stated 

elsewhere in this preamble, USCIS will 

continue to provide paper versions of 

most forms and instructions as well as 

portable document format or other 

electronic versions through its Internet 

Web site. Further, the electronic 

versions of form instructions will 

parallel the written form instructions 

precisely, so the method chosen should 

cause no inconsistencies in benefit 

eligibility or adjudication. 

The commenter also suggested that 

USCIS provide access to earlier versions 

of forms and instructions. Following a 

form’s revisions, USCIS often provides 

that previous version of the form are 

acceptable until further notice or for a 

prescribed period. However, when 

changes are made to a form because 

eligibility criteria are changed by law or 

regulation, the previous version of a 

form may be outdated, incomplete, and 

unacceptable. Further, for ease of 

administration and consistency in 

adjudication, USCIS prefers to receive 

the most current version so the 

employee reviewing the form knows 

where to look for the required data 

elements. Thus USCIS sees little value 

in providing previous versions of forms 

as a general policy or requirement, and 

the commenter’s suggestion has not 

been adopted. 

The commenter also suggested that 

any elimination of geographically-based 

jurisdiction should be coupled with a 

new model for determining such 

jurisdiction. The interim rule gave 

USCIS greater flexibility to alter filing 

locations, but it does not change how 

internal responsibilities for adjudicating 

benefit requests are prescribed. For 

many benefit requests, notwithstanding 

their removal from the CFR, filing 

locations will seldom or not change. 

USCIS will continue to make changes in 

filing, appearance or jurisdictional 

requirements with the convenience of 

and service to applicants, petitioners, 

and beneficiaries as a primary concern. 

Thus, in response to this comment, 

methods of determining jurisdiction are 

not revised in this rule. 

VII. Regulatory Requirements 

A. Administrative Procedure Act 

The Administrative Procedure Act 

(APA) requires DHS to provide public 

notice and seek public comment on 

substantive regulations. See 5 U.S.C. 

553. The APA, however, excludes 

certain types of regulations and permits 

exceptions for other types of regulations 

from the public notice and comment 

requirement. DHS issues this rule 

without providing the opportunity for 

prior notice and comment for the 

reasons described below. DHS 

nevertheless invites comments on this 

rule and will consider all timely 

comments submitted during the public 

comment period as described in the 

‘‘Public Participation’’ section. 

Removal of form numbers and titles, 

position titles, and procedural guidance, 

and reorganization and clarification of 

8 CFR. The Administrative Procedure 

Act (APA) excepts from the prior notice 

and opportunity for comment 

requirements ‘‘* * * rules of agency 

organization, procedure or practice.’’ 

5 U.S.C. 553(b)(A). This rule removes 

form numbers and titles, position titles, 

and procedural guidance, reorganizes 

and clarifies parts of 8 CFR, and makes 

changes such as removing Form I–129, 

district director, instructions for 

retaining copies of documents, and 

instructions for forwarding of files. 

Accordingly, to the extent that this rule 

adopts rules of agency organization, 

procedure or practice, those portions of 

the rule are excepted from the noticeand-comment requirements under 

5 U.S.C. 553(b)(A). 

Remove and update outdated 

provisions. This rule removes 

provisions of 8 CFR where statutory 

authorization has expired, corrects 

provisions required by statutory 

amendments or extensions, removes 

extraneous or outdated provisions, and 

corrects erroneous references. For 

example, this rule removes references to 

the Irish Peace Process Cultural and 

Training Program Act because that law 

was repealed in 2005 and removes 

nonpreference investor visas and third 

and sixth preference employment-based 

visas because authorization for these 

visas was repealed in 1990. This rule is 

a ministerial action necessary to 

conform regulations with law. 

Therefore, advance public notice and an 

opportunity for public comment is 

unnecessary and not in the public 

interest. See 5 U.S.C. 553(b)(3)(B). 

B. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

D. Executive Orders 13563 and 12866 

Executive Orders 13563 and 12866 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule is 

not a ‘‘significant regulatory action’’ 

under section 3(f) of Executive Order 

12866, Regulatory Planning and Review, 

and does not require an assessment of 

potential costs and benefits under 

section 6(a)(3) of that Order. The Office 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53777 

of Management and Budget has not 

reviewed it under Executive Order 

12866. 

There will be no additional costs 

incurred by any individual or business 

as a result of the changes in this rule. 

The rule will clarify and revise existing 

regulations and does not alter the 

regulations in a significant manner. 

Once transformation is complete, USCIS 

applicants, petitioners, representatives, 

and others will realize a significant 

savings in time and effort when 

submitting immigration benefit requests, 

seeking case status information, and 

communicating with USCIS. 

E. Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

F. Executive Order 12988 Civil Justice 

Reform 

Section 3(c) of Executive Order 12988 

requires Executive agencies to review 

regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DHS has completed the 

required review and determined that, to 

the extent permitted by law, this final 

rule meets the relevant standards of 

Executive Order 12988. 

G. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all 

Departments are required to submit to 

the Office of Management and Budget 

(OMB), for review and approval, any 

reporting and recordkeeping 

requirements inherent in a rule. Public 

Law 104–13, 109 Stat. 163 (May 22, 

1995). This rule does not impose any 

new reporting or recordkeeping 

requirements under the Paperwork 

Reduction Act. 

H. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121 (March 29, 1996), 

requires Federal agencies to consider 

the potential impact of regulations on 

small businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

When an agency makes changes 

effective through a final rule for which 

notice and comment are not necessary, 

the RFA does not require an agency to 

prepare a regulatory flexibility analysis. 

Accordingly, USCIS has not prepared a 

regulatory flexibility analysis. 

List of Subjects 

8 CFR Part 1 

Administrative practice and 

procedure, Immigration. 

8 CFR Part 100 

Organization and functions 

(Government agencies). 

8 CFR Part 103 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Freedom of 

information, Privacy, Reporting and 

recordkeeping requirements, Surety 

bonds. 

8 CFR Part 204 

Administrative practice and 

procedure, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 207 

Immigration, Refugees, Reporting and 

recordkeeping requirements. 

8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 209 

Aliens, Immigration, Refugees. 

8 CFR Part 211 

Immigration, Passports and visas, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 212 

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas, Reporting and 

recordkeeping requirements. 

8 CFR Part 213a 

Administrative practice and 

procedure, Aliens, Immigrants. 

8 CFR Part 223 

Immigration, Refugees, Reporting and 

recordkeeping requirements. 

8 CFR Part 235 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 236 

Administrative practice and 

procedure, Aliens, Immigration. 

8 CFR Part 238 

Air Carriers, Aliens, Government 

contracts, Maritime carriers. 

8 CFR Part 240 

Administrative practice and 

procedure, Immigration. 

8 CFR Part 241 

Administrative practice and 

procedure, Aliens, Immigration. 

8 CFR Part 244 

Aliens, Reporting and recordkeeping 

requirements. 

8 CFR Part 245 

Aliens, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 245a 

Aliens, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 248 

Aliens, Reporting and recordkeeping 

requirements. 

8 CFR Part 264 

Reporting and recordkeeping 

requirements. 

8 CFR Part 265 

Aliens, Reporting and recordkeeping 

requirements. 

8 CFR Part 270 

Administrative practice and 

procedure, Aliens, Employment, Fraud; 

Penalties. 

8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Employment, 

Penalties, Reporting and recordkeeping 

requirements. 

8 CFR Part 287 

Immigration, Law enforcement 

officers. 

8 CFR Part 292 

Administrative practice and 

procedure, Immigration, Lawyers, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 299 

Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 301 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 


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53778 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

8 CFR Part 310 

Citizenship and naturalization, 

Courts. 

8 CFR Part 312 

Citizenship and naturalization, 

Education. 

8 CFR Part 316 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 319 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 320 

Citizenship and naturalization, 

Infants and children, Reporting and 

recordkeeping requirements. 

8 CFR Part 322 

Citizenship and naturalization, 

Infants and children, Reporting and 

recordkeeping requirements. 

8 CFR Part 324 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 325 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 328 

Citizenship and naturalization, 

Military personnel, Reporting and 

recordkeeping requirements. 

8 CFR Part 329 

Citizenship and naturalization, 

Military personnel, Veterans. 

8 CFR Part 330 

Reporting and recordkeeping 

requirements, Seamen. 

8 CFR Part 332 

Citizenship and naturalization, 

Education, Reporting and recordkeeping 

requirements. 

8 CFR Part 333 

Citizenship and naturalization. 

8 CFR Part 334 

Administrative practice and 

procedure, Citizenship and 

naturalization, Courts, Reporting and 

recordkeeping requirements. 

8 CFR Part 335 

Administrative practice and 

procedures, Citizenship and 

naturalization, Courts, Reporting and 

recordkeeping requirements. 

8 CFR Part 336 

Administrative practice and 

procedure, Citizenship and 

naturalization, Courts, Reporting and 

recordkeeping requirements. 

8 CFR Part 337 

Citizenship and naturalization, 

Courts. 

8 CFR Part 338 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 339 

Citizenship and naturalization, 

Courts. 

8 CFR Part 340 

Citizenship and naturalization, Law 

enforcement. 

8 CFR Part 341 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 342 

Administrative practice and 

procedure, Citizenship and 

naturalization. 

8 CFR Part 343 

Citizenship and naturalization. 

8 CFR Part 343a 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 343b 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 343c 

Archives and records, Citizenship and 

naturalization, Courts. 

8 CFR Part 392 

Citizenship and naturalization, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 499 

Citizenship and naturalization. 

Accordingly, the interim rules 

published at 68 FR 23010, on April 29, 

2003; 64 FR 27660 on May 21, 1999; 66 

FR 27445 on May 17, 2001; 69 FR 11287 

on March 10, 2004; 70 FR 23775 on May 

5, 2005; 70 FR 21129 on April 25, 2005; 

and 65 FR 17127 on March 31, 2000 are 

adopted as final without change, and 

chapter I of title 8 of the Code of Federal 

Regulations is amended as follows. 

■ 1. Part 1 is revised to read as follows: 

PART 1—DEFINITIONS 

Sec. 

1.1 Applicability. 

1.2 Definitions. 

1.3 Lawfully present aliens for purposes of 

applying for Social Security benefits. 

Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 

U.S.C. 301; Pub. L. 107–296, 116 Stat. 2135; 

6 U.S.C. 1 et seq. 

§ 1.1 Applicability. 

This part further defines some of the 

terms already described in section 101 

and other sections of the Immigration 

and Nationality Act (66 Stat. 163), as 

amended, and such other enactments as 

pertain to immigration and nationality. 

These terms are used consistently by 

components within the Department of 

Homeland Security including U.S. 

Customs and Border Protection, U.S. 

Immigration and Customs Enforcement, 

and U.S. Citizenship and Immigration 

Services. 

§ 1.2 Definitions. 

As used in this chapter I, the term: 

Act or INA means the Immigration 

and Nationality Act, as amended. 

Aggravated felony means a crime (or 

a conspiracy or attempt to commit a 

crime) described in section 101(a)(43) of 

the Act. This definition applies to any 

proceeding, application, custody 

determination, or adjudication pending 

on or after September 30, 1996, but shall 

apply under section 276(b) of the Act 

only to violations of section 276(a) of 

the Act occurring on or after that date. 

Application means benefit request. 

Arriving alien means an applicant for 

admission coming or attempting to 

come into the United States at a port-ofentry, or an alien seeking transit through 

the United States at a port-of-entry, or 

an alien interdicted in international or 

United States waters and brought into 

the United States by any means, 

whether or not to a designated port-ofentry, and regardless of the means of 

transport. An arriving alien remains an 

arriving alien even if paroled pursuant 

to section 212(d)(5) of the Act, and even 

after any such parole is terminated or 

revoked. However, an arriving alien 

who was paroled into the United States 

before April 1, 1997, or who was 

paroled into the United States on or 

after April 1, 1997, pursuant to a grant 

of advance parole which the alien 

applied for and obtained in the United 

States prior to the alien’s departure from 

and return to the United States, will not 

be treated, solely by reason of that grant 

of parole, as an arriving alien under 

section 235(b)(1)(A)(i) of the Act. 

Attorney means any person who is 

eligible to practice law in, and is a 

member in good standing of the bar of, 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53779 

the highest court of any State, 

possession, territory, or Commonwealth 

of the United States, or of the District of 

Columbia, and is not under any order 

suspending, enjoining, restraining, 

disbarring, or otherwise restricting him 

or her in the practice of law. 

Benefit request means any 

application, petition, motion, appeal, or 

other request relating to an immigration 

or naturalization benefit, whether such 

request is filed on a paper form or 

submitted in an electronic format, 

provided such request is submitted in a 

manner prescribed by DHS for such 

purpose. 

Board means the Board of 

Immigration Appeals within the 

Executive Office for Immigration 

Review, Department of Justice, as 

defined in 8 CFR 1001.1(e). 

Case, unless the context otherwise 

requires, means any proceeding arising 

under any immigration or naturalization 

law, Executive Order, or Presidential 

proclamation, or preparation for or 

incident to such proceeding, including 

preliminary steps by any private person 

or corporation preliminary to the filing 

of the application or petition by which 

any proceeding under the jurisdiction of 

the Service or the Board is initiated. 

CBP means U.S. Customs and Border 

Protection. 

Commissioner means the 

Commissioner of the Immigration and 

Naturalization Service prior to March 1, 

2003. Unless otherwise specified, 

references after that date mean the 

Director of U.S. Citizenship and 

Immigration Services, the Commissioner 

of U.S. Customs and Border Protection, 

and the Director of U.S. Immigration 

and Customs Enforcement, as 

appropriate in the context in which the 

term appears. 

Day, when computing the period of 

time for taking any action provided in 

this chapter I including the taking of an 

appeal, shall include Saturdays, 

Sundays, and legal holidays, except that 

when the last day of the period 

computed falls on a Saturday, Sunday, 

or a legal holiday, the period shall run 

until the end of the next day which is 

not a Saturday, Sunday, or a legal 

holiday. 

Department or DHS, unless otherwise 

noted, means the Department of 

Homeland Security. 

Director or district director prior to 

March 1, 2003, means the district 

director or regional service center 

director, unless otherwise specified. On 

or after March 1, 2003, pursuant to 

delegation from the Secretary of 

Homeland Security or any successive redelegation, the terms mean, to the extent 

that authority has been delegated to 

such official: asylum office director; 

director, field operations; district 

director for interior enforcement; 

district director for services; field office 

director; service center director; or 

special agent in charge. The terms also 

mean such other official, including an 

official in an acting capacity, within 

U.S. Citizenship and Immigration 

Services, U.S. Customs and Border 

Protection, U.S. Immigration and 

Customs Enforcement, or other 

component of the Department of 

Homeland Security who is delegated the 

function or authority above for a 

particular geographic district, region, or 

area. 

EOIR means the Executive Office for 

Immigration Review within the 

Department of Justice. 

Executed or execute means fully 

completed. 

Form when used in connection with 

a benefit or other request to be filed 

with DHS to request an immigration 

benefit, means a device for the 

collection of information in a standard 

format that may be submitted in paper 

format or in an electronic format as 

prescribed by USCIS on its official 

Internet Web site. The term Form 

followed by an immigration form 

number includes an approved electronic 

equivalent of such form as may be 

prescribed by the appropriate 

component on its official Internet Web 

site. 

Form instructions means instructions 

on how to complete and where to file 

a benefit request, supporting evidence 

or fees, or any other required or 

preferred document or instrument with 

a DHS immigration component. Form 

instructions prescribed by USCIS or 

other DHS immigration components on 

their official Internet Web sites will be 

considered the currently applicable 

version, notwithstanding paper or other 

versions that may be in circulation, and 

may be issued through non-form 

guidance such as appendices, exhibits, 

guidebooks, or manuals. 

ICE means U.S. Immigration and 

Customs Enforcement. 

Immigration judge means an 

immigration judge as defined in 8 CFR 

1001.1(l). 

Immigration officer means the 

following employees of the Department 

of Homeland Security, including senior 

or supervisory officers of such 

employees, designated as immigration 

officers authorized to exercise the 

powers and duties of such officer as 

specified by the Act and this chapter I: 

aircraft pilot, airplane pilot, asylum 

officer, refugee corps officer, Border 

Patrol agent, contact representative, 

deportation officer, detention 

enforcement officer, detention officer, 

fingerprint specialist, forensic document 

analyst, general attorney (except with 

respect to CBP, only to the extent that 

the attorney is performing any 

immigration function), helicopter pilot, 

immigration agent (investigations), 

immigration enforcement agent, 

immigration information officer, 

immigration inspector, immigration 

officer, immigration services officer, 

investigator, intelligence agent, 

intelligence officer, investigative 

assistant, special agent, other officer or 

employee of the Department of 

Homeland Security or of the United 

States as designated by the Secretary of 

Homeland Security as provided in 8 

CFR 2.1. 

Lawfully admitted for permanent 

residence means the status of having 

been lawfully accorded the privilege of 

residing permanently in the United 

States as an immigrant in accordance 

with the immigration laws, such status 

not having changed. Such status 

terminates upon entry of a final 

administrative order of exclusion, 

deportation, or removal. 

Petition. See Benefit request. 

Practice means the act or acts of any 

person appearing in any case, either in 

person or through the preparation or 

filing of any brief or other document, 

paper, application, or petition on behalf 

of another person or client before or 

with DHS. 

Preparation, constituting practice, 

means the study of the facts of a case 

and the applicable laws, coupled with 

the giving of advice and auxiliary 

activities, including the incidental 

preparation of papers, but does not 

include the lawful functions of a notary 

public or service consisting solely of 

assistance in the completion of blank 

spaces on printed DHS forms, by one 

whose remuneration, if any, is nominal 

and who does not hold himself or 

herself out as qualified in legal matters 

or in immigration and naturalization 

procedure. 

Representation before DHS includes 

practice and preparation as defined in 

this section. 

Representative refers to a person who 

is entitled to represent others as 

provided in 8 CFR 292.1(a)(2) through 

(6) and 8 CFR 292.1(b). 

Respondent means an alien named in 

a Notice to Appear issued in accordance 

with section 239(a) of the Act, or in an 

Order to Show Cause issued in 

accordance with 8 CFR 242.1 (1997) as 

it existed prior to April 1, 1997. 

Secretary, unless otherwise noted, 

means the Secretary of Homeland 

Security. 


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Service means U.S. Citizenship and 

Immigration Services, U.S. Customs and 

Border Protection, and/or U.S. 

Immigration and Customs Enforcement, 

as appropriate in the context in which 

the term appears. 

Service counsel means any 

immigration officer assigned to 

represent the Service in any proceeding 

before an immigration judge or the 

Board of Immigration Appeals. 

Transition program effective date as 

used with respect to extending the 

immigration laws to the Commonwealth 

of the Northern Mariana Islands means 

November 28, 2009. 

USCIS means U.S. Citizenship and 

Immigration Services. 

§ 1.3 Lawfully present aliens for purposes 

of applying for Social Security benefits. 

(a) Definition of the term an ‘‘alien 

who is lawfully present in the United 

States.’’ For the purposes of 8 U.S.C. 

1611(b)(2) only, an ‘‘alien who is 

lawfully present in the United States’’ 

means: 

(1) A qualified alien as defined in 8 

U.S.C. 1641(b); 

(2) An alien who has been inspected 

and admitted to the United States and 

who has not violated the terms of the 

status under which he or she was 

admitted or to which he or she has 

changed after admission; 

(3) An alien who has been paroled 

into the United States pursuant to 

section 212(d)(5) of the Act for less than 

1 year, except: 

(i) Aliens paroled for deferred 

inspection or pending removal 

proceedings under section 240 of the 

Act; and 

(ii) Aliens paroled into the United 

States for prosecution pursuant to 8 CFR 

212.5(b)(3); 

(4) An alien who belongs to one of the 

following classes of aliens permitted to 

remain in the United States because 

DHS has decided for humanitarian or 

other public policy reasons not to 

initiate removal proceedings or enforce 

departure: 

(i) Aliens currently in temporary 

resident status pursuant to section 210 

or 245A of the Act; 

(ii) Aliens currently under Temporary 

Protected Status (TPS) pursuant to 

section 244 of the Act; 

(iii) Cuban-Haitian entrants, as 

defined in section 202(b) of Pub. L. 99– 

603, as amended; 

(iv) Family Unity beneficiaries 

pursuant to section 301 of Pub. L. 101– 

649, as amended; 

(v) Aliens currently under Deferred 

Enforced Departure (DED) pursuant to a 

decision made by the President; 

(vi) Aliens currently in deferred 

action status; 

(vii) Aliens who are the spouse or 

child of a United States citizen whose 

visa petition has been approved and 

who have a pending application for 

adjustment of status; 

(5) Applicants for asylum under 

section 208(a) of the Act and applicants 

for withholding of removal under 

section 241(b)(3) of the Act or under the 

Convention Against Torture who have 

been granted employment authorization, 

and such applicants under the age of 14 

who have had an application pending 

for at least 180 days. 

(b) Non-issuance of a Notice to 

Appear and non-enforcement of 

deportation, exclusion, or removal 

orders. An alien may not be deemed to 

be lawfully present solely on the basis 

of DHS’s decision not to, or failure to: 

(1) Issue a Notice to Appear; or 

(2) Enforce an outstanding order of 

deportation, exclusion or removal. 

PART 100—STATEMENT OF 

ORGANIZATION 

■ 2. The authority citation for part 100 

continues to read as follows: 

Authority: 8 U.S.C. 1103; 8 CFR part 2. 

§ 100.7 [Removed] 

■ 3. Section 100.7 is removed. 

PART 103—IMMIGRATION BENEFITS; 

BIOMETRIC REQUIREMENTS; 

AVAILABILITY OF RECORDS 

■ 4. The authority citation for part 103 

continues to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 

1101, 1103, 1304, 1356; 31 U.S.C. 9701; Pub. 

L. 107–296, 116 Stat. 2135; 6 U.S.C. 1 et seq.; 

E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 

Comp., p. 166; 8 CFR part 2. 

■ 5. The heading for part 103 is revised 

as set forth above. 

■ 6. In part 103, §§ 103.1 through 103.10 

are designated under the following 

subpart A heading: 

Subpart A—Applying for Benefits, 

Surety Bonds, Fees 

§ 103.1 [Removed and Reserved] 

■ 7. Section 103.1 is removed and 

reserved. 

■ 8. Section 103.2 is amended by: 

■ a. Removing the phrases ‘‘petition or 

application’’ and ‘‘application or 

petition’’ and adding in its place the 

phrase ‘‘benefit request’’; and by 

removing the phrase ‘‘petitions and 

applications’’ and adding in its place 

the phrase ‘‘benefit requests’’ whenever 

they appear in the following places: 

■ i. Paragraph (a)(2); 

■ ii. Paragraph (a)(3); 

■ iii. Paragraph (a)(7)(ii); 

■ iv. Paragraph (b)(6); 

■ v. Paragraph (b)(7); 

■ vi. Paragraph (b)(8)(i); 

■ vii. Paragraph (b)(8)(ii); 

■ viii. Paragraph (b)(8)(iii); 

■ ix. Paragraph (b)(9) introductory text; 

■ x. Paragraph (b)(9)(ii); 

■ xi. Paragraph (b)(10)(i); 

■ xii. Paragraph (b)(10)(ii); 

■ xiii. Paragraph (b)(11); 

■ xiv. Paragraph (b)(12); 

■ xv. Paragraph (b)(13)(i); 

■ xvi. Paragraph (b)(13)(ii); 

■ xvii. Paragraph (b)(14); 

■ xviii. Paragraph (b)(15); and 

■ xix. Paragraph (b)(18); and 

■ b. Revising the section heading; 

■ c. Revising paragraph (a)(1); 

■ d. Revising the term ‘‘BCIS’’ to read 

‘‘USCIS’’ in paragraph (a)(2) last 

sentence; 

■ e. Revising the term ‘‘§ 1.1(f)’’ to read 

‘‘§ 1.2’’ in paragraph (a)(3) first sentence; 

■ f. Revising paragraph (a)(6); 

■ g. Revising paragraph (a)(7)(i) and 

adding paragraph (a)(7)(iii); 

■ h. Revising paragraph (b)(1); 

■ i. Revising paragraph (b)(4); 

■ j. Revising the phrase ‘‘by submitting 

a properly completed and signed Form 

G–884 to the adjudicating USCIS office’’ 

to read ‘‘in accordance with instructions 

provided by USCIS’’ in paragraph (b)(5) 

last sentence; 

■ k. Revising the term ‘‘application, 

petition’’ to read ‘‘benefit request’’ in 

paragraph (b)(7) last sentence; 

■ l. Revising the term ‘‘in writing’’ to 

read ‘‘communicated by regular or 

electronic mail’’ in paragraph (b)(8)(iv) 

first sentence; 

■ m. Revising the second sentence in 

paragraph (b)(17)(i); 

■ n. Revising paragraph (b)(19); and 

■ o. Removing paragraph (e). 

The revisions and addition read as 

follows: 

§ 103.2 Submission and adjudication of 

benefit requests. 

(a) Filing. (1) Preparation and 

submission. Every benefit request or 

other document submitted to DHS must 

be executed and filed in accordance 

with the form instructions, 

notwithstanding any provision of 8 CFR 

chapter 1 to the contrary, and such 

instructions are incorporated into the 

regulations requiring its submission. 

Each benefit request or other document 

must be filed with fee(s) as required by 

regulation. Benefit requests which 

require a person to submit biometric 

information must also be filed with the 

biometric service fee in 8 CFR 

103.7(b)(1), for each individual who is 

required to provide biometrics. Filing 

fees and biometric service fees are nonrefundable and, except as otherwise 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53781 

provided in this chapter I, must be paid 

when the benefit request is filed. 

* * * * * 

(6) Where to file. All benefit requests 

must be filed in accordance with the 

form instructions. 

(7) Receipt date. (i) Benefit requests 

submitted. A benefit request which is 

not signed and submitted with the 

correct fee(s) will be rejected. A benefit 

request that is not executed may be 

rejected. Except as provided in 8 CFR 

parts 204, 245, or 245a, a benefit request 

will be considered received by USCIS as 

of the actual date of receipt at the 

location designated for filing such 

benefit request whether electronically or 

in paper format. The receipt date shall 

be recorded upon receipt by USCIS. 

* * * * * 

(iii) Rejected benefit requests. A 

benefit request which is rejected will 

not retain a filing date. There is no 

appeal from such rejection. 

(b) Evidence and processing. (1) 

Demonstrating eligibility. An applicant 

or petitioner must establish that he or 

she is eligible for the requested benefit 

at the time of filing the benefit request 

and must continue to be eligible through 

adjudication. Each benefit request must 

be properly completed and filed with all 

initial evidence required by applicable 

regulations and other USCIS 

instructions. Any evidence submitted in 

connection with a benefit request is 

incorporated into and considered part of 

the request. 

* * * * * 

(4) Supporting documents. Original or 

photocopied documents which are 

required to support any benefit request 

must be submitted in accordance with 

the form instructions. 

* * * * * 

(17) * * * 

(i) * * * These records include alien 

and other files, arrival manifests, arrival 

records, Department index cards, 

Immigrant Identification Cards, 

Certificates of Registry, Declarations of 

Intention issued after July 1, 1929, 

Permanent Resident Cards, or other 

registration receipt forms (provided that 

such forms were issued or endorsed to 

show admission for permanent 

residence), passports, and reentry 

permits. * * * 

* * * * * 

(19) Notification of decision. The 

Service will notify applicants, 

petitioners, and their representatives as 

defined in 8 CFR part 1 in writing of a 

decision made on a benefit request. 

Documents issued based on the 

approval of a request for benefits will be 

sent to the applicant or beneficiary. 

* * * * * 

§ 103.3 [Amended] 

■ 9. Section 103.3 is amended by: 

■ a. Revising the term ‘‘shall file’’ to 

read ‘‘must submit’’ and revising the 

phrase ‘‘with the office where the 

unfavorable decision was made’’ to read 

‘‘as indicated in the applicable form 

instructions’’ in the last sentence in 

paragraph (a)(2)(i); and 

■ b. Revising the term ‘‘§ 103.9(a) of this 

part’’ to read ‘‘8 CFR 103.10(e)’’ in 

paragraph (c) last sentence. 

§§ 103.8 through 103.11 [Removed] 

■ 10. Sections 103.8 through 103.11 are 

removed. 

§ 103.5a [Redesignated as § 103.8] 

■ 11. Section 103.5a is redesignated as 

§ 103.8. 

■ 12. Newly redesignated § 103.8 is 

amended by: 

■ a. Revising the section heading; 

■ b. Revising the paragraph (a) heading; 

■ c. Revising paragraphs (a)(1); 

■ d. Removing the ‘‘.’’ at the end of 

paragraph (a)(2)(iv), and adding a ‘‘; or’’ 

in its place; and by 

■ e. Adding paragraph (a)(2)(v). 

The revisions and addition read as 

follows: 

§ 103.8 Service of decisions and other 

notices. 

* * * * * 

(a) Types of service—(1) Routine 

service. (i) Routine service consists of 

mailing the notice by ordinary mail 

addressed to the affected party and his 

or her attorney or representative of 

record at his or her last known address, 

or 

(ii) If so requested by a party, advising 

the party of such notice by electronic 

mail and posting the decision to the 

party’s USCIS account. 

(2) * * * 

(v) If so requested by a party, advising 

the party by electronic mail and posting 

the decision to the party’s USCIS 

account. 

* * * * * 

§ 103.5b [Redesignated as § 103.9] 

■ 13. Section 103.5b is redesignated as 

§ 103.9. 

■ 14. Section 103.7 is amended by: 

■ a. Revising the term ‘‘BCIS’’ to read 

‘‘USCIS’’ wherever that term appears in 

paragraph (a)(1); 

■ b. Adding new paragraphs 

(b)(1)(i)(CCC), (DDD), and (EEE). 

The revisions and addition read as 

follows: 

§ 103.7 Fees. 

* * * * * 

(b) * * * 

(1) * * * 

(i) * * * 

(CCC) American Competitiveness and 

Workforce Improvement Act (ACWIA) 

fee. $1500 or $750 for filing certain 

H–1B petitions as described in 8 CFR 

214.2(h)(19) and USCIS form 

instructions. 

(DDD) Fraud detection and prevention 

fee. $500 for filing certain H–1B and L 

petitions, and $150 for H–2B petitions 

as described in 8 CFR 214.2(h)(19). 

(EEE) Public Law 111–230 fee. 

Petitioners who are required to submit 

the Fraud Detection and Prevention Fee 

described in paragraph (b)(1)(i)(DDD) of 

this section are also required to submit 

an additional $2000 for an H–1B 

petition or an additional $2250 for an 

L–1 petition if: 

(1) The petitioner employs 50 or more 

persons in the United States; 

(2) More than 50 percent of those 

employees are in H–1B or L–1 status; 

and 

(3) The petition is filed prior to the 

expiration of section 402 of Public Law 

111–230. 

* * * * * 

■ 15. Newly redesignated § 103.9 is 

revised to read as follows: 

§ 103.9 Request for further action on an 

approved benefit request. 

(a) Filing a request. A person may 

request further action on an approved 

benefit request as prescribed by the form 

instructions. Requests for further action 

may be submitted with the original 

benefit request or following the 

approval of such benefit. 

(b) Processing. The request will be 

approved if the requester has 

demonstrated eligibility for the 

requested action. There is no appeal 

from the denial of such request. 

§ 103.12 [Removed] 

■ 16. Section 103.12 is removed. 

§ 103.37 [Redesignated as § 103.10] 

■ 17. Section 103.37 is redesignated as 

§ 103.10. 

■ 18. Newly redesignated § 103.10 is 

amended by: 

■ a. Redesignating paragraphs (g), (h), 

and (i) as paragraphs (b), (c), and (d) 

respectively; 

■ b. Revising the term ‘‘paragraph (f) of 

this section’’ to read ‘‘paragraph (c) of 

this section or 8 CFR 1003.1(h)(2)’’ in 

newly redesignated paragraph (c)(2); 

and by 

■ c. Adding paragraph (e). 

The addition reads as follows: 

§ 103.10 Precedent decisions. 

* * * * * 

(e) Precedent decisions. Bound 

volumes of designated precedent 


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53782 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

decisions, entitled ‘‘Administrative 

Decisions under Immigration and 

Nationality Laws of the United States,’’ 

may be purchased from the 

Superintendent of Documents, U.S. 

Government Printing Office. Prior to 

publication in volume form, current 

precedent decisions are available from 

the Department of Justice, Executive 

Office for Immigration Review’s Virtual 

Law Library at: http://www.justice.gov/ 

eoir/vll/libindex.html. 

■ 19. Section 103.16 is added under an 

added subpart B heading to read as 

follows: 

Subpart B—Biometric Requirements 

§ 103.16 Collection, use and storage of 

biometric information. 

(a) Use of biometric information. Any 

individual may be required to submit 

biometric information if the regulations 

or form instructions require such 

information or if requested in 

accordance with 8 CFR 103.2(b)(9). DHS 

may collect and store for present or 

future use, by electronic or other means, 

the biometric information submitted by 

an individual. DHS may use this 

biometric information to conduct 

background and security checks, 

adjudicate immigration and 

naturalization benefits, and perform 

other functions related to administering 

and enforcing the immigration and 

naturalization laws. 

(b) Individuals residing abroad. An 

individual who is required to provide 

biometric information and who is 

residing outside of the United States 

must report to a DHS-designated 

location to have his or her biometric 

information collected, whether by 

electronic or non-electronic means. 

■ 20. Section 103.17 is added under 

subpart B to read as follows: 

§ 103.17 Biometric service fee. 

(a) Required fees. DHS will charge a 

fee, as prescribed in 8 CFR 103.7(b)(1), 

for collecting biometric information at a 

DHS office, other designated collection 

site overseas, or a registered State or 

local law enforcement agency 

designated by a cooperative agreement 

with DHS to provide biometric 

collection services, to conduct required 

law enforcement checks, and to 

maintain this biometric information for 

reuse to support other benefit requests. 

Requests for benefits must be submitted 

with the biometric service fee for all 

individuals who are required to submit 

biometric information and a biometric 

services fee and who reside in the 

United States at the time of filing for the 

benefit. 

(b) Non-payment of biometric service 

fee. (1) If a benefit request is received by 

DHS without the correct biometric 

service fee, DHS will notify the 

applicant, petitioner, and, when 

appropriate, the applicant or petitioner’s 

representative, of the deficiency, and no 

further action will be taken on the 

benefit request until payment is 

received. Failure to submit the correct 

biometric service fee in response to a 

notice of deficiency within the time 

allotted in the notice will result in 

denial of the benefit request. There is no 

appeal from the denial of a benefit 

request for failure to submit the correct 

biometric service fee. A motion to 

reopen a benefit request denied for 

failure to submit the correct biometric 

service fee will be granted only on proof 

that: 

(i) The correct biometric service fee 

was submitted at the time of filing the 

benefit request; 

(ii) The correct biometric service fee 

was submitted in response to the notice 

of deficiency within the time allotted in 

the notice; or 

(iii) The notice of deficiency was sent 

to an address other than the address on 

the benefit request or the notice of 

representation, or the applicant or 

petitioner notified DHS, in writing, of a 

change of address or change of 

representation subsequent to filing and 

before the notice of deficiency was sent 

and the DHS notice of deficiency was 

not sent to the new address. 

(2) If the reason for the deficiency in 

the biometric service fee is that a check 

or financial instrument used to pay the 

biometric service fee is returned as not 

payable, the remitter must be allowed 

14 calendar days to pay the fee and any 

associated service charges. If the fee and 

charges are not paid within 14 calendar 

days, the benefit request will be denied. 

§§ 103.20–103.36 [Removed and Reserved] 

■ 21. Sections 103.20 through 103.36 

are removed. 

Subpart C—[Reserved] 

■ 22. Add reserved subpart C. 

■ 23. Sections 103.38 through 103.41 

are designated under the following 

subpart D heading: 

Subpart D—Availability of Records 

* * * * * 

■ 24. In § 103.41, paragraph (c) is 

revised to read as follows: 

§ 103.41 Genealogy request fees. 

* * * * * 

(c) Manner of submission. The 

application and fee must be submitted 

in accordance with form instructions. 

■ 25. Section 103.42 is added under 

subpart D to read as follows: 

§ 103.42 Rules relating to the Freedom of 

Information Act (FOIA) and the Privacy Act. 

Immigration-related regulations 

relating to FOIA and the Privacy Act are 

located in 6 CFR part 5. 

PART 204—IMMIGRANT PETITIONS 

■ 26. The authority citation for part 204 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 

1153, 1154, 1182, 1186a, 1255, 1641; 8 CFR 

part 2. 

§ 204.3 [Amended] 

■ 27. Section 204.3 is amended by: 

■ a. Revising the term ‘‘§ 103.2(e) of this 

chapter’’ to read ‘‘8 CFR 103.16’’ and the 

terms ‘‘the Service’’ and ‘‘The Service’’ 

to read ‘‘USCIS’’ wherever the terms 

appear in paragraph (c)(3); and by 

■ b. Revising the term ‘‘BCIS’’ to read 

‘‘USCIS’’, the term ‘‘Form I–600’’ to read 

‘‘petition’’, and the term ‘‘I–600A’’ to 

read ‘‘advance processing request’’ 

wherever the terms appear in paragraph 

(h)(3)(ii). 

§ 204.4 [Amended] 

■ 28. Section 204.4 is amended by: 

■ a. Revising the term ‘‘§ 103.2(e) of this 

chapter to read ‘‘8 CFR 103.16’’ in the 

second sentence in paragraph (d)(1); and 

by 

■ b. Removing the phrase ‘‘, Form I– 

360,’’ in the last sentence in paragraph 

(d)(1). 

§ 204.6 [Amended] 

■ 29. In § 204.6, paragraph (l) is 

removed and reserved. 

§ 204.10 [Removed and Reserved] 

■ 30. Section 204.10 is removed and 

reserved. 

§ 204.302 [Amended] 

■ 31. In § 204.302, paragraph (b), first 

sentence, is amended by revising the 

term ‘‘8 CFR 1.1(i), (j) and (m),’’ to read 

‘‘8 CFR 1.2’’. 

§ 204.310 [Amended] 

■ 32. In § 204.310, paragraph (b), first 

sentence, is amended by revising the 

term ‘‘8 CFR 103.2(e)’’ to read ‘‘8 CFR 

103.16’’. 

PART 207—ADMISSION OF 

REFUGEES 

■ 33. The authority citation for part 207 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 

1157, 1159, 1182; 8 CFR part 2. 

■ 34. Section 207.1 is revised to read as 

follows: 


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§ 207.1 Eligibility. 

(a) Filing. Any alien who believes he 

or she is a refugee as defined in section 

101(a)(42) of the Act, and is included in 

a refugee group identified in section 

207(a) of the Act, may apply for 

admission to the United States by 

submitting an application, including 

biometric information, in accordance 

with the form instructions, as defined in 

8 CFR 1.2. 

(b) Firmly resettled. Any applicant 

(other than an applicant for derivative 

refugee status under 8 CFR 207.7) who 

has become firmly resettled in a foreign 

country is not eligible for refugee status 

under this chapter I. A refugee is 

considered to be ‘‘firmly resettled’’ if he 

or she has been offered resident status, 

citizenship, or some other type of 

permanent resettlement by a country 

other than the United States and has 

traveled to and entered that country as 

a consequence of his or her flight from 

persecution. Any applicant who claims 

not to be firmly resettled in a foreign 

country must establish that the 

conditions of his or her residence in that 

country are so restrictive as to deny 

resettlement. In determining whether or 

not an applicant is firmly resettled in a 

foreign country, the officer reviewing 

the matter shall consider the conditions 

under which other residents of the 

country live: 

(1) Whether permanent or temporary 

housing is available to the refugee in the 

foreign country; 

(2) Nature of employment available to 

the refugee in the foreign country; and 

(3) Other benefits offered or denied to 

the refugee by the foreign country which 

are available to other residents, such as 

right to property ownership, travel 

documentation, education, public 

welfare, and citizenship. 

(c) Immediate relatives and special 

immigrants. Any applicant for refugee 

status who qualifies as an immediate 

relative or as a special immigrant shall 

not be processed as a refugee unless it 

is in the public interest. The alien shall 

be advised to obtain an immediate 

relative or special immigrant visa and 

shall be provided with the proper 

petition forms to send to any 

prospective petitioners. An applicant 

who may be eligible for classification 

under sections 203(a) or 203(b) of the 

Act, and for whom a visa number is now 

available, shall be advised of such 

eligibility but is not required to apply. 

■ 35. Section 207.2 is revised to read as 

follows: 

§ 207.2 Applicant processing. 

(a) Interview. Each applicant 14 years 

old or older shall appear in person 

before an immigration officer for inquiry 

under oath to determine his or her 

eligibility for admission as a refugee. 

(b) Medical examination. Each 

applicant shall submit to a medical 

examination as required by sections 

221(d) and 232(b) of the Act. 

(c) Sponsorship. Each applicant must 

be sponsored by a responsible person or 

organization. Transportation for the 

applicant from his or her present abode 

to the place of resettlement in the 

United States must be guaranteed by the 

sponsor. 

■ 36. Section 207.3 is revised to read as 

follows: 

§ 207.3 Waivers of inadmissibility. 

(a) Authority. Section 207(c)(3) of the 

Act sets forth grounds of inadmissibility 

under section 212(a) of the Act which 

are not applicable and those which may 

be waived in the case of an otherwise 

qualified refugee and the conditions 

under which such waivers may be 

approved. 

(b) Filing requirements. An applicant 

may request a waiver by submitting an 

application for a waiver in accordance 

with the form instructions. The burden 

is on the applicant to show that the 

waiver should be granted based upon 

humanitarian grounds, family unity, or 

the public interest. The applicant shall 

be notified in writing of the decision, 

including the reasons for denial if the 

application is denied. There is no 

appeal from such decision. 

■ 37. Section 207.4 is revised to read as 

follows: 

§ 207.4 Approved application. 

Approval of a refugee application by 

USCIS outside the United States 

authorizes CBP to admit the applicant 

conditionally as a refugee upon arrival 

at the port within four months of the 

date the refugee application was 

approved. There is no appeal from a 

denial of refugee status under this 

chapter. 

■ 38. Section 207.5 is revised to read as 

follows: 

§ 207.5 Waiting lists and priority handling. 

Waiting lists are maintained for each 

designated refugee group of special 

humanitarian concern. Each applicant 

whose application is accepted for filing 

by USCIS shall be registered as of the 

date of filing. The date of filing is the 

priority date for purposes of case 

control. Refugees or groups of refugees 

may be selected from these lists in a 

manner that will best support the 

policies and interests of the United 

States. The Secretary may adopt 

appropriate criteria for selecting the 

refugees and assignment of processing 

priorities for each designated group 

based upon such considerations as 

reuniting families, close association 

with the United States, compelling 

humanitarian concerns, and public 

interest factors. 

■ 39. Section 207.7 is amended by: 

■ a. Revising the term ‘‘U.S. Attorney 

General’’ to read ‘‘Secretary’’ in 

paragraph (b)(5); 

■ b. Revising paragraph (d); 

■ c. Removing the last two sentences in 

paragraph (e); and 

■ d. Revising paragraph (f). 

The revisions read as follows: 

§ 207.7 Derivatives of refugees. 

* * * * * 

(d) Filing. A refugee may request 

accompanying or following-to-join 

benefits for his or her spouse and 

unmarried, minor child(ren) (whether 

the spouse and children are inside or 

outside the United States) by filing a 

petition in accordance with the form 

instructions. The petition may only be 

filed by the principal refugee. Family 

members who derived their refugee 

status are not eligible to request 

derivative benefits on behalf of their 

spouses and child(ren). A petition must 

be filed for each qualifying family 

member within 2 years of the refugee’s 

admission to the United States, unless 

USCIS determines that the filing period 

should be extended for humanitarian 

reasons. There is no time limit imposed 

on a family member’s travel to the 

United States once the petition has been 

approved, provided that the relationship 

of spouse or child continues to exist and 

approval of the petition has not been 

subsequently revoked. There is no fee 

for this petition. 

* * * * * 

(f) Approvals. (1) Spouse or child in 

the United States. When a spouse or 

child of a refugee is in the United States 

and the petition is approved, USCIS will 

notify the refugee of such approval. 

Employment will be authorized incident 

to status. 

(2) Spouse or child outside the United 

States. When a spouse or child of a 

refugee is outside the United States and 

the petition is approved, USCIS will 

notify the refugee of such approval. 

USCIS will send the approved petition 

to the Department of State for 

transmission to the U.S. Embassy or 

Consulate having jurisdiction over the 

area in which the refugee’s spouse or 

child is located. 

(3) Benefits. The approval of the 

petition shall remain valid for the 

duration of the relationship to the 

refugee and, in the case of a child, while 

the child is under 21 years of age and 

unmarried, provided also that the 


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53784 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

principal’s status has not been revoked. 

However, the approved petition will 

cease to confer immigration benefits 

after it has been used by the beneficiary 

for admission to the United States as a 

derivative of a refugee. For a derivative 

inside or arriving in the United States, 

USCIS will issue a document reflecting 

the derivative’s current status as a 

refugee to demonstrate employment 

authorization, or the derivative may 

apply, under 8 CFR 274a.12(a), for 

evidence of employment authorization. 

* * * * * 

■ 40. Section 207.9 is revised to read as 

follows: 

§ 207.9 Termination of refugee status. 

The refugee status of any alien (and of 

the spouse or child of the alien) 

admitted to the United States under 

section 207 of the Act will be 

terminated by USCIS if the alien was 

not a refugee within the meaning of 

section 101(a)(42) of the Act at the time 

of admission. USCIS will notify the 

alien in writing of its intent to terminate 

the alien’s refugee status. The alien will 

have 30 days from the date notice is 

served upon him or her in accordance 

with 8 CFR 103.8, to present written or 

oral evidence to show why the alien’s 

refugee status should not be terminated. 

There is no appeal under this chapter I 

from the termination of refugee status by 

USCIS. Upon termination of refugee 

status, USCIS will process the alien 

under sections 235, 240, and 241 of the 

Act. 

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 41. The authority citation for part 208 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1158, 

1226, 1252, 1282; Pub. L. 110–229, tit. VII, 

122 Stat. 754; 8 CFR part 2. 

§ 208.1 [Amended] 

■ 42. Section 208.1 is amended by: 

■ a. Revising in the last sentence of 

paragraph (a)(1) the term ‘‘8 CFR parts 

3 and 103, where applicable’’ to read ‘‘8 

CFR parts 103 and 1003, as applicable’’; 

and 

■ b. Revising in paragraph (b) the term 

‘‘The Director of International Affairs’’ 

to read ‘‘The Associate Director of 

USCIS Refugee, Asylum, and 

International Operations (RAIO)’’. 

§ 208.2 [Amended] 

■ 43. Section 208.2 is amended in 

paragraph (a) by revising the paragraph 

heading to read: ‘‘Refugee, Asylum, and 

International Operations (RAIO)’’ and 

by revising the terms ‘‘the Office of 

International Affairs’’ and ‘‘The Office 

of International Affairs’’ to read: 

‘‘RAIO’’ wherever they appear. 

§ 208.5 [Amended] 

■ 44. Section 208.5 is amended by: 

■ a. Removing the phrase ‘‘, pursuant to 

§ 208.4(b),’’ in the last sentence of 

paragraph (b)(1)(ii); 

■ b. Revising the phrase ‘‘The DHS 

office’’ to read ‘‘DHS’’ and by revising 

the phrase ‘‘the DHS office’’ to read 

‘‘DHS’’ in paragraph (b)(1)(ii); and 

■ c. Revising the term ‘‘Attorney 

General’’ to read ‘‘Secretary’’ in 

paragraph (b)(2). 

■ 45. Section 208.7 is amended by: 

■ a. Revising the phrase ‘‘submit a Form 

I–765, Application for Employment 

Authorization’’ to read ‘‘request 

employment authorization’’ in 

paragraph (a)(1), first sentence; 

■ b. Revising the term ‘‘Form I–765’’ to 

read ‘‘employment authorization 

request’’ in paragraph (a)(1), last 

sentence; 

■ c. Revising the phrase ‘‘the Service’’ to 

read ‘‘USCIS’’ in paragraph (a)(2), first 

sentence; 

■ d. Revising the phrase ‘‘the 

Commissioner’’ to read ‘‘USCIS’’ in 

paragraph (b), introductory text; and 

■ e. Revising paragraph (c), introductory 

text. 

The revision reads as follows: 

§ 208.7 Employment authorization. 

* * * * * 

(c) Supporting evidence for renewal of 

employment authorization. In order for 

employment authorization to be 

renewed under this section, the alien 

must request employment authorization 

in accordance with the form 

instructions. USCIS may require that an 

alien establish that he or she has 

continued to pursue an asylum 

application before an immigration judge 

or sought administrative or judicial 

review. For purposes of employment 

authorization, pursuit of an asylum 

application is established by presenting 

one of the following, depending on the 

stage of the alien’s immigration 

proceedings: 

* * * * * 

§ 208.9 [Amended] 

■ 46. In § 208.9, paragraph (b) is 

amended by removing the phrase 

‘‘electronically or through any other 

means designated by the Attorney 

General’’. 

§ 208.10 [Amended] 

■ 47. Section 208.10 is amended by 

revising the term ‘‘the Office of 

International Affairs’’ to read ‘‘USCIS’’ 

in the third sentence. 

§ 208.12 [Amended] 

■ 48. In § 208.12, paragraph (a) is 

amended by revising the term ‘‘the 

Office of International Affairs, other 

Service offices,’’ to read ‘‘other USCIS 

offices’’. 

§ 208.14 [Amended] 

■ 49. In § 208.14, paragraph (b) is 

amended by revising the term ‘‘Office of 

International Affairs’’ to read ‘‘RAIO’’. 

■ 50. Section 208.21 is amended by 

revising paragraphs (c) and (d) to read 

as follows: 

§ 208.21 Admission of the asylee’s spouse 

and children. 

(c) Spouse or child in the United 

States. When a spouse or child of an 

alien granted asylum is in the United 

States, but was not included in the 

asylee’s application, the asylee may 

request accompanying or following-tojoin benefits for his or her spouse or 

child, regardless of the status of that 

spouse or child in the United States, in 

accordance with the form instructions. 

The petition must be filed by the asylee 

for each qualifying family member 

within 2 years of the date in which he 

or she was granted asylum status, unless 

it is determined by USCIS that this 

period should be extended for 

humanitarian reasons. Upon approval of 

the petition, USCIS will notify the 

asylee of such approval. Employment 

will be authorized incident to status. To 

demonstrate employment authorization, 

USCIS will issue a document reflecting 

the derivative’s current status as an 

asylee, or the derivative may apply, 

under 8 CFR 274a.12(a), for evidence of 

employment authorization. The 

approval of the derivative benefits 

petition shall remain valid for the 

duration of the relationship to the asylee 

and, in the case of a child, while the 

child is under 21 years of age and 

unmarried, provided also that the 

principal’s status has not been revoked. 

However, the approved petition will 

cease to confer immigration benefits 

after it has been used by the beneficiary 

for admission to the United States as a 

derivative of an asylee. 

(d) Spouse or child outside the United 

States. When a spouse or child of an 

alien granted asylum is outside the 

United States, the asylee may request 

accompanying or following-to-join 

benefits for his or her spouse or 

child(ren) by filing a separate petition 

for each qualifying family member in 

accordance with the form instructions. 

A petition for each qualifying family 

member must be filed within 2 years of 

the date in which the asylee was granted 

asylum, unless USCIS determines that 

the filing period should be extended for 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53785 

humanitarian reasons. When a petition 

is approved, USCIS will notify the 

asylee of such approval. USCIS will also 

send the approved petition to the 

Department of State for transmission to 

the U.S. Embassy or Consulate having 

jurisdiction over the area in which the 

asylee’s spouse or child is located. The 

approval of the petition shall remain 

valid for the duration of the relationship 

to the asylee and, in the case of a child, 

while the child is under 21 years of age 

and unmarried, provided also that the 

principal’s status has not been revoked. 

However, the approved petition will 

cease to confer immigration benefits 

after it has been used by the beneficiary 

for admission to the United States as a 

derivative of an asylee. 

* * * * * 

■ 51. Section 208.24 is amended by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Revising paragraph (b) introductory 

text; and by 

■ c. Revising the term ‘‘§ 3.2 or § 3.23 of 

this chapter’’ to read 8 CFR 1003.2 and 

8 CFR 1003.23’’ and by revising the term 

‘‘the Service’’ to read ‘‘USCIS’’, 

wherever the term appears in paragraph 

(f). 

The revisions read as follows: 

§ 208.24 Termination of asylum or 

withholding of removal or deportation. 

(a) Termination of asylum by USCIS. 

Except as provided in paragraph (e) of 

this section, an asylum officer may 

terminate a grant of asylum made under 

the jurisdiction of USCIS if, following 

an interview, the asylum officer 

determines that: 

* * * * * 

(b) Termination of withholding of 

deportation or removal by USCIS. 

Except as provided in paragraph (e) of 

this section, an asylum officer may 

terminate a grant of withholding of 

deportation or removal made under the 

jurisdiction of USCIS if the asylum 

officer determines, following an 

interview, that: 

* * * * * 

■ 52. Section 208.30 is amended by 

revising paragraph (d)(3) to read as 

follows: 

§ 208.30 Credible fear determinations 

involving stowaways and applicants for 

admission found inadmissible pursuant to 

section 212(a)(6)(C) or 212(a)(7) of the Act. 

* * * * * 

(d) * * * 

(3) The alien may be required to 

register his or her identity. 

* * * * * 

§ 208.31 [Amended] 

■ 53. In § 208.31, paragraph (a) is 

amended by revising the term ‘‘The 

Service’’ to read ‘‘USCIS’’ in the last 

sentence. 

PART 209—ADJUSTMENT OF STATUS 

OF REFUGEES AND ALIENS 

GRANTED ASYLUM 

■ 54. The authority citation for part 209 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 

1159, 1228, 1252, 1282; Pub. L. 110–229, tit. 

VII, 122 Stat. 754; 8 CFR part 2. 

■ 55. Section 209.1 is amended by: 

■ a. Revising paragraph (a)(1); 

■ b. Revising paragraph (b); 

■ c. Removing from paragraph (c) last 

sentence the phrase ‘‘, by submitting 

with the adjustment of status 

application a vaccination supplement, 

completed by a designated civil surgeon 

in the United States’’; 

■ d. Revising paragraphs (d) and (e); and 

■ e. Adding paragraph (f). 

The revisions read as follows: 

§ 209.1 Adjustment of status of refugees. 

* * * * * 

(a) Eligibility. (1) Every alien in the 

United States who is classified as a 

refugee under 8 CFR part 207, whose 

status has not been terminated, is 

required to apply to USCIS one year 

after entry in order for USCIS to 

determine his or her admissibility under 

section 212 of the Act, without regard to 

paragraphs (4), (5), and (7)(A) of section 

212(a) of the Act. 

* * * * * 

(b) Application. Upon admission to 

the United States, every refugee entrant 

will be notified of the requirement to 

submit an application for permanent 

residence one year after entry. An 

application for the benefits of section 

209(a) of the Act must be submitted 

along with the biometrics required by 8 

CFR 103.16 and in accordance with the 

applicable form instructions. 

* * * * * 

(d) Interview. USCIS will determine, 

on a case-by-case basis, whether an 

interview by an immigration officer is 

necessary to determine the applicant’s 

admissibility for permanent resident 

status under this part. 

(e) Decision. USCIS will notify the 

applicant in writing of the decision on 

his or her application. There is no 

appeal of a denial, but USCIS will notify 

an applicant of the right to renew the 

request for permanent residence in 

removal proceedings under section 240 

of the Act. If the applicant is found to 

be admissible for permanent residence 

under section 209(a) of the Act, USCIS 

will approve the application, admit the 

applicant for lawful permanent 

residence as of the date of the alien’s 

arrival in the United States, and issue 

proof of such status. 

(f) Inadmissible Alien. An applicant 

who is inadmissible to the United States 

as described in 8 CFR 209.1(a)(1), may, 

under section 209(c) of the Act, have the 

grounds of inadmissibility waived by 

USCIS except for those grounds under 

sections 212(a)(2)(C) and 212(a)(3)(A), 

(B), (C), or (E) of the Act for 

humanitarian purposes, to ensure family 

unity, or when it is otherwise in the 

public interest. An application for the 

waiver may be requested with the 

application for adjustment, in 

accordance with the form instructions. 

■ 56. Section 209.2 is amended by: 

■ a. Revising the term ‘‘the director’’ to 

read ‘‘USCIS’’ whenever that term 

appears in paragraph (a)(2); 

■ b. Removing the undesignated 

paragraph at the end of paragraph (a)(1); 

■ c. Removing the second, third, and 

last sentences in paragraph (a)(2); and 

■ d. Revising paragraphs (b) through (f). 

The revisions read as follows: 

§ 209.2 Adjustment of status of aliens 

granted asylum. 

* * * * * 

(b) Inadmissible Alien. An applicant 

who is not admissible to the United 

States as described in 8 CFR 

209.2(a)(1)(v), may, under section 209(c) 

of the Act, have the grounds of 

inadmissibility waived by USCIS except 

for those grounds under sections 

212(a)(2)(C) and 212(a)(3)(A), (B), (C), or 

(E) of the Act for humanitarian 

purposes, to ensure family unity, or 

when it is otherwise in the public 

interest. An application for the waiver 

may be requested with the application 

for adjustment, in accordance with the 

form instructions. An applicant for 

adjustment under this part who has had 

the status of an exchange alien 

nonimmigrant under section 

101(a)(15)(J) of the Act, and who is 

subject to the foreign resident 

requirement of section 212(e) of the Act, 

shall be eligible for adjustment without 

regard to the foreign residence 

requirement if otherwise eligible for 

adjustment. 

(c) Application. An application for the 

benefits of section 209(b) of the Act may 

be filed in accordance with the form 

instructions. If an alien has been placed 

in removal, deportation, or exclusion 

proceedings, the application can be filed 

and considered only in proceedings 

under section 240 of the Act. 

(d) Medical examination. For an alien 

seeking adjustment of status under 

section 209(b) of the Act, the alien shall 


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53786 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

submit a medical examination to 

determine whether any grounds of 

inadmissibility described under section 

212(a)(1)(A) of the Act apply. The asylee 

is also required to establish compliance 

with the vaccination requirements 

described under section 212(a)(1)(A)(ii) 

of the Act. 

(e) Interview. USCIS will determine, 

on a case-by-case basis, whether an 

interview by an immigration officer is 

necessary to determine the applicant’s 

admissibility for permanent resident 

status under this part. 

(f) Decision. USCIS will notify the 

applicant in writing of the decision on 

his or her application. There is no 

appeal of a denial, but USCIS will notify 

an applicant of the right to renew the 

request in removal proceedings under 

section 240 of the Act. If the application 

is approved, USCIS will record the 

alien’s admission for lawful permanent 

residence as of the date one year before 

the date of the approval of the 

application, but not earlier than the date 

of the approval for asylum in the case 

of an applicant approved under 

paragraph (a)(2) of this section. 

PART 211—DOCUMENTARY 

REQUIREMENTS: IMMIGRANTS; 

WAIVERS 

■ 57. The authority citation for part 211 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 

1203, 1225, 1257; 8 CFR part 2. 

■ 58. Section 211.1 is amended by: 

■ a. Revising paragraph (b)(3); and 

■ b. Removing paragraph (d). 

The revision reads as follows: 

§ 211.1 Visas. 

(b) * * * 

(3) If an immigrant alien returning to 

an unrelinquished lawful permanent 

residence in the United States after a 

temporary absence abroad believes that 

good cause exists for his or her failure 

to present an unexpired immigrant visa, 

permanent resident card, or reentry 

permit, the alien may file an application 

for a waiver of this requirement with the 

DHS officer with jurisdiction over the 

port of entry where the alien arrives. To 

apply for this waiver, the alien must file 

the designated form with the fee 

prescribed in 8 CFR 103.7(b)(1). If the 

alien’s permanent resident card was lost 

or stolen and the alien has been absent 

for less than one year, rather than the 

waiver application the alien must apply 

for a replacement card as described in 

8 CFR 264.5. In the exercise of 

discretion, the DHS officer who has 

jurisdiction over the port of entry where 

the alien arrives may waive the alien’s 

lack of an immigrant visa, permanent 

resident card, or reentry permit and 

admit the alien as a returning resident 

if DHS is satisfied that the alien has 

established good cause for the alien’s 

failure to present an immigrant visa, 

permanent resident card, or reentry 

permit. Filing a request to replace a lost 

or stolen card will serve as both 

application for replacement and as 

application for waiver of passport and 

visa, without the obligation to file a 

separate waiver application. 

* * * * * 

§ 211.2 [Amended] 

■ 59. In § 211.2, paragraph (b) is 

amended in the second sentence by 

revising the phrase ‘‘file Form I–193, 

Application for Waiver of Passport and/ 

or Visa’’, to read ‘‘apply on the form 

specified by USCIS’’. 

■ 60. Section 211.3 is amended by: 

■ a. Revising the section heading; and 

■ b. Revising the term ‘‘Form I–551’’ to 

read ‘‘a permanent resident card’’ 

whenever the term appears in the first 

sentence. 

The revision reads as follows: 

§ 211.3 Expiration of immigrant visa or 

other travel document. 

* * * * * 

§ 211.5 [Amended] 

■ 61. Section 211.5 is amended by: 

■ a. Revising the phrase ‘‘Form I–551 or 

I–688 shall become’’ to read ‘‘the alien’s 

permanent resident card becomes’’ in 

the last sentence in paragraph (b); and 

■ b. Revising the term ‘‘on Form I–90’’ 

to read ‘‘in accordance with 8 CFR 

264.5’’ in the last sentence of paragraph 

(c). 

PART 212—DOCUMENTARY 

REQUIREMENTS: NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

■ 62. The authority citation for part 212 

continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1102, 

1103, 1182 and note, 1184, 1187, 1223, 1225, 

1226, 1227, 1255; 8 U.S.C. 1185 note (Pub. 

L. 108–458, § 7209, 118 Stat. 3638; Public 

Law 110–229, tit. VII, 122 Stat. 754; 8 CFR 

part 2. 

§ 212.1 [Amended] 

■ 63. In § 212.1, paragraph (n) is 

removed and reserved. 

§ 212.2 [Amended] 

■ 64. Section 212.2 is amended by 

revising the term ‘‘the Form I–212’’ or 

‘‘Form I–212’’ to read ‘‘the application’’ 

wherever it appears in the following 

places: 

■ a. Paragraph (b)(1); 

■ b. Paragraph (b)(2); 

■ c. Paragraph (e), in the last sentence; 

■ d. Paragraph (f); 

■ e. Paragraph (i)(1) introductory text; 

and 

■ f. Paragraph (i)(2). 

■ 65. Section 212.2 is further amended 

by: 

■ a. Revising the term ‘‘sections 

212(a)(17) and 212(d)(3)(A) of the Act 

and § 212.4 of this part’’ to read 

‘‘sections 212(a)(9)(A) and 212(d)(3)(A) 

of the Act and 8 CFR 212.4’’ in the 

second sentence of paragraph (b)(1); 

■ b. Revising the phrase ‘‘Form I–212, 

Application for Permission to Reapply 

for Admission into the United States 

after Deportation or Removal,’’ to read 

‘‘an application on the form designated 

by USCIS with the fee prescribed in 8 

CFR 103.7(b)(1), in accordance with the 

form instructions,’’ in the last sentence 

of paragraph (b)(1); 

■ c. Revising the phrase ‘‘an application 

on Form I–212’’ to read ‘‘the application 

on the form designated by USCIS with 

the fee prescribed in 8 CFR 103.7(b)(1), 

in accordance with the form 

instructions’’ in paragraph (c)(1)(ii); 

■ d. Revising the phrase ‘‘the Form I– 

212 to the Service office with 

jurisdiction over the area within which 

the consular officer is located’’ to read 

‘‘the application to the designated 

USCIS office’’ in paragraph (c)(2); 

■ e. Revising the phrase ‘‘Form I–212’’ 

to read ‘‘the waiver request on the form 

designated by USCIS’’ in the first 

sentence in paragraph (d); 

■ f. Revising the phrase ‘‘Form I–601, 

Application for Waiver of Grounds of 

Excludability, must be filed 

simultaneously with the Form I–212’’ to 

read ‘‘he or she must file both waiver 

requests simultaneously on the forms 

designated by USCIS with the fees 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions’’ 

in the last sentence in paragraph (d). 

■ g. Revising the phrase ‘‘Form I–212, 

Application for Permission to Reapply’’ 

to read ‘‘the application on the form 

designated by USCIS’’ in the second 

sentence in paragraph (e); 

■ h. Revising the phrase ‘‘file Form I– 

212’’ to read ‘‘apply on the form 

designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions’’ 

in the first sentence in paragraph (g)(1) 

introductory text; 

■ i. Removing the last sentence in 

paragraph (g)(1) introductory text; 

■ j. Removing paragraphs (g)(1)(i) and 

(ii); 

■ k. Revising the term ‘‘8 CFR 

245.15(t)(2)’’ to read ‘‘8 CFR 245.15(t)(2) 

or 8 CFR 245.13(k)(2)’’ in the first 

sentence of paragraph (g)(2); 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53787 

■ l. Revising the phrase ‘‘Form I–212 or 

Form I–601 concurrently with the Form 

I–131, Application for Travel 

Document’’ to read ‘‘waiver form 

concurrently with the parole request’’ in 

the first sentence in paragraph (g)(2); 

■ m. Removing the last sentence in 

paragraph (g)(2); and by 

■ n. Revising the phrase ‘‘section 

212(a)(16) or (17) of the Act’’ to read 

‘‘section 212(a)(9)(A) of the Act’’ in the 

second sentence of paragraph (j). 

§ 212.3 [Amended] 

■ 66. In § 212.3, paragraph (a) is 

amended by revising the phrase ‘‘Form 

I–191, Application for Advance 

Permission to Return to Unrelinquished 

Domicile’’ to read ‘‘the form designated 

by USCIS with the fee prescribed in 8 

CFR 103.7(b)(1) and in accordance with 

the form instructions’’. 

§ 212.4 [Amended] 

■ 67. Section 212.4 is amended by: 

■ a. Revising the term ‘‘Form I–192 to 

the district director in charge of the 

applicant’s intended port of entry prior 

to the applicant’s arrival in the United 

States’’, to read ‘‘the form designated by 

USCIS with the fee prescribed in 8 CFR 

103.7(b)(1), and in accordance with the 

form instructions’’ in the first sentence 

in paragraph (b); 

■ b. Removing the term ‘‘of Form I–854, 

Inter-Agency Alien Witness and 

Informant Record,’’ in the first sentence 

of paragraph (j)(1); and 

■ c. Revising the phrase ‘‘the 

Commissioner shall’’ to read ‘‘USCIS 

will’’ in the first sentence in paragraph 

(j)(1); 

■ d. Revising the phrase ‘‘The 

Commissioner’’ or ‘‘the Commissioner’’ 

to read ‘‘USCIS’’ wherever the term 

appears in the second and third 

sentences in paragraph (j)(1); and 

■ e. Revising the phrase ‘‘the 

Commissioner’’ to read ‘‘USCIS’’ in the 

second sentence in paragraph (j)(2). 

§ 212.5 [Amended] 

■ 68. In § 212.5, paragraph (f) is 

amended by revising the term ‘‘Form I– 

512’’ to read ‘‘an appropriate document 

authorizing travel’’. 

■ 69. Section 212.7 is amended by: 

■ a. Revising the section heading; 

■ b. Revising the paragraph (a)(1); 

■ c. Revising paragraph (a)(3); 

■ d. Revising in paragraph (a)(4), fourth 

sentence, the phrase ‘‘deportable in a 

deportation proceeding’’ to read 

‘‘deportable in deportation proceedings 

or removable in removal proceedings’’; 

■ e. Revising the paragraph (b)(1); 

■ f. Removing paragraph (b)(3); 

■ g. Revising in the first sentence in 

paragraph (b)(4)(i) the phrase ‘‘section 

212(a) (1) or (3) (because of mental 

retardation or because of a past history 

of mental illness)’’ to read ‘‘section 

212(a)(1)(A)(iii) of the Act’’ and the 

phrase ‘‘an executed Form I–601 to the 

consular or Service office’’ to read ‘‘a 

waiver request’’; 

■ h. Removing the last sentence in 

paragraph (b)(4)(i); 

■ i. Redesignating paragraphs (b)(4) and 

(5) as paragraphs (b)(2) and (3), 

respectively; 

■ j. Revising the term ‘‘Form I–612’’ to 

read ‘‘the form designated by USCIS’’ in 

paragraph (c)(5); 

■ k. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in the last sentence in 

paragraph (c)(9)(vi) introductory text; 

■ l. Removing the phrase ‘‘with the 

Service’’ in the first sentence in 

paragraph (c)(9)(vi)(B); and 

■ m. Revising the term ‘‘Form I–797 

(and/or I–797A and I–797B)’’ to read 

‘‘the USCIS approval notice’’ in 

paragraph (c)(9)(vi)(B)(1). 

The revisions read as follows: 

§ 212.7 Waiver of certain grounds of 

inadmissibility. 

(a) Filing and adjudication of waivers 

under sections 212(g), (h), or (i) of the 

Act. (1) Application procedures. Any 

alien who is inadmissible under 

sections 212(g), (h), or (i) of the Act who 

is eligible for a waiver of such 

inadmissibility may file on the form 

designated by USCIS, with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

When filed at the consular section of an 

embassy or consulate, the Department of 

State will forward the application to 

USCIS for a decision after the consular 

official concludes that the alien is 

otherwise admissible. 

* * * * * 

(3) Decision. USCIS will provide a 

written decision and, if denied, advise 

the applicant of appeal procedures in 

accordance with 8 CFR 103.3. 

* * * * * 

(b) Section 212(g) waivers for certain 

medical conditions. (1) Application. 

Any alien who is inadmissible under 

section 212(a)(1)(A)(i), (ii), or (iii) of the 

Act and who is eligible for a waiver 

under section 212(g) of the Act may file 

an application as described in paragraph 

(a)(1) of this section. The family member 

specified in section 212(g) of the Act 

may file the waiver application for the 

applicant if the applicant is 

incompetent to file the waiver 

personally. 

* * * * * 

§ 212.8 [Removed and Reserved] 

■ 70. Section 212.8 is removed and 

reserved. 

§ 212.9 [Removed and Reserved] 

■ 71. Section 212.9 is removed and 

reserved. 

■ 72. Section 212.10 is revised to read 

as follows: 

§ 212.10 Section 212(k) waiver. 

Any applicant for admission who is in 

possession of an immigrant visa, and 

who is inadmissible under section 

212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, 

may apply at the port of entry for a 

waiver under section 212(k) of the Act. 

If the application for waiver is denied, 

the application may be renewed in 

removal proceedings before an 

immigration judge as provided in 8 CFR 

part 1240. 

§ 212.11 [Removed and Reserved] 

■ 73. Section 212.11 is removed and 

reserved. 

§ 212.14 [Amended] 

■ 74. Section 212.14 is amended by: 

■ a. Revising the phrase ‘‘a completed 

Form I–854, Inter-Agency Alien Witness 

and Informant Record,’’ to read ‘‘an 

application for S nonimmigrant status 

on the form designated for such 

purposes’’ in paragraph (a)(1)(i); 

■ b. Revising the phrase ‘‘a completed 

Form I–854’’ to read ‘‘the completed 

application’’ in the first sentence of 

paragraph (a)(2)(iii); 

■ c. Revising the phrase ‘‘Form I–854 

requesting’’ to read ‘‘completed 

application for’’ in the second sentence 

of paragraph (a)(2)(iii); and 

■ d. Revising the phrase ‘‘a Form I–854’’ 

to read ‘‘the application’’ in paragraph 

(a)(2)(iii), last sentence. 

§ 212.15 [Amended] 

■ 75. Section 212.15 is amended by: 

■ a. Revising the phrase ‘‘shall submit 

Form I–905, Application for 

Authorization to Issue Certification for 

Health Care Workers’’ to read ‘‘must 

apply on the form designated by USCIS 

in accordance with the form 

instructions’’ in the first sentence of 

paragraph (j)(1) introductory text; 

■ b. Revising the phrase ‘‘As required 

on Form I–905, the’’ to read ‘‘The’’ in 

the last sentence of paragraph (j)(1), 

introductory text; 

■ c. Revising the term ‘‘shall submit 

Form I–905’’ to read ‘‘must apply’’ in 

the first sentence of paragraph (j)(2)(i); 

■ d. Revising the phrase ‘‘shall submit 

Form I–905, Application for 

Authorization to Issue Certification for 

Health Care Workers with the 

appropriate fee contained in 8 CFR 

103.7(b)(1)’’ to read ‘‘must apply on the 

form designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 


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53788 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

accordance with the form instructions’’ 

in the first sentence in paragraph 

(j)(2)(ii); 

■ e. Revising the phrase ‘‘After receipt 

of Form I–905, USCIS shall, in all 

cases,’’ to read ‘‘USCIS will’’ in 

paragraph (j)(3)(i); 

■ f. Removing the phrase ‘‘to the 

Associate Commissioner for 

Examinations’’ from paragraph (j)(3)(iii); 

■ g. Revising the phrase ‘‘a Form I–905 

requesting,’’ to read ‘‘a request for’’ in 

the second sentence of paragraph (l); 

and 

■ h. Revising the term ‘‘Form I–905’’ to 

read ‘‘the request’’ in the second 

sentence of paragraph (m)(2) 

introductory text. 

§ 212.16 [Amended] 

■ 76. Section 212.16 is amended by 

■ a. Revising the term ‘‘Form I–192’’ to 

read ‘‘the request on the form 

designated by USCIS’’, by revising the 

term ‘‘the Service’’ to read ‘‘USCIS’’, 

and by revising the phrase ‘‘completed 

Form I–914 application package’’ to 

read ‘‘application’’ in paragraph (a); 

■ b. Revising the terms ‘‘the 

Commissioner’’, ‘‘The Service’’, and 

‘‘the Service’’ to read ‘‘USCIS’’ wherever 

those terms appear in paragraph (b); and 

by 

■ c. Revising the term ‘‘The 

Commissioner’’ to read ‘‘USCIS’’ in 

paragraph (d). 

■ 77. Section 212.17 is amended by: 

■ a. Revising paragraph (a); and by 

■ b. Revising the term ‘‘Form I–192’’ to 

read ‘‘the waiver’’ wherever the term 

appears in paragraph (b). 

The revision reads as follows: 

§ 212.17 Applications for the exercise of 

discretion relating to U nonimmigrant 

status. 

(a) Filing the waiver application. An 

alien applying for a waiver of 

inadmissibility under section 

212(d)(3)(B) or (d)(14) of the Act 

(waivers of inadmissibility), 8 U.S.C. 

1182(d)(3)(B) or (d)(14), in connection 

with a petition for U nonimmigrant 

status being filed pursuant to 8 CFR 

214.14, must submit the waiver request 

and the petition for U nonimmigrant 

status on the forms designated by USCIS 

in accordance with the form 

instructions. An alien in U 

nonimmigrant status who is seeking a 

waiver of section 212(a)(9)(B) of the Act, 

8 U.S.C. 1182(a)(9)(B) (unlawful 

presence ground of inadmissibility 

triggered by departure from the United 

States), must file the waiver request 

prior to his or her application for 

reentry to the United States in 

accordance with the form instructions. 

* * * * * 

PART 213A—AFFIDAVITS OF 

SUPPORT ON BEHALF OF ALIENS 

■ 78. The authority citation for part 

213a continues to read as follows: 

Authority: 8 U.S.C. 1183a; 8 CFR part 2. 

§ 213a.1 [Amended] 

■ 79. Section 213a.1 is amended by: 

■ a. Revising in the definition of 

household income the phrase ‘‘signed a 

U.S. Citizenship and Immigration 

Services (USCIS) Form I–864A, 

Affidavit of Support Contract Between 

Sponsor and Household Member’’ to 

read ‘‘signed the form designated by 

USCIS for this purpose’’; 

■ b. Revising in the definition of 

household size, in the second sentence 

in paragraph (1), the term ‘‘Form I–864’’ 

to read ‘‘affidavit of support’’, wherever 

the term appears; 

■ c. Revising in the definition of joint 

sponsor the term ‘‘a Form I–864’’ to read 

‘‘an affidavit of support’’; 

■ d. Revising in the definition of 

sponsor the term ‘‘a Form I–864’’ to read 

‘‘an affidavit of support’’; and 

■ e. Revising in the definition of 

substitute sponsor the term ‘‘a Form I– 

864’’ to read ‘‘the affidavit of support’’ 

and the term ‘‘the Form I–130 or I– 

129F’’ to read ‘‘a relative or fiance ́(e) 

petition’’. 

■ 80–82. Section 213a.2 is amended by: 

■ a. Revising paragraphs (a)(1)(i) 

through (a)(1)(v)(A); 

■ b. Revising the phrase ‘‘Form I–864 or 

Form I–864A’’ to read ‘‘affidavit of 

support or required affidavit of support 

attachment form’’ in the first sentence of 

paragraph (a)(1)(v)(B); 

■ c. Revising the phrase ‘‘Form I–864 

and any Form I–864A’’ to read ‘‘affidavit 

of support and any required affidavit of 

support attachment’’ in the last sentence 

of paragraph (a)(1)(v)(B); 

■ d. Revising the phrase ‘‘the Form I– 

130 or Form I–600 immigrant visa 

petition (or the Form I–129F petition, 

for a K nonimmigrant seeking 

adjustment)’’ to read ‘‘relative, orphan 

or fiance ́(e) petition’’ in the first 

sentence of paragraph (b)(1); 

■ e. Revising the phrase ‘‘in Form I– 

864P Poverty Guidelines’’ to read ‘‘the 

Poverty Guidelines’’ in paragraph 

(c)(2)(i)(A); 

■ f. Revising the term ‘‘Form I–864’’ to 

read ‘‘affidavit of support’’ in paragraph 

(c)(2)(iii)(A)(2); 

■ g. Revising paragraph (c)(2)(iii)(C); 

■ h. Revising the phrase ‘‘filed USCIS 

Form I–407, Abandonment of Lawful 

Permanent Resident Status’’ to read 

‘‘abandoned permanent resident status, 

executing the form designated by USCIS 

for recording such action’’ in paragraph 

(e)(2)(i)(C); 

■ i. Revising the phrase ‘‘Form I–864 or 

Form I–864A’’ to read ’’ affidavit of 

support and any required attachments’’ 

wherever the term appears in paragraph 

(f); 

■ j. Revising the phrase ‘‘the signed 

Form(s) I–864 (and any Form(s) I– 

864A)’’ to read ‘‘any relevant affidavit(s) 

and attachments’’ in paragraph (g)(1); 

and 

■ k. Revising paragraphs (g)(2)(i) and 

(ii). 

■ l. Section 213a.2 is further amended 

by revising the terms ‘‘Form I–864’’, 

‘‘the Form I–864’’, and ‘‘a Form I–864’’ 

to read ‘‘an affidavit of support’’ 

wherever those terms or phrases appear 

in the following places: 

■ i. Paragraph (b), introductory text; 

■ ii. Paragraph (b)(1); 

■ iii. Paragraph (b)(2); 

■ iv. Paragraph (c)(1)(ii)(B); 

■ v. Paragraph (c)(2)(i)(A); 

■ vi. Paragraph (c)(2)(i)(B); 

■ vii. Paragraph (c)(2)(i)(C)(2); 

■ viii. Paragraph (c)(2)(i)(C)(4); 

■ ix. Paragraph (c)(2)(i)(D); 

■ x. Paragraph (c)(2)(ii)(C); 

■ xi. Paragraph (c)(2)(iii)(D); 

■ xii. Paragraph (c)(2)(v); 

■ xiii. Paragraph (c)(2)(vi); 

■ xiv. Paragraph (d); 

■ xv. Paragraph (e)(1); 

■ xvi. Paragraph (e)(2)(i) introductory 

text; 

■ xvii. Paragraph (e)(2)(i)(D); 

■ xviii. Paragraph (e)(2)(ii); 

■ xix. Paragraph (e)(3); and 

■ xx. Paragraph (f) heading. 

■ m. Section 213a.2 is further amended 

by revising the terms ‘‘Form I–864A’’, 

‘‘the Form I–864A’’, or ‘‘a Form I–864A’’ 

to read ‘‘an affidavit of support 

attachment’’ wherever those terms or 

phrases appear in the following places: 

■ i. Paragraph (c)(2)(i)(C)(1); 

■ ii. Paragraph (c)(2)(i)(C)(2); 

■ iii. Paragraph (c)(2)(i)(C)(3); 

■ iv. Paragraph (c)(2)(i)(C)(4); 

■ v. Paragraph (c)(2)(i)(C)(5); 

■ vi. Paragraph (c)(2)(i)(D); 

■ vii. Paragraph (c)(2)(iii)(B) 

introductory text; 

■ viii. Paragraph (c)(2)(v); 

■ ix. Paragraph (c)(2)(vi); 

■ x. Paragraph (e)(1); 

■ xi. Paragraph (e)(2)(i) introductory 

text; 

■ xii. Paragraph (e)(2)(i)(D); 

■ xiii. Paragraph (e)(2)(ii); 

■ xiv. Paragraph (e)(3); and 

■ xv. Paragraph (f) heading. 

The revisions read as follows: 

§ 213a.2 Use of affidavit of support. 

(a) Applicability of section 213a 

affidavit of support. (1)(i)(A) In any case 

specified in paragraph (a)(2) of this 

section, an intending immigrant is 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53789 

inadmissible as an alien likely to 

become a public charge, unless the 

qualified sponsor specified in paragraph 

(b) of this section or a substitute sponsor 

and, if necessary, a joint sponsor, has 

executed on behalf of the intending 

immigrant an affidavit of support on the 

applicable form designated by USCIS in 

accordance with the requirements of 

section 213A of the Act and the form 

instructions. Each reference in this 

section to the affidavit of support or the 

form is deemed to be a reference to all 

such forms designated by USCIS for use 

by a sponsor for compliance with 

section 213A of the Act. 

(B) If the intending immigrant claims 

that, under paragraph (a)(2)(ii)(A), (C), 

or (E) of this section, the intending 

immigrant is exempt from the 

requirement to file an affidavit of 

support, the intending immigrant must 

include with his or her application for 

an immigrant visa or adjustment of 

status an exemption request on the form 

designated by USCIS for this purpose. 

(ii) An affidavit of support is executed 

when a sponsor signs and submits the 

appropriate forms in accordance with 

the form instructions to USCIS or the 

Department of State, as appropriate. 

(iii) A separate affidavit of support is 

required for each principal beneficiary. 

(iv) Each immigrant who will 

accompany the principal intending 

immigrant must be included on the 

affidavit. See paragraph (f) of this 

section for further information 

concerning immigrants who intend to 

accompany or follow the principal 

intending immigrant to the United 

States. 

(v)(A) Except as provided for under 

paragraph (a)(1)(v)(B) of this section, the 

Department of State consular officer, 

immigration officer, or immigration 

judge will determine the sufficiency of 

the affidavit of support based on the 

sponsor’s, substitute sponsor’s, or joint 

sponsor’s reasonably expected 

household income in the year in which 

the intending immigrant filed the 

application for an immigrant visa or for 

adjustment of status, and based on the 

evidence submitted with the affidavit of 

support and the Poverty Guidelines in 

effect when the intending immigrant 

filed the application for an immigrant 

visa or adjustment of status. 

* * * * * 

(c) * * * 

(2) * * * 

(iii) * * * 

(C) Joint sponsor. A joint sponsor 

must execute a separate affidavit of 

support on behalf of the intending 

immigrant(s) and be willing to accept 

joint and several liabilities with the 

sponsor or substitute sponsor. A joint 

sponsor must meet all the eligibility 

requirements under paragraph (c)(1) of 

this section, except that the joint 

sponsor is not required to file a visa 

petition on behalf of the intending 

immigrant. The joint sponsor must 

demonstrate his or her ability to support 

the intending immigrant in the manner 

specified in paragraph (c)(2) of this 

section. A joint sponsor’s household 

income must meet or exceed the income 

requirement in paragraph (c)(2)(iii) of 

this section unless the joint sponsor can 

demonstrate significant assets as 

provided in paragraph (c)(2)(iv)(A) of 

this section. The joint sponsor’s 

household income must equal at least 

125 percent of the Poverty Guidelines 

for the joint sponsor’s household size, 

unless the joint sponsor is on active 

duty in the Armed Forces and the 

intending immigrant is the joint 

sponsor’s spouse or child, in which case 

the joint sponsor’s household income is 

sufficient if it equals at least 100 percent 

of the Poverty Guidelines for the joint 

sponsor’s household size. An intending 

immigrant may not have more than one 

joint sponsor, but, if the joint sponsor’s 

household income is not sufficient to 

meet the income requirement with 

respect to the principal intending 

immigrant, any spouse and all the 

children who, under section 203(d) of 

the Act, seek to accompany the 

principal intending immigrant, then the 

joint sponsor may specify on the 

affidavit that it is submitted only on 

behalf of the principal intending 

immigrant and those accompanying 

family members specifically listed on 

the affidavit. The remaining 

accompanying family members will 

then be inadmissible under section 

212(a)(4) of the Act unless a second 

joint sponsor submits an affidavit(s) on 

behalf of all the remaining family 

members who seek to accompany the 

principal intending immigrant and who 

are not included in the first joint 

sponsor’s affidavit. There may not be 

more than two joint sponsors for the 

family group consisting of the principal 

intending immigrant and the 

accompanying spouse and children. 

* * * * * 

(g) * * * 

(2)(i) To avoid inadmissibility under 

section 212(a)(4) of the Act, an alien 

who applies for an immigrant visa, 

admission, or adjustment of status as an 

alien who is following-to-join a 

principal intending immigrant must 

submit a new affidavit(s) of support, 

together with all documents or other 

evidence necessary to prove that the 

new affidavits comply with the 

requirements of section 213A of the Act 

and 8 CFR part 213a. 

(ii) When paragraph (g)(2)(i) of this 

section requires the filing of a new 

affidavit for an alien who seeks to 

follow-to-join a principal sponsored 

immigrant, the same sponsor who filed 

the visa petition and affidavit of support 

for the principal sponsored immigrant 

must file the new affidavit on behalf of 

the alien seeking to follow-to-join. If 

that person has died, then the alien 

seeking to follow-to-join is inadmissible 

unless a substitute sponsor, as defined 

by 8 CFR 213a.1, signs a new affidavit 

that meets the requirements of this 

section. Persons other than the person 

or persons who signed the original joint 

affidavits on behalf of the principal 

sponsored immigrant may sign a new 

joint affidavit on behalf of an alien who 

seeks to follow-to-join a principal 

sponsored immigrant. 

* * * * * 

■ 83. Section 213a.3 is revised to read 

as follows: 

§ 213a.3 Change of address. 

(a) Submission of address change. (1) 

Filing requirements. If the address of a 

sponsor (including a substitute sponsor 

or joint sponsor) changes while the 

sponsor’s support obligation is in effect, 

the sponsor shall file a change of 

address notice within 30 days, in a 

manner as prescribed by USCIS on its 

address change form instructions. 

(2) Proof of mailing. USCIS will 

accept a photocopy of the change of 

address form together with proof of the 

form’s delivery to USCIS as evidence 

that the sponsor has complied with this 

requirement. 

(3) Electronic notices. USCIS will 

provide the sponsor with a receipt 

notice for an address change. 

(4) Alien sponsors. If the sponsor is an 

alien, the sponsor must still comply 

with the requirements of 8 CFR 265.1 to 

notify USCIS of his or her change of 

address. 

(b) Civil penalty. If the sponsor fails 

to give notice in accordance with 

paragraph (a) of this section, DHS may 

impose on the sponsor a civil penalty in 

an amount within the penalty range 

established in section 213A(d)(2)(A) of 

the Act. Except, if the sponsor, knowing 

that the sponsored immigrant has 

received any means-tested public 

benefit, fails to give notice in 

accordance with paragraph (a) of this 

section, DHS may impose on the 

sponsor a civil penalty in an amount 

within the penalty range established in 

section 213A(d)(2)(B) of the Act. The 

procedure for imposing a civil penalty 

is established at 8 CFR part 280. 


Emcdonald on DSK2BSOYB1PROD with RULES3
53790 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

§ 213a.4 [Amended] 

■ 84. Section 213a.4 is amended by: 

■ a. Revising the term ‘‘8 CFR 

103.5a(a)(2)’’ to read ‘‘8 CFR 

103.8(a)(2)’’ in paragraph (a)(1)(i); and 

■ b. Revising the phrases ‘‘a Form I–864 

or Form I–864A’’ and ‘‘the Form I–864 

or Form I–864A’’ to read ‘‘an affidavit of 

support’’ in the first sentence in 

paragraph (a)(3). 

■ 85. Section 213a.5 is revised to read 

as follows: 

§ 213a.5 Relationship of this part to other 

affidavits of support. 

Nothing in this part precludes the 

continued use of other affidavits of 

support provided by USCIS in a case 

other than a case described in 

§ 213a.2(a)(2). The obligations of section 

213A of the Act do not bind a person 

who executes such other USCIS 

affidavits of support. Persons 

sponsoring an Amerasian alien 

described in section 204(f)(2) of the Act 

remain subject to the provisions of 

section 204(f)(4)(B) of the Act and 8 CFR 

204.4(i), as appropriate. 

PART 223—REENTRY PERMITS, 

REFUGEE TRAVEL DOCUMENTS, AND 

ADVANCE PAROLE DOCUMENTS 

■ 86. The authority citation for part 223 

continues to read as follows: 

Authority: 8 U.S.C. 1103, 1181, 1182, 

1186a, 1203, 1225, 1226, 1227, 1251; Protocol 

Relating to the Status of Refugees, Nov. 1, 

1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR part 

2. 

■ 87. Section 223.2 is revised to read as 

follows: 

§ 223.2 Application and processing. 

(a) Application. An applicant must 

submit an application for a reentry 

permit, refugee travel document, or 

advance parole on the form designated 

by USCIS with the fee prescribed in 8 

CFR 103.7(b)(1) and in accordance with 

the form instructions. 

(b) Filing eligibility. (1) Reentry 

permit. An applicant for a reentry 

permit must file such application while 

in the United States and in status as a 

lawful permanent resident or 

conditional permanent resident. 

(2) Refugee travel document. (i) 

Except as provided in paragraph 

(b)(2)(ii) of this section, an applicant for 

a refugee travel document must submit 

the application while in the United 

States and in valid refugee status under 

section 207 of the Act, valid asylum 

status under section 208 of the Act or is 

a permanent resident who received such 

status as a direct result of his or her 

asylum or refugee status. 

(ii) Discretionary authority to accept a 

refugee travel document application 

from an alien not within the United 

States. As a matter of discretion, the 

Service office with jurisdiction over a 

port-of-entry or pre-flight inspection 

location where the alien is seeking 

admission, or the overseas Service office 

where the alien is physically present, 

may accept and adjudicate an 

application for a refugee travel 

document from an alien who previously 

had been admitted to the United States 

as a refugee, or who previously had 

been granted asylum status in the 

United States, and who departed from 

the United States without having 

applied for such refugee travel 

document, provided the officer: 

(A) Is satisfied that the alien did not 

intend to abandon his or her refugee or 

asylum status at the time of departure 

from the United States; 

(B) The alien did not engage in any 

activities while outside the United 

States that would be inconsistent with 

continued refugee or asylum status; and 

(C) The alien has been outside the 

United States for less than 1 year since 

his or her last departure. 

(c) Ineligibility. (1) Prior document 

still valid. An application for a reentry 

permit or refugee travel document will 

be denied if the applicant was 

previously issued a reentry permit or 

refugee travel document which is still 

valid, unless it was returned to USCIS 

or it is demonstrated that it was lost. 

(2) Extended absences. A reentry 

permit issued to a person who, since 

becoming a permanent resident or 

during the last five years, whichever is 

less, has been outside the United States 

for more than four years in the 

aggregate, shall be limited to a validity 

of one year, except that a permit with 

a validity of two years may be issued to: 

(i) A permanent resident described in 

8 CFR 211.1(a)(6) or (a)(7); 

(ii) A permanent resident employed 

by a public international organization of 

which the United States is a member by 

treaty or statute, and his or her 

permanent resident spouse and 

children; or 

(iii) A permanent resident who is a 

professional athlete who regularly 

competes in the United States and 

worldwide. 

(3) Permanent resident entitled to 

nonimmigrant diplomatic or treaty 

status. A permanent resident entitled to 

nonimmigrant status under section 

101(a)(15)(A), (E), or (G) of the Act 

because of occupational status may only 

be issued a reentry permit if the 

applicant executes and submits with the 

application, or has previously executed 

and submitted, a written waiver as 

required by 8 CFR part 247. 

(d) Effect of travel before a decision is 

made. Departure from the United States 

before a decision is made on an 

application for a reentry permit or 

refugee travel document will not affect 

the application. 

(e) Processing. USCIS may approve or 

deny a request for a reentry permit or 

refugee travel document as an exercise 

of discretion. If it approves the 

application, USCIS will issue an 

appropriate document. 

(f) Effect on proceedings. Issuance of 

a reentry permit or refugee travel 

document to a person in exclusion, 

deportation, or removal proceedings 

shall not affect those proceedings. 

(g) Appeal. Denial of an application 

for a reentry permit or refugee travel 

document may be appealed in 

accordance with 8 CFR 103.3. 

PART 235—INSPECTION OF PERSONS 

APPLYING FOR ADMISSION 

■ 88. The authority citation for part 235 

is revised to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 

published January 2, 2004), 1201, 1224, 1225, 

1226, 1228, 1365a note, 1379, 1731–32; Pub. 

L. 110–229, tit. VII, 122 Stat. 754; 8 U.S.C. 

1185 note (Pub. L. 108–458, § 7209, 118 Stat. 

3638). 

§ 235.3 [Amended] 

■ 89. In § 235.3, paragraph (b)(1)(i) is 

amended by revising the term ‘‘§ 1.1(q) 

of this chapter’’ to read ‘‘8 CFR 1.2’’. 

§ 235.8 [Amended] 

■ 90. In § 235.8, paragraph (e) is 

amended by revising the term ‘‘§ 1.1(q) 

of this chapter’’ to read ‘‘8 CFR 1.2’’. 

PART 236—APPREHENSION AND 

DETENTION OF INADMISSIBLE AND 

DEPORTABLE ALIENS; REMOVAL OF 

ALIENS ORDERED REMOVED 

■ 91. The authority citation for part 236 

continues to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 

1103, 1182, 1224, 1225, 1226, 1227, 1231, 

1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 

2. 

§ 236.2 [Amended] 

■ 92. In § 236.2, paragraph (a) is 

amended by revising the term 

‘‘§ 103.5a(c) of this chapter’’ to read ‘‘8 

CFR 103.8(c)’’. 

§ 236.16 [Amended] 

■ 93. Section 236.16 is amended by 

revising the phrase ‘‘using Form I–131, 

Application for Travel Document’’ to 

read ‘‘in accordance with 8 CFR 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53791 

223.2(a)’’in the first sentence and 

revising the phrase ‘‘the district 

director’’ to read ‘‘USCIS’’ in the second 

sentence. 

§ 236.18 [Amended] 

■ 94. In § 236.18, paragraph (b) is 

amended by revising the term ‘‘§ 103.5a 

of this chapter’’ to read ‘‘8 CFR 

103.8(a)(2)’’ wherever that term appears. 

PART 238—EXPEDITED REMOVAL OF 

AGGRAVATED FELONS 

■ 95. The authority citation for part 238 

continues to read as follows: 

Authority: 8 U.S.C. 1228; 8 CFR part 2. 

■ 96. In § 238.1, paragraph (b)(2)(i) is 

amended by revising the term 

‘‘§§ 103.5a(a)(2) and 103.5a(c)(2) of this 

chapter’’ to read ‘‘8 CFR 103.8’’. 

PART 240—VOLUNTARY DEPARTURE, 

SUSPENSION OF DEPORTATION AND 

SPECIAL RULE CANCELLATION OF 

REMOVAL 

■ 97. The heading for part 240 is revised 

as set forth above. 

■ 98. The authority citation for part 240 

continues to read as follows: 

Authority: 8 U.S.C. 1103, 1182, 1186a, 

1224, 1225, 1226, 1227, 1251, 1252 note, 

1252a, 1252b, 1362; sections 202 and 203, 

Pub. L. 105–100, 111 Stat. 2160, 2193; 

section 902, Pub. L. 105–277, 112 Stat. 2681; 

8 CFR part 2. 

■ 99. Section 240.67 is amended by 

revising paragraph (a) introductory text 

to read as follows: 

§ 240.67 Procedure for interview before an 

asylum officer. 

(a) Fingerprinting requirements. 

USCIS will notify each applicant 14 

years of age or older to appear for an 

interview only after the applicant has 

complied with fingerprinting 

requirements pursuant to 8 CFR 103.16, 

and USCIS has received a definitive 

response from the FBI that a full 

criminal background check has been 

completed. A definitive response that a 

full criminal background check on an 

applicant has been completed includes: 

* * * * * 

PART 241—APPREHENSION AND 

DETENTION OF ALIENS ORDERED 

REMOVED 

■ 100. The authority citation for part 

241 continues to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 

1103, 1182, 1223, 1224, 1225, 1226, 1227, 

1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 

U.S.C. 4002, 4013(c)(4); Pub. L. 107–296, 116 

Stat. 2135 (6 U.S.C. 101, et seq.); 8 CFR 

part 2. 

§ 241.4 [Amended] 

■ 101. In § 241.4, paragraph (d)(2), first 

sentence is amended by revising the 

term ‘‘8 CFR 103.5a’’ to read ‘‘8 CFR 

103.8’’. 

■ 102. Section 241.5 is amended by 

revising paragraph (a)(5) to read as 

follows: 

§ 241.5 Conditions of release after removal 

period. 

(a) * * * 

(5) A requirement that the alien 

provide DHS with written notice of any 

change of address in the prescribed 

manner. 

* * * * * 

PART 244—TEMPORARY PROTECTED 

STATUS FOR NATIONALS OF 

DESIGNATED STATES 

■ 103. The authority citation for part 

244 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1254, 1254a note, 

8 CFR part 2. 

§ 244.3 [Amended] 

■ 104. Section 244.3 is amended by: 

■ a. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in the first sentence in 

paragraph (b); 

■ b. Removing the phrase ‘‘of grounds of 

inadmissibility on Form I–601 

(Application for waiver of grounds of 

excludability)’’ in the second sentence 

in paragraph (b); 

■ c. Revising the term ‘‘The Service’’ to 

read ‘‘USCIS’’ in paragraph (c) 

introductory text. 

§ 244.4 [Amended] 

■ 105. In § 244.4, paragraph (b) is 

amended by revising the term ‘‘section 

243(h)(2) of the Act’’ to read ‘‘section 

208(b)(2)(A) of the Act’’. 

§ 244.5 [Amended] 

■ 106. In § 244.5, paragraph (a) is 

amended by revising the term ‘‘the 

Attorney General’’ to read ‘‘DHS’’ 

wherever the term appears. 

■ 107. Section 244.6 is revised to read 

as follows: 

§ 244.6 Application. 

(a) An application for Temporary 

Protected Status must be submitted in 

accordance with the form instructions, 

the applicable country-specific Federal 

Register notice that announces the 

procedures for TPS registration or reregistration, and 8 CFR 103.2, except as 

otherwise provided in this section, with 

the appropriate fees and biometric 

information as described in 8 CFR 

103.7(b)(1), 103.16, and 103.17. 

(b) An applicant for TPS may also 

request employment authorization 

pursuant to 8 CFR 274a. Those 

applicants between the ages of 14 and 

65 who are not requesting authorization 

to work will not be charged a fee for an 

application for employment 

authorization. 

§ 244.7 [Amended] 

■ 108. Section 244.7 is amended by: 

■ a. Revising the phrase ‘‘Form I–821, 

Application for Temporary Protected 

Status’’ to read ‘‘the form designated by 

USCIS with any prescribed fees and in 

accordance with the form instructions’’ 

in paragraph (a); and 

■ b. Revising the term ‘‘Attorney 

General’’ to read ‘‘DHS’’ in paragraph 

(b). 

§ 244.9 [Amended] 

■ 109. In § 244.9, paragraph (a)(4) is 

amended by revising the phrase ‘‘Form 

I–551 or Form I–94’’ to read ‘‘evidence 

of admission for lawful permanent 

residence or nonimmigrant status’’. 

■ 110. Section 244.10 is amended by: 

■ a. Revising the section heading; and 

■ b. Revising paragraphs (a), (b) (c) and 

(d). 

The revisions read as follows: 

§ 244.10 Decision and appeal. 

(a) Temporary treatment benefits. 

USCIS will grant temporary treatment 

benefits to the applicant if the applicant 

establishes prima facie eligibility for 

Temporary Protected Status in 

accordance with 8 CFR 244.5. 

(b) Temporary Protected Status. Upon 

review of the evidence presented, 

USCIS may approve or deny the 

application for Temporary Protected 

Status in the exercise of discretion, 

consistent with the standards for 

eligibility in 8 CFR 244.2, 244.3, and 

244.4. 

(c) Denial. The initial decision to 

deny Temporary Protected Status, a 

waiver of inadmissibility, or temporary 

treatment benefits shall be in writing 

served in person or by mail to the 

alien’s most recent address provided to 

the Service and shall state the reason(s) 

for the denial. Except as otherwise 

provided in this section, the alien will 

be given written notice of his or her 

right to appeal. If an appeal is filed, the 

administrative record shall be 

forwarded to the USCIS AAO for review 

and decision, except as otherwise 

provided in this section. 

(1) If the basis for the denial of the 

Temporary Protected Status constitutes 

a ground for deportability or 

inadmissibility which renders the alien 

ineligible for Temporary Protected 

Status under § 244.4 or inadmissible 

under § 244.3(c), the decision shall 


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53792 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

include a charging document which sets 

forth such ground(s). 

(2) If such a charging document is 

issued, the alien shall not have the right 

to appeal the USCIS decision denying 

Temporary Protected Status as provided 

in 8 CFR 103.3. However, the decision 

will also apprise the alien of his or her 

right to a de novo determination of his 

or her eligibility for Temporary 

Protected Status in removal proceedings 

pursuant to section 240 of the Act and 

8 CFR 1244.18. 

(d) Administrative appeal. The 

appellate decision will be served in 

accordance with 8 CFR 103.8. If the 

appeal is dismissed, the decision must 

state the reasons for dismissal. 

(1) If the appeal is dismissed on 

appeal under 8 CFR 244.18(b), the 

decision shall also apprise the alien of 

his or her right to a de novo 

determination of eligibility for 

Temporary Protected Status in removal 

proceedings pursuant to section 240 of 

the Act and 8 CFR 1244.18. 

(2) If the appeal is dismissed, USCIS 

may issue a charging document if no 

charging document is presently filed 

with the Immigration Court. 

(3) If a charging document has 

previously been filed or is pending 

before the Immigration Court, either 

party may move to re-calendar the case 

after the administrative appeal is 

dismissed. 

* * * * * 

§ 244.11 [Amended] 

■ 111. Section 244.11 is amended by 

revising the term ‘‘§ 3.3 of this chapter’’ 

to read ‘‘8 CFR 1003’’. 

§ 244.12 [Amended] 

■ 112. Section 244.12, is amended by: 

■ a. Revising the term ‘‘the INS’’ to read 

‘‘USCIS’’ in paragraphs (a) and (c); and 

■ b. Revising the phrase ‘‘appealed to 

the Administrative Appeals Unit’’ to 

read ‘‘pending administrative appeal’’ in 

paragraph (d). 

§ 244.14 [Amended] 

■ 113. Section 244.14 is amended by: 

■ a. Revising the term ‘‘director’’ to read 

‘‘USCIS’’ in paragraph (a) heading; 

■ b. Revising the term ‘‘The director’’ to 

read ‘‘USCIS’’ in paragraph (a) 

introductory text; 

■ c. Revising the term ‘‘the district 

director’’ to read ‘‘USCIS’’ in paragraph 

(a)(2) last sentence; 

■ d. Revising the term ‘‘Attorney 

General’’ to read ‘‘DHS’’ in paragraph 

(a)(3); 

■ e. Revising the term ‘‘director’’ to read 

‘‘USCIS’’ in paragraph (b) heading; and 

by 

■ f. Revising the term ‘‘§ 240.14(a)(3)’’ to 

read ‘‘8 CFR 244.14(a)(3)’’ and the term 

‘‘§ 103.5a of this chapter’’ to read ‘‘8 

CFR 103.8(a)(2)’’ in paragraph (b)(1). 

§ 244.16 [Amended] 

■ 114. In § 244.16, the term ‘‘the 

Department of Justice’’ is revised to read 

‘‘DHS’’. 

■ 115. Section 244.17 is revised to read 

as follows: 

§ 244.17 Periodic registration. 

(a) Aliens granted Temporary 

Protected Status must re-register 

periodically in accordance with USCIS 

instructions. Such registration applies to 

nationals of those foreign states 

designated or redesignated for more 

than one year by DHS. Applicants for 

periodic re-registration must apply 

during the registration period provided 

by USCIS. Re-registering applicants will 

not need to re-pay the TPS application 

fee that was required for initial 

registration except that aliens requesting 

employment authorization must submit 

the application fee for employment 

authorization. The biometric service fee 

described in 103.7(b), or an approved 

fee waiver, will be required of 

applicants age 14 and over. By 

completing the application, applicants 

attest to their continuing eligibility. 

Such applicants do not need to submit 

additional supporting documents unless 

USCIS requests them to do so. 

(b) If an alien fails to register without 

good cause, USCIS will withdraw 

Temporary Protected Status. USCIS 

may, for good cause, accept and approve 

an untimely registration request. 

■ 116. Section 244.18 is amended by 

revising paragraphs (b) and (d) to read 

as follows: 

§ 244.18 Issuance of charging documents; 

detention. 

* * * * * 

(b) The filing of the charging 

document by DHS with the Immigration 

Court renders inapplicable any other 

administrative, adjudication or review 

of eligibility for Temporary Protected 

Status. The alien shall have the right to 

a de novo determination of his or her 

eligibility for Temporary Protected 

Status in removal proceedings pursuant 

to section 240 of the Act and 8 CFR 

1244.18. Review by the Board of 

Immigration Appeals shall be the 

exclusive administrative appellate 

review procedure. If an appeal is 

already pending before the 

Administrative Appeals Office (AAO), 

USCIS will notify the AAO of the filing 

of the charging document, in which case 

the pending appeal shall be dismissed 

and the record of proceeding returned to 

the jurisdiction where the charging 

document was filed. 

* * * * * 

(d) An alien who is determined by 

USCIS deportable or inadmissible upon 

grounds which would have rendered the 

alien ineligible for such status as 

provided in 8 CFR 244.3(c) and 8 CFR 

244.4 may be detained under the 

provisions of this chapter pending 

removal proceedings. Such alien may be 

removed from the United States upon 

entry of a final order of removal. 

PART 245—ADJUSTMENT OF STATUS 

TO THAT OF PERSON ADMITTED FOR 

PERMANENT RESIDENCE 

■ 117. The authority citation for part 

245 is revised to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1182, 

1255; Pub. L. 105–100, section 202, 111 Stat. 

2160, 2193; Pub. L. 105–277, section 902, 112 

Stat. 2681; Pub. L. 110–229, tit. VII, 122 Stat. 

754; 8 CFR part 2. 

■ 118. Section 245.1 is amended by: 

■ a. Revising the term to ‘‘section 

214(k)’’ to read: ‘‘section 214(l)’’ in the 

last sentence in paragraph (c)(2); 

■ b. Removing and reserving paragraph 

(e)(2); 

■ c. Revising the third sentence in 

paragraph (g)(1); and by 

■ d. Removing the fourth sentence in 

paragraph (g)(1). 

The revision reads as follows: 

§ 245.1 Eligibility. 

* * * * * 

(g) * * * 

(1) * * * A preference immigrant visa 

is considered available for accepting 

and processing if the applicant has a 

priority date on the waiting list which 

is earlier than the date shown in the 

Bulletin (or the Bulletin shows that 

numbers for visa applicants in his or her 

category are current). * * * 

* * * * * 

§ 245.2 [Amended] 

■ 119. Section 245.2 is amended by 

removing the phrase ‘‘, except when the 

applicant has established eligibility for 

the benefits of Public Law 101–238’’ in 

the second sentence in paragraph 

(a)(5)(ii). 

■ 120. In § 245.7, paragraph (a) is 

revised to read as follows: 

§ 245.7 Adjustment of status of 

certain Soviet and Indochinese parolees 

under the Foreign Operations 

Appropriations Act for Fiscal Year 1990 

(Pub. L. 101–167). (a) Application. Each 

person applying for benefits under 

section 599E of Public Law 101–167, 

103 Stat. 1195, 1263, must file an 

application on the form prescribed by 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53793 

USCIS with the fee prescribed in 8 CFR 

103.7(b)(1) and in accordance with the 

form instructions. 

* * * * * 

§ 245.9 [Removed and Reserved] 

■ 121. Section 245.9 is removed and 

reserved. 

■ 122. In § 245.10, paragraph (n)(2) is 

revised to read as follows: 

§ 245.10 Adjustment of status upon 

payment of additional sum under Public 

Law 103–317. 

* * * * * 

(n) * * * 

(2) To demonstrate physical presence 

on December 21, 2000, the alien may 

submit copies of documents issued by 

the former INS or EOIR such as arrivaldeparture forms or notices to appear in 

immigration court. 

* * * * * 

■ 123. In § 245.11, remove the last two 

sentences in paragraph (f) and add a 

new sentence to read as follows: 

§ 245.11 Adjustment of aliens in S 

nonimmigrant classification. 

* * * * * 

(f) * * * The applicant may request 

employment authorization or 

permission to travel outside the United 

States while the application is pending 

by filing an application pursuant to 8 

CFR 274a.13 or 8 CFR 223.2. 

* * * * * 

§ 245.12 [Removed and Reserved] 

■ 124. Section 245.12 is removed and 

reserved. 

§ 245.13 [Removed and Reserved] 

■ 125. Section 245.13 is removed and 

reserved. 

■ 126. Section 245.15 is amended by: 

■ a. Revising the phrase ‘‘Advance 

Authorization for Parole (Form I–512)’’ 

to read ‘‘advance parole authorization’’ 

and revising the phrase ‘‘Advance 

Authorization for Parole’’ to read 

‘‘authorization’’ in paragraph (c)(4)(ii); 

■ b. Revising paragraph (g)(1); 

■ c. Revising paragraph (n)(1); 

■ d. Revising the phrase ‘‘the Director of 

the Nebraska Service Center verifies that 

Service’’ to read ‘‘USCIS verifies that 

DHS’’ and by revising the term ‘‘the 

Director may approve’’ to read ‘‘USCIS 

may approve’’ in the first sentence in 

paragraph (n)(2); 

■ e. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in the second sentence in 

paragraph (n)(2); 

■ f. Revising paragraph (s)(1); 

■ g. Revising paragraph (t)(1); 

■ h. Revising the phrase ‘‘an 

Application for Travel Document (Form 

I–131) with the Nebraska Service 

Center, at P.O. Box 87245, Lincoln, NE 

68501–7245’’ to read ‘‘a request on the 

form designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions’’ 

in the first sentence of paragraph 

(t)(2)(i); and 

■ i. Revising the term ‘‘Form I–485’’ to 

read ‘‘application for adjustment of 

status’’ in the second sentence in 

paragraph (t)(2)(i). 

The revisions read as follows: 

§ 245.15 Adjustment of Status of Certain 

Haitian Nationals under the Haitian Refugee 

Immigrant Fairness Act of 1998 (HRIFA). 

* * * * * 

(g) * * * 

(1) Filing of applications with USCIS. 

USCIS has jurisdiction over all 

applications for the benefits of section 

902 of HRIFA as a principal applicant 

or as a dependent under this section, 

except for applications filed by aliens 

who are in pending immigration 

proceedings as provided in paragraph 

(g)(2) of this section. All applications 

filed with USCIS for the benefits of 

section 902 of HRIFA must be submitted 

on the form designated by USCIS with 

the fees prescribed in 8 CFR 103.7(b)(1) 

and in accordance with the form 

instructions. After proper filing of the 

application, USCIS will instruct the 

applicant to appear for biometrics 

collection as prescribed in 8 CFR 

103.16. 

* * * * * 

(n) * * * 

(1) Application for employment 

authorization. An applicant for 

adjustment of status under section 902 

of HRIFA who wishes to obtain initial 

or continued employment authorization 

during the pendency of the adjustment 

application must file an application on 

the form designated by USCIS with the 

fee prescribed in 8 CFR 103.7(b)(1) and 

in accordance with the form 

instructions. The applicant may submit 

the application either concurrently with 

or subsequent to the filing of the 

application for HRIFA benefits. 

* * * * * 

(s) Action of immigration judge upon 

referral of decision by a notice of 

certification. (1) General. Upon the 

referral by a notice of certification of a 

decision to deny the application, in 

accordance with paragraph (r)(3) of this 

section, the immigration judge will 

conduct a hearing to determine whether 

the alien is eligible for adjustment of 

status under section 902 of HRIFA in 

accordance with this paragraph (s)(1). 

* * * * * 

(t) * * * 

(1) Travel from and return to the 

United States while the application for 

adjustment of status is pending. If an 

applicant for benefits under section 902 

of HRIFA desires to travel outside, and 

return to, the United States while the 

application for adjustment of status is 

pending, he or she must file a request 

for advance parole authorization on the 

form designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

Unless the applicant files an advance 

parole request prior to departing from 

the United States and USCIS approves 

such request, his or her application for 

adjustment of status under section 902 

of HRIFA is deemed to be abandoned as 

of the moment of departure. Parole may 

only be authorized pursuant to the 

authority contained in, and the 

standards prescribed in, section 

212(d)(5) of the Act. 

* * * * * 

■ 127. Section 245.18 is amended by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (d)(1); 

■ c. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in paragraph (d)(2); and 

■ d. Revising the last sentence in 

paragraph (k). 

The revisions read as follows: 

§ 245.18 Physicians with approved 

employment-based petitions serving in a 

medically underserved area or a Veterans 

Affairs facility. 

* * * * * 

(d) Employment authorization. (1) 

Once USCIS has approved a petition 

described in paragraph (a) of this 

section, the alien physician may apply 

for permanent residence and 

employment authorization on the forms 

designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

* * * * * 

(k) * * * Such physicians may apply 

for advance parole on the form 

designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

* * * * * 

§ 245.20 [Removed and Reserved] 

■ 128. Section 245.20 is removed and 

reserved. 

■ 129–130. Section 245.21 is amended 

by: 

■ a. Adding the word ‘‘and’’ at the end 

of paragraph (a)(3); 

■ b. Removing paragraph (a)(4); 

■ c. Redesignating paragraph (a)(5) as 

paragraph (a)(4); 

■ d. Revising paragraph (b); 

■ e. Revising the second sentence in 

paragraph (d)(1); 


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■ f. Revising paragraph (d)(2); 

■ g. Revising the last sentence in 

paragraph (f); 

■ h. Revising paragraph (h); 

■ i. Revising paragraph (i); 

■ j. Revising the terms, ‘‘Service’’ and 

‘‘Service’s’’ to read ‘‘USCIS’’’ in 

paragraph (j); 

■ k. Removing paragraph (m); and 

■ l. By revising the terms ‘‘The Service’’ 

and ‘‘the Service’’ to read ‘‘USCIS’’ 

wherever the terms appear in the 

following paragraphs: 

■ i. Paragraph (a) introductory text; 

■ ii. Paragraph (c); 

■ iii. Paragraph (d) introductory text; 

■ iv. Paragraph (d)(4); 

■ v. Paragraph (g)(3); 

■ vi. Paragraph (j); 

■ vii. Paragraph (k); and 

■ viii. Paragraph (l). 

The revisions read as follows: 

§ 245.21 Adjustment of status of certain 

nationals of Vietnam, Cambodia, and Laos. 

* * * * * 

(b) Application. An applicant must 

submit an application on the form 

designated by USCIS with the fee 

specified in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

Applicants who are 14 through 79 years 

of age must also submit the biometrics 

service fee described in 8 CFR 103.17. 

* * * * * 

(d) * * * 

(1) * * * An alien who is eligible for 

adjustment of status under section 586 

of Public Law 106–429 may request a 

stay of removal during the pendency of 

the application. * * * 

(2) DHS will exercise its discretion 

not to grant a stay of removal, 

deportation, or exclusion with respect to 

an alien who is inadmissible on any of 

the grounds specified in paragraph 

(m)(3) of this section, unless there is 

substantial reason to believe that USCIS 

will grant the necessary waivers of 

inadmissibility. 

* * * * * 

(f) * * * In order to obtain a waiver 

for any of these grounds, the applicant 

must submit an application on the form 

designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

* * * * * 

(h) Employment authorization. 

Applicants who want to obtain 

employment authorization based on a 

pending application for adjustment of 

status under this section may apply on 

the form specified by USCIS with the 

fee prescribed in 8 CFR 103.7(b)(1) and 

in accordance with the form 

instructions. 

(i) Travel while an application to 

adjust status is pending. An applicant 

who wishes to travel outside the United 

States while the application is pending 

must obtain advance permission by 

filing the application specified by 

USCIS with the fee prescribed in 8 CFR 

103.7(b)(1) and in accordance with the 

form instructions. 

* * * * * 

■ 131. In § 245.22, paragraph (c) is 

revised to read as follows: 

§ 245.22 Evidence to demonstrate an 

alien’s physical presence in the United 

States on a specific date. 

* * * * * 

(c) DHS-issued documentation. An 

applicant for permanent residence may 

demonstrate physical presence by 

submitting DHS-issued (or predecessor 

agency-issued) documentation such as 

an arrival-departure form or notice to 

appear in immigration proceedings. 

* * * * * 

PART 245a—ADJUSTMENT OF 

STATUS TO THAT OF PERSONS 

ADMITTED FOR TEMPORARY OR 

PERMANENT RESIDENT STATUS 

UNDER SECTION 245A OF THE 

IMMIGRATION AND NATIONALITY ACT 

■ 132. The authority citation for part 

245a continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1255a, and 

1255a note. 

■ 133. The heading for part 245a is 

revised as set forth above. 

§ 245a.4 [Amended] 

■ 134. In § 245a.4, paragraph (b)(16), 

third sentence is amended by revising 

the term ‘‘§ 103.5a(b) of this Act’’ to read 

‘‘8 CFR 103.8(b)’’. 

§ 245a.12 [Amended] 

■ 135. In § 245a.12, paragraph (b) 

introductory text, third sentence is 

amended by revising the term 

‘‘fingerprinting as prescribed in 

§ 103.2(e) of this chapter’’ to read 

‘‘fingerprinting as prescribed in 8 CFR 

103.16’’. 

§ 245a.37 [Amended] 

■ 136. In § 245a.37, paragraph (b) is 

amended by revising the term ‘‘§ 103.5a 

of this chapter’’ to read ‘‘8 CFR 103.8’’ 

wherever that term appears. 

PART 248—CHANGE OF 

NONIMMIGRANT CLASSIFICATION 

■ 137. The authority citation for part 

248 continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 

8 CFR part 2. 

§ 248.1 [Amended] 

■ 138. Section 248.1 is amended by: 

■ a. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in paragraph (b) 

introductory text; 

■ b. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in paragraph (b)(1); 

■ c. Revising the phrase ‘‘The district 

director or service center director shall’’ 

to read ‘‘USCIS will’’ in the second 

sentence in paragraph (c)(1); 

■ d. Revising the phrase ‘‘The district 

director or service center director’’ to 

read ‘‘USCIS’’ in the last sentence in 

paragraph (c)(3); and 

■ e. Removing the phrase ‘‘before the 

Service’’ in the last sentence in 

paragraph (c)(3). 

■ 139. Section 248.3 is amended by: 

■ a. Adding introductory text; 

■ b. Revising paragraph (a); 

■ c. Revising paragraph (b); 

■ d. Revising the phrase ‘‘Form I–539 

and be accompanied by a Form I–566, 

completed and endorsed in accordance 

with the instructions on that form’’ to 

read ‘‘the prescribed application 

accompanied by the appropriate 

endorsement from the Department of 

State recommending the change of 

status’’ in the second sentence in 

paragraph (c); 

■ e. Removing and reserving paragraph 

(d); 

■ f. Revising the term ‘‘sections 

101(a)(15)(E), (H), (I), (J), (L), or (Q)(ii) 

of the Act’’ to read ‘‘sections 

101(a)(15)(E), (H), (I), (J), or (L) of the 

Act’’ in paragraph (e)(2); 

■ g. Revising the term ‘‘the district 

director’’ to read ‘‘USCIS’’ in the last 

sentence in paragraph (f); and 

■ h. Revising the phrase ‘‘Form I–539, 

Application to Extend/Change 

Nonimmigrant Status, with the 

appropriate fee, and Form I–854, InterAgency Alien Witness and Informant 

Record, with attachments’’ to read ‘‘the 

forms designated by USCIS with the fee 

prescribed in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions’’ 

in paragraph (h) introductory text. 

The revisions read as follows: 

§ 248.3 Petition and application. 

Requests for a change of status must 

be filed on the form designated by 

USCIS with the fee prescribed in 8 CFR 

103.7(b) and in accordance with the 

form instructions. 

(a) Petition by employer. An employer 

must submit a petition for a change of 

status to E–1 treaty trader, E–2 treaty 

investor, H–1C, H–1B, H–2A, H–2B, H– 

3, L–1, O–1, O–2, P–1, P–2, P–3, Q–1, 

R–1, or TN nonimmigrant. 

(b) Application by nonimmigrant. 

(1) Individual applicant. Any 

nonimmigrant who seeks to change 

status to: 

(i) A dependent nonimmigrant 

classification as the spouse or child of 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53795 

a principal whose nonimmigrant 

classification is listed in paragraph (a) of 

this section, or 

(ii) Any other nonimmigrant 

classification not listed in paragraph (a) 

of this section must apply for a change 

of status on his or her own behalf. 

(2) Multiple applicants. More than 

one person may be included in an 

application where the co-applicants are 

all members of a single family group 

and either all hold the same 

nonimmigrant status or one holds a 

nonimmigrant status and the coapplicants are his or her spouse and/or 

children who hold derivative 

nonimmigrant status based on the 

principal’s nonimmigrant status. 

* * * * * 

PART 264—REGISTRATION AND 

FINGERPRINTING OF ALIENS IN THE 

UNITED STATES 

■ 140. The authority citation for part 

264 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1201, 1201a, 

1301–1305; 8 CFR part 2. 

■ 141. Section 264.1 is amended by: 

■ a. Removing the entry for Form 

‘‘I–485A’’ from the table in paragraph 

(a); 

■ b. Removing the entries for Forms 

‘‘I–688’’, ‘‘I–688A’’ and ‘‘I–688B’’ from 

the table in paragraph (b); 

■ c. Adding the entries for ‘‘Form I– 

862’’ and ‘‘Form I–863’’ in proper 

numerical sequence in the table in 

paragraph (b); 

■ d. Revising paragraph (c); 

■ e. Revising the term ‘‘Service’’ to read 

‘‘USCIS’’ in paragraph (d); 

■ f. Revising paragraph (g); and 

■ g. Removing paragraphs (h) and (i). 

The revisions read as follows: 

§ 264.1 Registration and fingerprinting. 

* * * * * 

(b) * * * 

Form No. and Class 

* * * * * 

Form I–862, Notice to Appear—Aliens 

against whom removal proceedings are 

being instituted. 

Form I–863, Notice of Referral to 

Immigration Judge—Aliens against 

whom removal proceedings are being 

instituted. 

* * * * * 

(c) Replacement of alien registration. 

Any alien whose registration document 

is not available for any reason must 

immediately apply for a replacement 

document in the manner prescribed by 

USCIS. 

* * * * * 

(g) Registration and fingerprinting of 

children who reach age 14. Within 30 

days after reaching the age of 14, any 

alien in the United States not exempt 

from alien registration under the Act 

and this chapter must apply for 

registration and fingerprinting, unless 

fingerprinting is waived under 

paragraph (e) of this section, in 

accordance with applicable form 

instructions. 

(1) Permanent residents. If such alien 

is a lawful permanent resident of the 

United States and is temporarily absent 

from the United States when he reaches 

the age of 14, he must apply for 

registration and provide a photograph 

within 30 days of his or her return to the 

United States in accordance with 

applicable form instructions. The alien, 

if a lawful permanent resident of the 

United States, must surrender any prior 

evidence of alien registration. USCIS 

will issue the alien new evidence of 

alien registration. 

(2) Others. In the case of an alien who 

is not a lawful permanent resident, the 

alien’s previously issued registration 

document will be noted to show that he 

or she has been registered and the date 

of registration. 

§ 264.2 [Amended] 

■ 142. In § 264.2, paragraph (d) is 

amended by revising the term ‘‘be 

fingerprinted on Form FD–258, 

Applicant Card, as prescribed in 

§ 103.2(e) of this chapter’’ to read ‘‘be 

fingerprinted as prescribed in 8 CFR 

103.16.’’ 

■ 143. Section 264.5 is amended by: 

■ a. Revising paragraph (a); 

■ b. Revising the term ‘‘Form I–90’’ to 

read ‘‘the designated form’’ wherever 

the term appears in paragraphs (c)(1) 

and (2); 

■ c. Revising paragraph (d) introductory 

text; 

■ d. Revising paragraph (e); 

■ e. Revising paragraph (g) and by 

■ f. Adding paragraphs (h) and (i). 

The revisions read as follows: 

§ 264.5 Application for replacement 

Permanent Resident Card. 

(a) Filing instructions. A request to 

replace a Permanent Resident Card must 

be filed in accordance with the 

appropriate form instructions and with 

the fee specified in 8 CFR 103.7(b)(1); 

except that no fee is required for an 

application filed pursuant to paragraphs 

(b)(7) through (9) of this section, or 

paragraphs (d)(2) or (4) of this section. 

* * * * * 

(d) Conditional permanent residents 

required to file. A conditional 

permanent resident whose card is 

expiring may apply to have the 

conditions on residence removed in 

accordance with 8 CFR 216.4 or 8 CFR 

216.6. A conditional resident who seeks 

to replace a permanent resident card 

that is not expiring within 90 days may 

apply for a replacement card on the 

form prescribed by USCIS: 

* * * * * 

(e) Supporting documentation. (1) The 

prior Permanent Resident Card must be 

surrendered to USCIS if a new card is 

being requested in accordance with 

paragraphs (b)(2) through (5) and (b)(8) 

and (9) of this section. 

(2) A request to replace a Permanent 

Resident Card filed pursuant to 

paragraph (b)(4) of this section must 

include evidence of the name change 

such as a court order or marriage 

certificate. 

(3) A request to replace a Permanent 

Resident Card in order to change any 

other biographic data on the card must 

include documentary evidence verifying 

the new data. 

* * * * * 

(g) Eligibility for evidence of 

permanent residence while in 

deportation, exclusion, or removal 

proceedings. A person in deportation, 

exclusion, or removal proceedings is 

entitled to evidence of permanent 

resident status until ordered excluded, 

deported, or removed. USCIS will issue 

such evidence in the form of a 

temporary permanent resident 

document that will remain valid until 

the proceedings are concluded. Issuance 

of evidence of permanent residence to 

an alien who had permanent resident 

status when the proceedings 

commenced shall not affect those 

proceedings. 

(h) Temporary evidence of 

registration. USCIS may issue temporary 

evidence of registration and lawful 

permanent resident status to a lawful 

permanent resident alien who is 

departing temporarily from the United 

States and has applied for issuance of a 

replacement permanent resident card if 

USCIS is unable to issue and deliver 

such card prior to the alien’s 

contemplated return to the United 

States. The alien must surrender such 

temporary evidence upon receipt of his 

or her permanent resident card. 

(i) Waiver of requirements. USCIS 

may waive the photograph, in person 

filing, and fingerprinting requirements 

of this section in cases of confinement 

due to advanced age or physical 

infirmity. 

■ 144. Section 264.6 is revised to read 

as follows: 

§ 264.6 Application for a nonimmigrant 

arrival-departure record. 

(a) Eligibility. USCIS may issue a new 

or replacement arrival-departure record 

to a nonimmigrant who seeks: 


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(1) To replace a lost or stolen record; 

(2) To replace a mutilated record; or 

(3) Was not issued an arrivaldeparture record pursuant to 8 CFR 

235.1(h)(1)(i), (iii), (iv), (v), or (vi) when 

last admitted as a nonimmigrant, and 

has not since been issued such record 

but now requires one. 

(b) Application. A nonimmigrant may 

request issuance or replacement of a 

nonimmigrant arrival-departure record 

by applying on the form designated by 

USCIS with the fee prescribed in 8 CFR 

103.7(b)(1) and in accordance with the 

form instructions. 

(c) Processing. A pending application 

filed under paragraph (a) of this section 

is temporary evidence of registration. If 

the application is approved, USCIS will 

issue an arrival-departure document. 

There is no appeal from the denial of 

this application. 

PART 265—NOTICES OF ADDRESS 

■ 145. The authority citation for part 

265 is revised to read as follows: 

Authority: 8 U.S.C. 1103 and 1305. 

■ 146. Section 265.1 is revised to read 

as follows: 

§ 265.1 Reporting change of address. 

Except for those exempted by section 

263(b) of the Act, all aliens in the 

United States required to register under 

section 262 of the Act must report each 

change of address and new address 

within 10 days of such change in 

accordance with instructions provided 

by USCIS. 

PART 270—PENALTIES FOR 

DOCUMENT FRAUD 

■ 147. The authority citation for part 

270 continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, and 1324c; 

Pub. L. 101–410, 104 Stat. 890, as amended 

by Pub. L. 104–134, 110 Stat. 1321. 

§ 270.2 [Amended] 

■ 148. Section 270.2 is amended by 

revising the term ‘‘§ 103.5a(a)(2) of this 

chapter’’ to read ‘‘8 CFR 103.8(a)(2)’’ 

wherever that term appears in the 

following places: 

■ a. Paragraph (d) and 

■ b. Paragraph (i). 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 149. The authority citation for part 

274a continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 

CFR part 2. 

■ 150. Section 274a.12 is amended by: 

■ a. Revising the term ‘‘BCIS’’ to read 

‘‘USCIS’’ wherever that term appears in 

paragraph (a)(5); 

■ b. Revising paragraph (b)(6)(iv); 

■ c. Revising the term ‘‘BCIS’’ to read 

‘‘USCIS’’ in paragraph (c) introductory 

text; 

■ d. Revising paragraph (c)(1); 

■ e. Revising paragraph (c)(4); and 

■ f. Removing and reserving paragraph 

(c)(23). 

The revisions read as follows: 

§ 274a.12 Classes of aliens authorized to 

accept employment. 

* * * * * 

(b) * * * 

(6) * * * 

(iv) An employment authorization 

document under paragraph (c)(3)(i)(C) of 

this section based on a 17-month STEM 

Optional Practical Training extension, 

and whose timely filed employment 

authorization request is pending and 

employment authorization issued under 

paragraph (c)(3)(i)(B) of this section has 

expired. Employment is authorized 

beginning on the expiration date of the 

authorization issued under paragraph 

(c)(3)(i)(B) of this section and ending on 

the date of USCIS’ written decision on 

the current employment authorization 

request, but not to exceed 180 days; or 

* * * * * 

(c) * * * 

(1) An alien spouse or unmarried 

dependent child; son or daughter of a 

foreign government official (A–1 or A– 

2) pursuant to 8 CFR 214.2(a)(2) and 

who presents an endorsement from an 

authorized representative of the 

Department of State; 

* * * * * 

(4) An alien spouse or unmarried 

dependent child; son or daughter of a 

foreign government official (G–1, G–3 or 

G–4) pursuant to 8 CFR 214.2(g) and 

who presents an endorsement from an 

authorized representative of the 

Department of State; 

* * * * * 

■ 151. Section 274a.13 is amended by: 

■ a. Revising paragraph (a); 

■ b. Removing the term ‘‘INS’’ in 

paragraph (b); and 

■ c. Revising paragraph (d). 

The revision reads as follows: 

§ 274a.13 Application for employment 

authorization. 

(a) Application. Aliens authorized to 

be employed under sections 

274a.12(a)(3), (4), (6) through (8), (a)(10) 

through (15), and (a)(20) must file an 

application in order to obtain 

documentation evidencing this fact. 

(1) Aliens who may apply for 

employment authorization under 8 CFR 

274a.12(c), except for those who may 

apply under 8 CFR 274a.12(c)(8), must 

apply on the form designated by USCIS 

with the fee prescribed in 8 CFR 

103.7(b)(1) and in accordance with the 

form instructions. The approval of 

applications filed under 8 CFR 

274a.12(c), except for 8 CFR 

274a.12(c)(8), are within the discretion 

of USCIS. Where economic necessity 

has been identified as a factor, the alien 

must provide information regarding his 

or her assets, income, and expenses. 

(2) An initial employment 

authorization request for asylum 

applicants under 8 CFR 274a.12(c)(8) 

must be filed on the form designated by 

USCIS in accordance with the form 

instructions. The applicant also must 

submit a copy of the underlying 

application for asylum or withholding 

of deportation, together with evidence 

that the application has been filed in 

accordance with 8 CFR 208.3 and 208.4. 

An application for an initial 

employment authorization or for a 

renewal of employment authorization 

filed in relation to a pending claim for 

asylum shall be adjudicated in 

accordance with 8 CFR 208.7. An 

application for renewal or replacement 

of employment authorization submitted 

in relation to a pending claim for 

asylum, as provided in 8 CFR 208.7, 

must be filed, with fee or application for 

waiver of such fee. 

* * * * * 

(d) Interim employment 

authorization. USCIS will adjudicate the 

application within 90 days from the 

date of receipt of the application, except 

in the case of an initial application for 

employment authorization under 8 CFR 

274a.12(c)(8), which is governed by 

paragraph (a)(2) of this section, and 8 

CFR 274a.12(c)(9) in so far as it is 

governed by 8 CFR 245.13(j) and 

245.15(n). Failure to complete the 

adjudication within 90 days will result 

in the grant of an employment 

authorization document for a period not 

to exceed 240 days. Such authorization 

will be subject to any conditions noted 

on the employment authorization 

document. However, if USCIS 

adjudicates the application prior to the 

expiration date of the interim 

employment authorization and denies 

the individual’s employment 

authorization application, the interim 

employment authorization granted 

under this section will automatically 

terminate as of the date of the 

adjudication and denial. 

PART 287—FIELD OFFICERS; 

POWERS AND DUTIES 

■ 152. The authority citation for part 

287 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 

1251, 1252, 1357; Homeland Security Act of 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53797 

2002, Pub. L. 107–296 (6 U.S.C. 1, et seq.); 

8 CFR part 2. 

§ 287.5 [Amended] 

■ 153. Section 287.5 is amended by: 

■ a. Removing the phrase ‘‘as defined in 

8 CFR 103.1(b)’’ in paragraph (a) 

introductory text; 

■ b. Revising the term ‘‘the BCIS’’ to 

read ‘‘USCIS’’ in paragraph (c)(1)(viii); 

and 

■ c. Revising the term ‘‘the BCIS’’ to 

read ‘‘USCIS’’ in paragraph (c)(2)(viii). 

§ 287.7 [Amended] 

■ 154. In § 287.7, paragraph (b)(8) is 

amended by revising the term ‘‘the 

BCIS’’ to read ‘‘USCIS’’. 

PART 292—REPRESENTATION AND 

APPEARANCES 

■ 155. The authority citation for part 

292 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1252b, 1362. 

§ 292.1 [Amended] 

■ 156. Section 292.1 is amended by 

revising the terms ‘‘§ 1.1(f) of this 

chapter’’ and ‘‘8 CFR 1.1(f)’’ to read 

‘‘8 CFR 1.2’’ wherever the term appears 

in the following places: 

■ a. Paragraph (a)(1); and 

■ b. Paragraph (a)(6) first sentence. 

§ 292.3 [Amended] 

■ 157. Section 292.3 is amended by 

revising the terms ‘‘8 CFR 1.1(f)’’ and ‘‘8 

CFR 1.1(j)’’, to read ‘‘8 CFR 1.2’’ in 

paragraph (a)(2); 

■ 158. Section 292.4 is amended by 

revising paragraph (b) to read as follows: 

§ 292.4 Appearances. 

* * * * * 

(b) A party to a proceeding and his or 

her attorney or representative will be 

permitted to examine the record of 

proceeding in accordance with 6 CFR 

part 5. 

PART 299—IMMIGRATION FORMS 

■ 159. The authority citation for part 

299 continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103; 8 

CFR Part 2. 

■ 160. Section 299.1 is revised to read 

as follows: 

§ 299.1 Prescribed forms. 

A listing of USCIS, ICE, and CBP 

approved forms referenced in chapter I 

can be viewed on the Office of 

Management and Budget Web site at 

http://www.reginfo.gov. A listing of 

approved USCIS forms can also be 

viewed on its Internet Web site. 

§ 299.3 [Removed and Reserved] 

■ 161. Section 299.3 is removed and 

reserved. 

§ 299.5 [Removed and Reserved] 

■ 162. Section 299.5 is removed and 

reserved. 

PART 301—NATIONALS AND 

CITIZENS OF THE UNITED STATES AT 

BIRTH 

■ 163. The authority citation for part 

301 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1401; 8 CFR 

part 2. 

■ 164. Section 301.1 is amended by 

revising paragraph (a)(1) to read as 

follows: 

§ 301.1 Procedures. 

(a) * * * 

(1) As provided in 8 CFR part 341, a 

person residing in the United States 

who desires to be documented as a 

United States citizen pursuant to section 

301(h) of the Act may apply for a 

passport at a United States passport 

agency or may submit an application on 

the form specified by USCIS in 

accordance with the form instructions 

and with the fee prescribed by 8 CFR 

103.7(b)(1). The applicant will be 

notified when and where to appear 

before a USCIS officer for examination 

on his or her application. 

* * * * * 

PART 310—NATURALIZATION 

AUTHORITY 

■ 165. The authority citation for part 

310 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1421, 1443, 1447, 

1448; 8 CFR 2.1. 

§ 310.2 [Amended] 

■ 166. Section 310.2, first sentence, is 

amended by revising the term ‘‘The 

Service’’ to read ‘‘USCIS’’ and the term 

‘‘Service district’’ to read ‘‘Service 

district, as defined in 8 CFR 316.1,’’ 

PART 312—EDUCATIONAL 

REQUIREMENTS FOR 

NATURALIZATION 

■ 167. The authority citation for part 

312 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 

1448. 

■ 168. Section 312.1 is amended by 

revising paragraph (c) to read as follows: 

§ 312.1 Literacy requirements. 

* * * * * 

(c) Literacy examination. (1) Verbal 

skills. The ability of an applicant to 

speak English will be determined by a 

designated immigration officer from the 

applicant’s answers to questions 

normally asked in the course of the 

examination. 

(2) Reading and writing skills. Except 

as noted in 8 CFR 312.3, an applicant’s 

ability to read and write English must be 

tested in a manner prescribed by USCIS. 

USCIS will provide a description of test 

study materials and testing procedures 

on the USCIS Internet Web site. 

■ 169. Section 312.2 is amended by 

revising paragraph (c) to read as follows: 

§ 312.2 Knowledge of history and 

government of the United States. 

* * * * * 

(c) History and government 

examination. (1) Procedure. The 

examination of an applicant’s 

knowledge of the history and form of 

government of the United States must be 

given orally in English by a designated 

immigration officer, except: 

(i) If the applicant is exempt from the 

English literacy requirement under 8 

CFR 312.1(b), the examination may be 

conducted in the applicant’s native 

language with the assistance of an 

interpreter selected in accordance with 

8 CFR 312.4 but only if the applicant’s 

command of spoken English is 

insufficient to conduct a valid 

examination in English; 

(ii) The examination may be 

conducted in the applicant’s native 

language, with the assistance of an 

interpreter selected in accordance with 

8 CFR 312.4, if the applicant is required 

to satisfy and has satisfied the English 

literacy requirement under 8 CFR 

312.1(a), but the officer conducting the 

examination determines that an 

inaccurate or incomplete record of the 

examination would result if the 

examination on technical or complex 

issues were conducted in English, or 

(iii) The applicant has met the 

requirements of 8 CFR 312.3. 

(2) Scope and substance. The scope of 

the examination will be limited to 

subject matters prescribed by USCIS. In 

choosing the subject matters, in 

phrasing questions and in evaluating 

responses, due consideration must be 

given to the applicant’s: 

(i) Education, 

(ii) Background, 

(iii) Age, 

(iv) Length of residence in the United 

States, 

(v) Opportunities available and efforts 

made to acquire the requisite 

knowledge, and 

(vi) Any other elements or factors 

relevant to an appraisal of the adequacy 

of the applicant’s knowledge and 

understanding. 


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■ 170. Section 312.3 is revised to read 

as follows: 

§ 312.3 Testing of applicants who obtained 

permanent residence pursuant to section 

245A of the Act. 

An applicant who has obtained lawful 

permanent resident alien status 

pursuant to section 245A of the Act, and 

who, at that time, demonstrated English 

language proficiency in reading and 

writing, and knowledge of the 

government and history of the United 

States through either an examination 

administered by USCIS or the INS or a 

standardized section 312 test authorized 

by the USCIS or the INS for use with 

Legalization applicants as provided in 

section 245A(b)(1)(D)(iii) of the Act, will 

not be reexamined on those skills at the 

time of the naturalization interview. 

However, such applicant, unless 

otherwise exempt, must still 

demonstrate his or her ability to speak 

and understand English in accordance 

with 8 CFR 312.1(c)(1) and establish 

eligibility for naturalization through 

testimony in the English language. 

PART 316—GENERAL 

REQUIREMENTS FOR 

NATURALIZATION 

■ 171. The authority citation for part 

316 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1181, 1182, 1427, 

1443, 1447; 8 CFR part 2. 

■ 172. Section 316.1 is revised to read 

as follows: 

§ 316.1 Definitions. 

As used in this part, the term: 

Application means any form, as 

defined in 8 CFR part 1, on which an 

applicant requests a benefit relating to 

naturalization. 

Residence in the Service district 

where the application is filed means 

residence in the geographical area over 

which a particular local field office of 

USCIS ordinarily has jurisdiction for 

purposes of naturalization, regardless of 

where or how USCIS may require such 

benefit request to be submitted, or 

whether jurisdiction for the purpose of 

adjudication is relocated or internally 

reassigned to another USCIS office. 

Service district means the 

geographical area over which a 

particular local field office of USCIS 

ordinarily has jurisdiction for purposes 

of naturalization. 

§ 316.2 [Amended] 

■ 173. In § 316.2, paragraph (a)(5) is 

amended by removing the end the 

phrase ‘‘, and in which the alien seeks 

to file the application’’. 

■ 174. Section 316.4 is amended by: 

■ a. Revising paragraph (a); 

■ b. Removing paragraph (b); and 

■ c. Redesignating paragraph (c) as 

paragraph (b). 

The revision reads as follows: 

§ 316.4 Applications; documents. 

(a) The applicant will apply for 

naturalization in accordance with 

instructions provided on the form 

prescribed by USCIS for that purpose. 

* * * * * 

■ 175. Section 316.5 is amended by 

adding paragraph (b)(6) to read as 

follows: 

§ 316.5 Residence in the United States. 

* * * * * 

(b) * * * 

(6) Spouse of military personnel. 

Pursuant to section 319(e) of the Act, 

any period of time the spouse of a 

United States citizen resides abroad will 

be treated as residence in any State or 

district of the United States for purposes 

of naturalization under section 316(a) or 

319(a) of the Act if, during the period of 

time abroad, the applicant establishes 

that he or she was: 

(i) The spouse of a member of the 

Armed Forces; 

(ii) Authorized to accompany and 

reside abroad with that member of the 

Armed Forces pursuant to the member’s 

official orders; and 

(iii) Accompanying and residing 

abroad with that member of the Armed 

Forces in marital union in accordance 

with 8 CFR 319.1(b). 

* * * * * 

■ 176. Section 316.6 is added to read as 

follows: 

§ 316.6 Physical presence for certain 

spouses of military personnel. 

Pursuant to section 319(e) of the Act, 

any period of time the spouse of a 

United States citizen resides abroad will 

be treated as physical presence in any 

State or district of the United States for 

purposes of naturalization under section 

316(a) or 319(a) of the Act if, during the 

period of time abroad, the applicant 

establishes that he or she was: 

(a) The spouse of a member of the 

Armed Forces; 

(b) Authorized to accompany and 

reside abroad with that member of the 

Armed Forces pursuant to the member’s 

official orders; and 

(c) Accompanying and residing 

abroad with that member of the Armed 

Forces in marital union in accordance 

with 8 CFR 319.1(b). 

PART 319—SPECIAL CLASSES OF 

PERSONS WHO MAY BE 

NATURALIZED: SPOUSES OF UNITED 

STATES CITIZENS 

■ 177. The authority citation for part 

319 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1430, 1443. 

§ 319.1 [Amended] 

■ 178. In § 319.1, paragraph (a)(5) is 

amended by removing the phrase ‘‘and 

in which the alien has filed the 

application’’ 

■ 179. Section 319.3 is amended by 

revising paragraph (a) to read as follows: 

§ 319.3 Surviving spouse, child, or parent 

of a United States citizen who died during 

a period of honorable service in an active 

duty status in the Armed Forces of the 

United States. 

(a) Eligibility. To be eligible for 

naturalization under section 319(d) of 

the Act, the surviving spouse, child, or 

parent of a United States citizen must: 

(1) Establish that his or her citizen 

spouse, child, or parent died during a 

period of honorable service in an active 

duty status in the Armed Forces of the 

United States and, in the case of a 

surviving spouse, establish that he or 

she was living in marital union with the 

citizen spouse, in accordance with 8 

CFR 319.1(b), at the time of the citizen 

spouse’s death; 

(2) At the time of examination on the 

application for naturalization, reside in 

the United States pursuant to a lawful 

admission for permanent residence; 

(3) Be a person of good moral 

character, attached to the principles of 

the Constitution of the United States, 

and favorably disposed toward the good 

order and happiness of the United 

States; and 

(4) Comply with all other 

requirements for naturalization as 

provided in 8 CFR 316, except for those 

contained in 8 CFR 316.2(a)(3) through 

(6). 

* * * * * 

■ 180. Section 319.11 is amended by 

revising paragraph (a) introductory text 

to read as follows: 

§ 319.11 Filing of application. 

(a) General. An applicant under this 

part must submit an application for 

naturalization in accordance with the 

form instructions with the fee required 

by 8 CFR 103.7(b)(1). An alien spouse 

applying for naturalization under 

section 319(b) of the Act who is 

described in 8 CFR 319.2 must also 

submit a statement of intent containing 

the following information about the 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53799 

citizen spouse’s employment and future 

intent: 

* * * * * 

PART 320—CHILD BORN OUTSIDE 

THE UNITED STATES AND RESIDING 

PERMANENTLY IN THE UNITED 

STATES; REQUIREMENTS FOR 

AUTOMATIC ACQUISITION OF 

CITIZENSHIP 

■ 181. The authority citation for part 

320 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443; 8 CFR part 

2. 

■ 182. Section 320.3 is amended by: 

■ a. Revising paragraph (a); and 

■ b. Revising paragraph (b)(1) 

introductory text. 

The revisions read as follows: 

§ 320.3 How, where, and what forms and 

other documents should be filed? 

(a) Application. Individuals who are 

applying for a certificate of citizenship 

on their own behalf should submit the 

request in accordance with the form 

instructions on the form prescribed by 

USCIS for that purpose. An application 

for a certificate of citizenship under this 

section on behalf of a child who has not 

reached the age of 18 years must be 

submitted by that child’s U.S. citizen 

biological or adoptive parent(s), or legal 

guardian. 

(b) Evidence. (1) An applicant under 

this section must establish eligibility as 

described in 8 CFR 320.2. An applicant 

must submit the following supporting 

evidence unless such evidence is 

already contained in USCIS 

administrative file(s): 

* * * * * 

■ 183. Section 320.5 is revised to read 

as follows: 

§ 320.5 Decision. 

(a) Approval of application. If the 

application for the certificate of 

citizenship is approved, after the 

applicant takes the oath of allegiance 

prescribed in 8 CFR 337.1 (unless the 

oath is waived), USCIS will issue a 

certificate of citizenship. 

(b) Denial of application. If the 

decision of USCIS is to deny the 

application for a certificate of 

citizenship under this section, the 

applicant will be advised in writing of 

the reasons for denial and of the right 

to appeal in accordance with 8 CFR 

103.3(a). An applicant may file an 

appeal within 30 days of service of the 

decision in accordance with the 

instructions on the form prescribed by 

USCIS for that purpose, and with the fee 

required by 8 CFR 103.7(b)(1). 

(c) Subsequent application. After an 

application for a certificate of 

citizenship has been denied and the 

time for appeal has expired, USCIS will 

reject a subsequent application 

submitted by the same individual and 

the applicant will be instructed to 

submit a motion for reopening or 

reconsideration in accordance with 8 

CFR 103.5. The motion must be 

accompanied by the rejected application 

and the fee specified in 8 CFR 

103.7(b)(1). 

PART 322—CHILD BORN OUTSIDE 

THE UNITED STATES; 

REQUIREMENTS FOR APPLICATION 

FOR CERTIFICATE OF CITIZENSHIP 

■ 184. The authority citation for part 

322 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443; 8 CFR 

part 2. 

§ 322.1 [Amended] 

■ 185. Section 322.1 is amended, in the 

definition of ‘‘adopted child’’ by 

revising ‘‘section 101(b)(1)(E) or (F)’’ to 

read ‘‘section 101(b)(1)(E), (F) or (G)’’. 

■ 186. Section 322.2 is amended by: 

■ a. Revising the section heading; and 

by 

■ b. Adding paragraph (c) to read as 

follows: 

§ 322.2 Eligibility. 

* * * * * 

(c) Exceptions for children of military 

personnel. Pursuant to section 322(d) of 

the Act, a child of a member of the 

Armed Forces of the United States 

residing abroad is exempt from the 

temporary physical presence, lawful 

admission, and maintenance of lawful 

status requirements under 8 CFR 

322.2(a)(5), if the child: 

(1) Is authorized to accompany and 

reside abroad with the member of the 

Armed Forces pursuant to the member’s 

official orders; and 

(2) Is accompanying and residing 

abroad with the member of the Armed 

Forces. 

■ 187. Section 322.3 is amended by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (a); 

■ c. Revising paragraph (b)(1)(viii); 

■ d. Revising paragraph (b)(1)(xi); 

■ e. Revising paragraph (b)(1)(xii); 

■ f. Revising paragraph (b)(1)(xiii); and 

■ g. Revising paragraph (b)(2), the first 

sentence. 

The revisions read as follows: 

§ 322.3 Application and supporting 

documents. 

(a) Application. A U.S. citizen parent 

of an alien child (including an adopted 

child) may file an application for the 

child to become a citizen and obtain a 

certificate of citizenship under section 

322 of the Act by submitting an 

application on the form prescribed by 

USCIS in accordance with the form 

instructions and with the fee prescribed 

by 8 CFR 103.7(b)(1). If the U.S. citizen 

parent has died, the child’s U.S. citizen 

grandparent or U.S. citizen legal 

guardian may submit the application, 

provided the application is filed not 

more than 5 years after the death of the 

U.S. citizen parent. 

(b) * * * 

(1) * * * 

(viii) Evidence that the child is 

present in the United States pursuant to 

a lawful admission and is maintaining 

such lawful status, or evidence 

establishing that the child qualifies for 

an exception to these requirements as 

provided in 8 CFR 322.2(c) pursuant to 

section 322(d) of the Act. Such evidence 

may be presented at the time of 

interview when appropriate; 

* * * * * 

(xi) For adopted orphans applying 

under section 322 of the Act, a copy of 

notice of approval of the orphan petition 

and supporting documentation for such 

petition (except the home study) or 

evidence that the child has been 

admitted for lawful permanent 

residence in the United States with the 

immigrant classification of IR–3 

(Orphan adopted abroad by a U.S. 

citizen) or IR–4 (Orphan to be adopted 

by a U.S. citizen); 

(xii) For a Hague Convention adoptee 

applying under section 322 of the Act, 

a copy of the notice of approval of the 

Convention adoptee petition and its 

supporting documentation, or evidence 

that the child has been admitted for 

lawful permanent residence in the 

United States with the immigrant 

classification of IH–3 (Hague 

Convention Orphan adopted abroad by 

a U.S. citizen) or IH–4 (Hague 

Convention Orphan to be adopted by a 

U.S. citizen); and 

(xiii) Evidence of all legal name 

changes, if applicable, for the child, U.S. 

citizen parent, U.S. citizen grandparent, 

or U.S. citizen legal guardian. 

(2) If USCIS requires any additional 

documentation to make a decision on 

the application, the parents may be 

asked to provide that documentation 

under separate cover or at the time of 

interview. * * * 

■ 188. Section 322.4 is revised to read 

as follows: 

§ 322.4 Interview. 

The U.S. citizen parent and the child 

must appear in person before a USCIS 

officer for examination on the 

application under this section. If the 

U.S. citizen parent is deceased, the 


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53800 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

child’s U.S. citizen grandparent or U.S. 

citizen legal guardian who filed the 

application on the child’s behalf must 

appear. 

■ 189. Section 322.5 is revised to read 

as follows: 

§ 322.5 Decision. 

(a) Approval of application. If the 

application for certificate of citizenship 

is approved, after the applicant takes the 

oath of allegiance prescribed in 8 CFR 

337.1 (unless the oath is waived), USCIS 

will issue a certificate of citizenship. 

The child is a citizen as of the date of 

approval and administration of the oath 

of allegiance. 

(b) Denial of application. If the USCIS 

decision is to deny the application for 

a certificate of citizenship under this 

section, the applicant will be furnished 

with the reasons for denial and advised 

of the right to appeal in accordance with 

the provisions of 8 CFR 103.3(a). An 

applicant may file an appeal within 30 

days of service of the decision in 

accordance with the instructions on the 

form prescribed by USCIS for that 

purpose, and with the fee required by 8 

CFR 103.7(b)(1). 

(c) Subsequent application. After an 

application for a certificate of 

citizenship has been denied and the 

time for appeal has expired, USCIS will 

reject a subsequent application 

submitted by the same individual and 

the applicant will be instructed to 

submit a motion for reopening or 

reconsideration in accordance with 8 

CFR 103.5. The motion must be 

accompanied by the rejected application 

and the fee specified in 8 CFR 

103.7(b)(1). 

PART 324—SPECIAL CLASSES OF 

PERSONS WHO MAY BE 

NATURALIZED: WOMEN WHO HAVE 

LOST UNITED STATES CITIZENSHIP 

BY MARRIAGE AND FORMER 

CITIZENS WHOSE NATURALIZATION 

IS AUTHORIZED BY PRIVATE LAW 

■ 190. The authority citation for part 

324 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1435, 1443, 1448, 

1101 note. 

§ 324.2 [Amended] 

■ 191. In § 324.2, paragraph (b) is 

amended by revising the term ‘‘N–400, 

as required by § 316.4 of this chapter’’ 

to read ‘‘the form designated by USCIS 

in accordance with the form 

instructions and with the fee prescribed 

in 8 CFR 103.7(b)(1) as required by 

8 CFR 316.4’’. 

§ 324.3 [Amended] 

■ 192. In § 324.3, paragraph (b)(1) is 

amended by revising the phrase ‘‘an 

Application for Naturalization, form N– 

400, to USCIS’’ to read ‘‘an application 

for naturalization on the form 

prescribed by USCIS’’. 

■ 193. Section 324.5 is revised to read 

as follows: 

§ 324.5 Former citizen of the United States 

whose naturalization by taking the oath is 

authorized by a private law. 

A former citizen of the United States 

whose naturalization by taking the oath 

before any naturalization court or office 

of USCIS within the United States is 

authorized by a private law must submit 

an application on the form specified by 

USCIS, without fee, in accordance with 

the form instructions. 

PART 325—NATIONALS BUT NOT 

CITIZENS OF THE UNITED STATES; 

RESIDENCE WITHIN OUTLYING 

POSSESSIONS 

■ 194. The authority citation for part 

325 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1436, 1443. 

§ 325.4 [Amended] 

■ 195. In § 325.4, paragraph (b)(3) is 

amended by revising the term ‘‘Service 

district in the United States where the 

application is filed’’ to read ‘‘Service 

district, as defined in 8 CFR 316.1,’’. 

PART 328—SPECIAL CLASSES OF 

PERSONS WHO MAY BE 

NATURALIZED: PERSONS WITH 1 

YEAR OF SERVICE IN THE UNITED 

STATES ARMED FORCES 

■ 196. The authority citation for part 

328 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1439, 1443. 

■ 197. Section 328.4 is revised to read 

as follows: 

§ 328.4 Application and evidence. 

(a) Application. An applicant for 

naturalization under section 328 of the 

Act must submit an application on the 

form prescribed by USCIS in accordance 

with the form instructions and as 

provided in 8 CFR 316.4. 

(b) Evidence. The applicant’s 

eligibility for naturalization under 8 

CFR 328.2(a) or (b) will be established 

only by the certification of honorable 

service by the executive department 

under which the applicant served or is 

serving. 

PART 329—SPECIAL CLASSES OF 

PERSONS WHO MAY BE 

NATURALIZED: PERSONS WITH 

ACTIVE DUTY OR CERTAIN READY 

RESERVE SERVICE IN THE UNITED 

STATES ARMED FORCES DURING 

SPECIFIED PERIODS OF HOSTILITIES 

■ 198. The authority citation for part 

329 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1440, 1443; 

8 CFR part 2. 

■ 199. Revise § 329.4 to read as follows: 

§ 329.4 Application and evidence. 

(a) Application. An applicant for 

naturalization under section 329 of the 

Act must submit an application on the 

form prescribed by USCIS in accordance 

with the form instructions and as 

provided in 8 CFR 316.4. 

(b) Evidence. The applicant’s 

eligibility for naturalization under 8 

CFR 329.2(a), (b), or (c)(2) will be 

established only by a certification of 

honorable service by the executive 

department under which the applicant 

served or is serving. 

§ 329.5 [Removed] 

■ 200. Section 329.5 is removed. 

PART 330—SPECIAL CLASSES OF 

PERSONS WHO MAY BE 

NATURALIZED: SEAMEN 

■ 201. The authority citation for part 

330 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443. 

§ 330.2 [Amended] 

■ 202. In § 330.2, paragraph (a) is 

amended by revising the phrase 

‘‘Application for Naturalization, Form 

N–400.’’ to read ‘‘application on the 

form designated by USCIS.’’. 

PART 332—NATURALIZATION 

ADMINISTRATION 

■ 203. The authority citation for part 

332 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443, 1447. 

■ 204. Section 332.1 is revised to read 

as follows: 

§ 332.1 Designation of USCIS employees 

to administer oaths and conduct 

examinations and hearings. 

(a) Examinations. All USCIS officers 

are hereby designated to conduct the 

examination for naturalization required 

under section 335 of the Act, provided 

that each officer so designated has 

received appropriate training. 

(b) Hearings. Section 336 of the Act 

authorizes USCIS officers who are 

designated under paragraph (a) of this 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53801 

section to conduct hearings under that 

section. 

(c) Depositions. All USCIS officers 

who are designated under paragraph (a) 

of this section are hereby designated to 

take depositions in matters relating to 

the administration of naturalization and 

citizenship laws. 

(d) Oaths and affirmations. All USCIS 

officers who are designated under 

paragraph (a) of this section are hereby 

designated to administer oaths or 

affirmations except for the oath of 

allegiance as provided in 8 CFR 337.2. 

§§ 332.2, 332.3, and 332.4 [Removed 

and Reserved] 

■ 205. Sections 332.2, 332.3, and 332.4 

are removed and reserved. 

PART 333—PHOTOGRAPHS 

■ 206. The authority citation for part 

333 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443. 

■ 207. In § 333.1, paragraph (a) is 

revised to read as follows: 

§ 333.1 Description of required 

photographs. 

(a) Every applicant who is required to 

provide photographs under section 333 

of the Act must do so as prescribed by 

USCIS in its form instructions. 

* * * * * 

■ 208. Section 333.2 is revised to read 

as follows: 

§ 333.2 Attachment of photographs to 

documents. 

A photograph of the applicant must 

be securely and permanently attached to 

each certificate of naturalization or 

citizenship, or to any other document 

that requires a photograph, in a manner 

prescribed by USCIS. 

PART 334—APPLICATION FOR 

NATURALIZATION 

■ 209. The authority citation for part 

334 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443. 

■ 210. In § 334.2, paragraph (a) is 

revised to read as follows: 

§ 334.2 Application for naturalization. 

(a) An applicant may file an 

application for naturalization with 

required initial evidence in accordance 

with the general form instructions for 

naturalization. The applicant must 

include the fee as required in 8 CFR 

103.7(b)(1). 

* * * * * 

■ 211. Section 334.11 is amended by: 

■ a. Revising the term ‘‘Form N–300’’ to 

read ‘‘the form specified by USCIS, in 

accordance with the form instructions’’ 

in paragraph (a); and by 

■ b. Revising paragraph (b). 

The revision reads as follows: 

§ 334.11 Declaration of intention. 

* * * * * 

(b) Approval. If approved, USCIS will 

retain the application in the file and 

advise the applicant of the action taken. 

* * * * * 

§§ 334.16–334.18 [Removed] 

■ 212. Sections 334.16 through 334.18 

are removed. 

PART 335—EXAMINATION ON 

APPLICATION FOR NATURALIZATION 

■ 213. The authority citation for part 

335 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443, 1447. 

■ 214. Section 335.2 is amended by: 

■ a. Revising the term ‘‘Service’’ to read 

‘‘USCIS’’ and the term ‘‘§ 332.1 of this 

chapter’’ to read ‘‘8 CFR 332.1’’ in 

paragraph (a); 

■ b. Revising the terms ‘‘The Service’’ 

and ‘‘Service’’ to read ‘‘USCIS’’ 

wherever that term appears in paragraph 

(b) introductory text; 

■ c. Revising paragraph (b)(3); 

■ d. Revising the terms ‘‘the Service 

officer’’, ‘‘The Service officer’’ and ‘‘the 

Service’’ to read ‘‘USCIS’’ wherever the 

terms appear in paragraph (c); 

■ e. Revising paragraph (d)(2); 

■ f. Revising the term ‘‘Service’’ to read 

‘‘USCIS’’ wherever the term appears in 

paragraph (e); and 

■ g. Revising the term ‘‘Service’’ to read 

‘‘USCIS’’ and the term ‘‘§ 312.4 of this 

chapter’’ to read ‘‘8 CFR 312.4’’ 

wherever the terms appear in paragraph 

(f). 

The revisions read as follows: 

§ 335.2 Examination of applicant. 

* * * * * 

(b) * * * 

(3) Confirmation from the Federal 

Bureau of Investigation that the 

fingerprint data submitted for the 

criminal background check has been 

rejected. 

* * * * * 

(d) * * * 

(2) Service of subpoenas. Subpoenas 

will be issued on the form designated by 

USCIS and a record will be made of 

service. The subpoena may be served by 

any person over 18 years of age, not a 

party to the case, designated to make 

such service by USCIS. 

* * * * * 

§ 335.3 [Amended] 

■ 215. Section 335.3 is amended by 

revising the terms ‘‘The Service officer’’ 

and ‘‘the Service officer’’ to read 

‘‘USCIS’’ wherever the terms appear in 

the following places: 

■ a. Paragraph (a); and 

■ b. Paragraph (b). 

§ 335.4 [Amended] 

■ 216. Section 335.4 is amended by 

revising the phrase ‘‘the Service officer 

designated in § 332.1 of this chapter’’ to 

read ‘‘the USCIS officer described in 

8 CFR 332.1’’. 

§ 335.5 [Amended] 

■ 217. Section 335.5 is amended by 

revising the terms ‘‘the Service’’ and 

‘‘The Service’’ to read ‘‘USCIS’’ 

wherever the terms appear. 

■ 218. Section 335.6 is amended by 

revising the term ‘‘the Service’’ to read 

‘‘USCIS’’ wherever the term appears in 

the following places: 

■ a. Paragraph (a); 

■ b. Paragraph (b); and 

■ c. Paragraph (c). 

■ 219. Section 335.7 is revised to read 

as follows: 

§ 335.7 Failure to prosecute application 

after initial examination. 

An applicant for naturalization who 

has appeared for the examination on his 

or her application as provided in 8 CFR 

335.2 will be considered as failing to 

prosecute such application if he or she, 

without good cause being shown, either 

failed to excuse an absence from a 

subsequently required appearance, or 

fails to provide within a reasonable 

period of time such documents, 

information, or testimony deemed by 

USCIS to be necessary to establish his 

or her eligibility for naturalization. 

USCIS will deliver notice of requests for 

appearance or evidence as provided in 

8 CFR 103.8. In the event that the 

applicant fails to respond within 30 

days of the date of notification, USCIS 

will adjudicate the application on the 

merits pursuant to 8 CFR 336.1. 

§ 335.9 [Amended] 

■ 220. Section 335.9 is amended by: 

■ a. Revising the phrase ‘‘Service office 

to the Service office’’ to read ‘‘USCIS 

office to the USCIS office’’ in paragraph 

(a); and 

■ b. Revising the term ‘‘district director’’ 

to read ‘‘USCIS’’ and the term ‘the 

Service’s’’ to read ‘‘USCIS’’’ in 

paragraph (b). 

§ 335.10 [Amended] 

■ 221. Section 335.10 is amended by 

revising the terms ‘‘the Service’’ and 

‘‘the district director’’ to read ‘‘USCIS’’ 

wherever the terms appear. 


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§§ 335.11 through 335.13 [Removed] 

■ 222. Sections 335.11 through 335.13 

are removed. 

PART 336—HEARINGS ON DENIALS 

OF APPLICATIONS FOR 

NATURALIZATION 

■ 223. The authority citation for section 

336 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443, 1447, 

1448. 

§ 336.1 [Amended] 

■ 224. Section 336.1 is amended by: 

■ a. Revising the phrase ‘‘the Service 

shall’’ to read ‘‘USCIS will’’ in the first 

sentence in paragraph (a); and 

■ b. Revising the phrase ‘‘may be made 

in person or by certified mail to the 

applicant’s last known address’’ to read 

‘‘must be by personal service as 

described in 8 CFR 103.8’’ in paragraph 

(c). 

■ 225. Section 336.2 is revised to read 

as follows: 

§ 336.2 USCIS hearing. 

(a) The applicant, or his or her 

authorized representative, may request a 

hearing on the denial of the applicant’s 

application for naturalization by filing a 

request with USCIS within thirty days 

after the applicant receives the notice of 

denial. 

(b) Upon receipt of a timely request 

for a hearing, USCIS will schedule a 

review hearing, within a reasonable 

period of time not to exceed 180 days 

from the date upon which the appeal is 

filed. The review will be with an officer 

other than the officer who conducted 

the original examination or who 

rendered determination upon which the 

hearing is based, and who is classified 

at a grade level equal to or higher than 

the grade of the examining officer. The 

reviewing officer will have the authority 

and discretion to review the application 

for naturalization, to examine the 

applicant, and either to affirm the 

findings and determination of the 

original examining officer or to redetermine the original decision in 

whole or in part. The reviewing officer 

will also have the discretion to review 

any administrative record which was 

created as part of the examination 

procedures as well USCIS files and 

reports. He or she may receive new 

evidence or take such additional 

testimony as may be deemed relevant to 

the applicant’s eligibility for 

naturalization or which the applicant 

seeks to provide. Based upon the 

complexity of the issues to be reviewed 

or determined, and upon the necessity 

of conducting further examinations with 

respect to essential naturalization 

requirements, such as literacy or civics 

knowledge, the reviewing immigration 

officer may, in his or her discretion, 

conduct a full de novo hearing or may 

utilize a less formal review procedure, 

as he or she deems reasonable and in 

the interest of justice. 

(c) Improperly filed request for 

hearing. (1) Request for hearing filed by 

a person or entity not entitled to file. (i) 

Rejection without refund of filing fee. A 

request for hearing filed by a person or 

entity who is not entitled to file such a 

request must be rejected as improperly 

filed. In such a case, any filing fee will 

not be refunded. 

(ii) Request for hearing by attorney or 

representative without proper Form G– 

28. If a request for hearing is filed by an 

attorney or representative who has not 

properly filed a notice of entry of 

appearance as attorney or representative 

entitling that person to file the request 

for hearing, the appeal will be 

considered as improperly filed. In such 

a case, any filing fee will not be 

refunded regardless of the action taken. 

The reviewing official will ask the 

attorney or representative to submit a 

proper notice of entry within 15 days of 

the request. If such notice is not 

submitted within the time allowed, the 

official may, on his or her own motion, 

under 8 CFR 103.5(a)(5)(i), make a new 

decision favorable to the affected party 

without notifying the attorney or 

representative. The request for hearing 

may be considered properly filed as of 

its original filing date if the attorney or 

representative submits a properly 

executed notice entitling that person to 

file the request for hearing. 

(2) Untimely request for hearing. (i) 

Rejection without refund of filing fee. A 

request for hearing which is not filed 

within the time period allowed must be 

rejected as improperly filed. In such a 

case, any filing fee will not be refunded. 

(ii) Untimely request for hearing 

treated as motion. If an untimely request 

for hearing meets the requirements of a 

motion to reopen as described in 8 CFR 

103.5(a)(2) or a motion to reconsider as 

described in 8 CFR 103.5(a)(3), the 

request for hearing must be treated as a 

motion and a decision must be made on 

the merits of the case. 

■ 226. Section 336.9 is amended by: 

■ a. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in paragraph (a); 

■ b. Revising paragraph (b); and 

■ c. Revising the term ‘‘Service’’ to read 

‘‘USCIS’’ in paragraph (d). 

The revision reads as follows: 

* * * * * 

(b) Filing a petition. Under these 

procedures, an applicant must file a 

petition for review in the United States 

District Court having jurisdiction over 

his or her place of residence, in 

accordance with Chapter 7 of Title 5, 

United States Code, within a period of 

not more than 120 days after the USCIS 

final determination. The petition for 

review must be brought against USCIS, 

and service of the petition for review 

must be made upon DHS and upon the 

USCIS office where the hearing was 

held pursuant to 8 CFR 336.2. 

* * * * * 

PART 337—OATH OF ALLEGIANCE 

■ 227. The authority citation for part 

337 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443, 1448; 8 

CFR Part 2. 

■ 228. Section 337.2 is revised to read 

as follows: 

§ 337.2 Oath administered by USCIS or 

EOIR. 

(a) Public ceremony. An applicant for 

naturalization who has elected to have 

his or her oath of allegiance 

administered by USCIS or an 

immigration judge and is not subject to 

the exclusive oath administration 

authority of an eligible court pursuant to 

section 310(b) of the Act must appear in 

person in a public ceremony, unless 

such appearance is specifically excused 

under the terms and conditions set forth 

in this part. Such ceremony will be held 

at a time and place designated by USCIS 

or EOIR within the United States (or 

abroad as permitted for certain 

applicants in accordance with 8 U.S.C. 

1443a) and within the jurisdiction 

where the application for naturalization 

was filed, or into which the application 

for naturalization was transferred 

pursuant to 8 CFR 335.9. Naturalization 

ceremonies will be conducted at regular 

intervals as frequently as necessary to 

ensure timely naturalization, but in all 

events at least once monthly where it is 

required to minimize unreasonable 

delays. Naturalization ceremonies will 

be presented in such a manner as to 

preserve the dignity and significance of 

the occasion. 

(b) Authority to administer oath of 

allegiance. The Secretary may delegate 

authority to administer the oath of 

allegiance prescribed in section 337 of 

the Act to such officials of DHS and to 

immigration judges or officials 

designated by the Attorney General as 

may be necessary for the efficient 

administration of the naturalization 

program. 

(c) Execution of questionnaire. 

Immediately prior to being administered 

the oath of allegiance, each applicant 

must complete the questionnaire on the 


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Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 53803 

form designated by USCIS. USCIS will 

review each completed questionnaire 

and may further question the applicant 

regarding the responses provided. If 

derogatory information is revealed, 

USCIS will remove the applicant’s name 

from the list of eligible persons as 

provided in 8 CFR 335.5 and he or she 

will not be administered the oath. 

§ 337.3 [Amended] 

■ 229. Section 337.3 is amended by 

revising the terms ‘‘the Service’’ and 

‘‘the district director’’ to read ‘‘USCIS’’ 

whenever the terms appear in the 

following places: 

■ a. Paragraph (a) introductory text; 

■ b. Paragraph (a)(4); 

■ c. Paragraph (b); and 

■ d. Paragraph (c). 

§ 337.7 [Amended] 

■ 230. Section 337.7 is amended by 

revising the terms ‘‘the Service’’ and 

‘‘Service’’ to read ‘‘USCIS’’ whenever 

the terms appear in the following 

places: 

■ a. Paragraph (a); and 

■ b. Paragraph (b). 

■ 231. Section 337.8 is revised to read 

as follows: 

§ 337.8 Oath administered by the courts. 

(a) Notification of election. An 

applicant for naturalization not subject 

to the exclusive jurisdiction of 8 CFR 

310.2(d) must notify USCIS at the time 

of the filing of, or no later than at the 

examination on, the application of his 

or her election to have the oath of 

allegiance administered in an 

appropriate court having jurisdiction 

over the applicant’s place of residence. 

(b) Certificate of eligibility. (1) 

Exclusive jurisdiction. In those 

instances falling within the exclusive 

jurisdiction provision of section 

310(b)(1)(B) of the Act, USCIS will 

notify the court of the applicant’s 

eligibility for admission to United States 

citizenship by notifying the clerk of the 

court within 10 days of the approval of 

the application. 

(2) Non-exclusive jurisdiction. In 

those instances in which the applicant 

has elected to have the oath 

administered in a court ceremony, 

USCIS will notify the clerk of the court 

in writing that the applicant has been 

determined by the USCIS to be eligible 

for admission to United States 

citizenship upon taking the requisite 

oath of allegiance and renunciation in a 

public ceremony. If a scheduled hearing 

date is not available at the time of 

notification, USCIS will notify the 

applicant in writing that the applicant 

has been approved but no ceremony 

date is yet available. 

(c) Preparation of lists. (1) At or prior 

to the oath administration ceremony, 

the representative attending the 

ceremony will submit to the court, in 

duplicate, lists of persons to be 

administered the oath of allegiance and 

renunciation. After the ceremony, and 

after any required amendments and 

notations have been made to the lists, 

the clerk of the court will sign the lists. 

(2) The originals of all court lists 

specified in this section will be filed 

permanently in the court, and the 

duplicates returned by the clerk of the 

court to USCIS. The same disposition 

will be made of any list presented to, 

but not approved by, the court. 

(d) Personal representation of the 

government at oath administration 

ceremonies. An oath administration 

ceremony must be attended by a 

representative of USCIS who will 

review each completed questionnaire 

and may further question the applicant 

regarding the responses provided. If 

derogatory information is revealed, the 

USCIS representative will remove the 

applicant’s name from the list of eligible 

persons as provided in 8 CFR 335.5 and 

the court will not administer the oath to 

such applicant. 

(e) Written report in lieu of personal 

representation. If it is impractical for a 

USCIS representative to be present at a 

judicial oath administration ceremony, 

written notice of that fact will be given 

by the USCIS to the court. The list of 

persons to be administered the oath of 

allegiance and renunciation, forms, 

memoranda, and certificates will be 

transmitted to the clerk of the court, 

who will submit the appropriate lists to 

the court. 

(f) Withdrawal from court. An 

applicant for naturalization not subject 

to the exclusive jurisdiction of 8 CFR 

310.3(d) who has elected to have the 

oath administered in a court oath 

ceremony may, for good cause shown, 

request that his or her name be removed 

from the list of persons eligible to be 

administered the oath at a court oath 

ceremony and request that the oath be 

administered by an immigration judge 

or USCIS. Such request must be in 

writing to the USCIS office which 

granted the application and must cite 

the reasons for the request. USCIS will 

consider the good cause shown and the 

best interests of the applicant in making 

a decision. If it is determined that the 

applicant will be permitted to withdraw 

his or her name from the court 

ceremony, USCIS will give written 

notice to the court of the applicant’s 

withdrawal, and the applicant will be 

scheduled for the next available oath 

ceremony, conducted by an Immigration 

Judge or USCIS, as if he or she had 

never elected the court ceremony. 

§ 337.9 [Amended] 

■ 232. In § 337.9, paragraph (a) is 

amended by removing the phrase ‘‘, 

administered either by the Service or an 

immigration judge’’. 

PART 338—CERTIFICATE OF 

NATURALIZATION 

■ 233. The authority citation for part 

338 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443; 8 CFR 

part 2. 

■ 234. Section 338.1 is revised to read 

as follows: 

§ 338.1 Execution and issuance of 

certificate. 

(a) Issuance. When an applicant for 

naturalization has taken and subscribed 

to the oath of allegiance in accordance 

with 8 CFR part 337, USCIS will issue 

a Certificate of Naturalization at the 

conclusion of the oath administration 

ceremony. 

(b) Contents of certificate. The 

certificate must be issued to the 

applicant in accordance with section 

338 of the Act in his or her true, full, 

and correct name as it exists at the time 

of the administration of the oath of 

allegiance. The certificate must show, 

under ‘‘country of former nationality,’’ 

the name of the applicant’s last country 

of citizenship, as shown in the 

application and USCIS records, even 

though the applicant may be stateless at 

the time of admission to citizenship. 

§ 338.3 [Amended] 

■ 235. Section 338.3 is amended by 

revising the terms ‘‘the Service’’ and the 

term ‘‘the district director’’ to read 

‘‘USCIS’’. 

■ 236. Section 338.5 is revised to read 

as follows: 

§ 338.5 Correction of certificates. 

(a) Application. Whenever a 

Certificate of Naturalization has been 

delivered which does not conform to the 

facts shown on the application for 

naturalization, or a clerical error was 

made in preparing the certificate, an 

application for issuance of a corrected 

certificate may be filed, without fee, in 

accordance with the form instructions. 

(b) Court-issued certificates. If the 

certificate was originally issued by a 

clerk of court under a prior statute and 

USCIS finds that a correction is justified 

and can be made without mutilating the 

certificate, USCIS will authorize the 

issuing court to make the necessary 

correction and to place a dated 

endorsement of the court on the reverse 


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53804 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

of the certificate explaining the 

correction. The authorization will be 

filed with the naturalization record of 

the court, the corrected certificate will 

be returned to the naturalized person, 

and the duplicate will be endorsed to 

show the date and nature of the 

correction and endorsement made, and 

then returned to USCIS. No fee will be 

charged the naturalized person for the 

correction. 

(c) USCIS-issued certificates. If the 

certificate was originally issued by 

USCIS (or its predecessor agency), and 

USCIS finds that a correction was 

justified, the correction shall be made to 

the certificate and a dated endorsement 

made on the reverse of the certificate. 

(d) Administrative actions. When a 

correction made pursuant to paragraphs 

(b) or (c) of this section would or does 

result in mutilation of a certificate, 

USCIS will issue a replacement 

Certificate of Naturalization and destroy 

the surrendered certificate. 

(e) Data change. The correction will 

not be deemed to be justified where the 

naturalized person later alleges that the 

name or date of birth which the 

applicant stated to be his or her correct 

name or date of birth at the time of 

naturalization was not in fact his or her 

name or date of birth at the time of the 

naturalization. 

§§ 338.11 through 338.13 [Removed and 

Reserved] 

■ 237. Sections 338.11 through 338.13 

are removed and reserved. 

PART 339—FUNCTIONS AND DUTIES 

OF CLERKS OF COURT REGARDING 

NATURALIZATION PROCEEDINGS 

■ 238. The authority citation for part 

339 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443, 1448. 

§ 339.1 [Amended] 

■ 239. Section 339.1 is amended by 

revising the phrase ‘‘the Service 

pursuant to § 338.1 of this chapter’’ to 

read ‘‘USCIS in accordance with 8 CFR 

338.1’’. 

■ 240. Section 339.2 is revised to read 

as follows: 

§ 339.2 Monthly reports. 

(a) Oath administration ceremonies. 

Clerks of court will on the first day of 

each month or immediately following 

each oath ceremony submit to USCIS a 

report listing all oath administration 

ceremonies held and the total number of 

persons issued the oath at each 

ceremony, in accordance with USCIS 

instructions. The report will include a 

list of persons attending naturalization 

oath ceremonies during the month, and 

certified copies of any court orders 

granting changes of name. 

(b) Petitions filed for de novo 

hearings. The clerk of court must submit 

to USCIS a monthly report of all persons 

who have filed de novo review petitions 

before the court. The report shall 

include each petitioner’s name, alien 

registration number, date of filing of the 

petition for a de novo review, and, once 

an order has been entered, the 

disposition. 

(c) Other proceedings and orders. The 

clerk of court must forward to USCIS 

copies of the records of such other 

proceedings and other orders instituted 

on or issued by the court affecting or 

relating to the naturalization of any 

person as may be required from time to 

time. 

(d) Use of reports for accounting 

purposes. State and federal courts may 

use the reports as a monthly billing 

document, submitted to USCIS for 

reimbursement in accordance with 

section 344(f)(1) of the Act. USCIS will 

use the information submitted to 

calculate costs incurred by courts in 

performing their naturalization 

functions. State and federal courts will 

be reimbursed pursuant to terms set 

forth in annual agreements entered into 

between DHS and the Administrative 

Office of United States Courts. 

PART 340—REVOCATION OF 

NATURALIZATION 

■ 241. The authority citation for part 

340 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443. 

§ 340.1 [Removed and reserved] 

■ 242. Section 340.1 is removed and 

reserved. 

■ 243. Section 340.2 is revised to read 

as follows: 

§ 340.2 Revocation proceedings pursuant 

to section 340(a) of the Act. 

(a) Recommendations for institution 

of revocation proceedings. Whenever it 

appears that any grant of naturalization 

may have been illegally procured or 

procured by concealment of a material 

fact or by willful misrepresentation, and 

a prima facie case exists for revocation 

pursuant to section 340(a) of the Act, 

USCIS will make a recommendation 

regarding revocation. 

(b) Recommendation for criminal 

prosecution. If it appears to USCIS that 

a case described in paragraph (a) of this 

section is amenable to criminal 

penalties under 18 U.S.C. 1425 for 

unlawful procurement of citizenship or 

naturalization, the facts will be reported 

to the appropriate United States 

Attorney for possible criminal 

prosecution. 

PART 341—CERTIFICATES OF 

CITIZENSHIP 

■ 244. The authority citation for part 

341 continues to read as follows: 

Authority: Pub. L. 82–414, 66 Stat. 173, 

238, 254, 264, as amended; 8 U.S.C. 1103, 

1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR 

part 2. 

■ 245. Section 341.1 is revised to read 

as follows: 

§ 341.1 Application. 

An application for a certificate of 

citizenship by or in behalf of a person 

who claims to have acquired United 

States citizenship under section 309(c) 

of the Act or to have acquired or derived 

United States citizenship as specified in 

section 341 of the Act must be 

submitted on the form designated by 

USCIS with the fee specified in 8 CFR 

103.7(b)(1) and in accordance with the 

instructions on the form. 

■ 246. Section 341.2 is amended by: 

■ a. Revising paragraph (a)(1) 

introductory text; 

■ b. Revising the phrase ‘‘at the district 

director’s option’’ to read ‘‘at the 

discretion of USCIS’’ in paragraph 

(b)(1); 

■ c. Revising the phrase ‘‘A district 

director shall assign an officer of the 

Service to’’ to read ‘‘USCIS will’’ in the 

first sentence in paragraph (d); 

■ d. Removing the phrase ‘‘to the 

district director’’ in the last sentence in 

paragraph (d); and 

■ e. Removing paragraph (g). 

The revision reads as follows: 

§ 341.2 Examination upon application. 

(a) * * * 

(1) When testimony may be omitted. 

An application may be processed 

without interview if the USCIS officer 

adjudicating the case has in the 

administrative file(s) all the required 

documentation necessary to establish 

the applicant’s eligibility for U.S. 

citizenship, or if the application is 

accompanied by one of the following: 

* * * * * 

§ 341.3 [Amended] 

■ 247. Section 341.3 is amended by 

revising the phrase ‘‘an officer of the 

Service or a United States consular 

official’’ to read ‘‘a DHS or Department 

of State official’’. 

■ 248. Section 341.5 is revised to read 

as follows: 

§ 341.5 Decision. 

(a) Adjudication. USCIS may 

adjudicate the application only after the 


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appropriate approving official has 

reviewed the report, findings, 

recommendation, and endorsement of 

the USCIS officer assigned to adjudicate 

the application. 

(b) Approval. If the application is 

granted, USCIS will prepare a certificate 

of citizenship and, unless the claimant 

is unable by reason of mental incapacity 

or young age to understand the meaning 

of the oath, he or she must take and 

subscribe to the oath of renunciation 

and allegiance prescribed by 8 CFR 337 

before USCIS within the United States. 

Except as provided in paragraph (c), 

delivery of the certificate in accordance 

with 8 CFR 103.2(b)(19) and 8 CFR 

103.8 must be made in the United States 

to the claimant or the acting parent or 

guardian. 

(c) Approval pursuant to section 

322(d) of the Act. Persons eligible for 

naturalization pursuant to section 

322(d) of the Act may subscribe to the 

oath of renunciation and allegiance and 

may be issued a certificate of citizenship 

outside of the United States, in 

accordance with 8 U.S.C. 1443a. 

(d) Denial. If USCIS denies the 

application, the applicant will be 

furnished the reasons for denial and 

advised of the right to appeal in 

accordance with 8 CFR 103.3. 

(e) Subsequent application. After an 

application for a certificate of 

citizenship has been denied and the 

time for appeal has expired, USCIS will 

reject a subsequent application 

submitted by the same individual and 

the applicant will be instructed to 

submit a motion to reopen or reconsider 

in accordance with 8 CFR 103.5. The 

motion must be accompanied by the 

rejected application and the fee 

specified in 8 CFR 103.7. 

§§ 341.6 and 341.7 [Removed] 

■ 249. Sections 341.6 and 341.7 are 

removed. 

PART 342—ADMINISTRATIVE 

CANCELLATION OF CERTIFICATES, 

DOCUMENTS OR RECORDS 

■ 250. The authority citation for part 

342 is revised to read as follows: 

Authority: 8 U.S.C. 1103, 1453. 

■ 251. Section 342.2 is revised to read 

as follows: 

§ 342.2 Service of notice. 

The notice required by 8 CFR 342.1 

must be by personal service as described 

in 8 CFR 103.8(a)(2). 

PART 343—CERTIFICATE OF 

NATURALIZATION OR 

REPATRIATION; PERSONS WHO 

RESUMED CITIZENSHIP UNDER 

SECTION 323 OF THE NATIONALITY 

ACT OF 1940, AS AMENDED, OR 

SECTION 4 OF THE ACT OF JUNE 29, 

1906 

■ 252. The authority citation for part 

343 is revised to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1443, 1454, 

and 1455. 

§ 343.1 [Amended] 

■ 253. Section 343.1 is amended in the 

first sentence by revising the term 

‘‘therefor on Form N–580’’ to read: ‘‘in 

accordance with USCIS instructions’’. 

PART 343a—NATURALIZATION AND 

CITIZENSHIP PAPERS LOST, 

MUTILATED, OR DESTROYED; NEW 

CERTIFICATE IN CHANGED NAME; 

CERTIFIED COPY OF REPATRIATION 

PROCEEDINGS 

■ 254. The authority citation for part 

343a is revised to read as follows: 

Authority: 8 U.S.C. 1101 note, 1103, 1435, 

1443, 1454, and 1455. 

■ 255. Section 343a.1 is amended by: 

■ a. Revising the phrase ‘‘shall apply on 

Form N–565 for a new paper in lieu 

thereof’’ to read ‘‘must apply on the 

form designated by USCIS with the fee 

specified in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions’’ 

in paragraph (a); 

■ b. Revising the phrase ‘‘shall apply on 

Form N–565’’ to read ‘‘must apply’’ in 

paragraph (b); and 

■ c. Revising paragraph (c). 

The revision reads as follows: 

§ 343a.1 Application for replacement of or 

new papers relating to naturalization, 

citizenship, or repatriation. 

* * * * * 

(c) Adjudication and disposition. (1) 

Interview. The applicant shall only be 

required to appear in person for 

interview under oath or affirmation in 

specific cases. Those cases which 

necessitate an interview enabling an 

officer to properly adjudicate the 

application at the office having 

jurisdiction will be determined by 

USCIS. 

(2) Approval. If an application for a 

new certificate of naturalization, 

citizenship, or repatriation or a new 

declaration of intention is approved, the 

new certificate or declaration will be 

issued and delivered by personal service 

in accordance with 8 CFR 103.8(a)(2). If 

an application for a new certified copy 

of the proceedings under the Act of June 

25, 1936, as amended, or under section 

317(b) of the Nationality Act of 1940, or 

under section 324(c) of the Immigration 

and Nationality Act, or under the 

provisions of any private law is 

approved, a certified photocopy of the 

record of the proceedings will be issued. 

If, subsequent to naturalization or 

repatriation, the applicant’s name was 

changed by marriage, the certification of 

the photocopy will show both the name 

in which the proceedings were 

conducted and the changed name. The 

new certified copy will be delivered to 

the applicant in accordance with 8 CFR 

103.8(a)(2). 

(3) Denial. If the application is 

denied, the applicant shall be notified of 

the reasons for the denial and of the 

right to appeal in accordance with 8 

CFR 103.3. 

§ 343a.2 [Amended] 

■ 256. Section 343a.2 is amended by 

revising the terms ‘‘Service’’ and ‘‘the 

Service’’ to read ‘‘USCIS’’ and the term 

‘‘Form N–565’’ to read ‘‘an application’’ 

wherever those terms appear. 

PART 343b—SPECIAL CERTIFICATE 

OF NATURALIZATION FOR 

RECOGNITION BY A FOREIGN STATE 

■ 257. The authority citation for part 

343b continues to read as follows: 

Authority: 8 U.S.C. 1103, 1443, 1454, 1455. 

§ 343b.1 [Amended] 

■ 258. Section 343b.1 is amended by 

revising the term ‘‘Form N–565’’ to read 

‘‘the form designated by USCIS with the 

fee specified in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions’’. 

■ 259. Section 343b.3 is revised to read 

as follows: 

§ 343b.3 Interview. 

When the application presents a 

prima facie case, USCIS may issue a 

certificate without first interviewing the 

applicant. In all other cases, the 

applicant must be interviewed. The 

interviewing officer must provide a 

complete written report of the interview 

before forwarding the application for 

issuance of the certificate. 

■ 260. Section 343b.4 is revised to read 

as follows: 

§ 343b.4 Applicant outside of United 

States. 

If the application is received by a DHS 

office outside the United States, an 

officer will, when practicable, interview 

the applicant before the application is 

forwarded to USCIS for issuance of the 

certificate. When an interview is not 

practicable, or is not conducted because 

the application is submitted directly to 

USCIS in the United States, the 


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53806 Federal Register / Vol. 76, No. 167 / Monday, August 29, 2011 / Rules and Regulations 

certificate may nevertheless be issued 

and the recommendation conditioned 

upon satisfactory interview by the 

Department of State. When forwarding 

the certificate in such a case, USCIS will 

inform the Secretary of State that the 

applicant has not been interviewed, and 

request to have the applicant 

interviewed regarding identity and 

possible expatriation. If identity is not 

established or if expatriation has 

occurred, the Department of State will 

return the certificate to USCIS for 

disposition. 

■ 261. Section 343b.11 is revised to read 

as follows: 

§ 343b.11 Disposition of application. 

(a) Approval. If the application is 

granted, USCIS will prepare a special 

certificate of naturalization and forward 

it to the Secretary of State for 

transmission to the proper authority of 

the foreign state in accordance with 

procedures agreed to between DHS and 

the Department of State, retain the 

application and a record of the 

disposition in the DHS file, and notify 

the applicant of the actions taken. 

(b) Denial. If the application is 

denied, the applicant will be notified of 

the reasons for denial and of the right 

to appeal in accordance with 8 CFR 

103.3. 

PART 343c—CERTIFICATIONS FROM 

RECORDS 

■ 262. The authority citation for part 

343c is revised to read as follows: 

Authority: 5 U.S.C. 552; 8 U.S.C. 1103. 

§ 343c.1 [Amended] 

■ 263. Section 343c.1 is amended by 

revising the term ‘‘Form G–641’’ to read 

‘‘the form designated by USCIS in 

accordance with the form instructions’’. 

PART 392—SPECIAL CLASSES OF 

PERSONS WHO MAY BE 

NATURALIZED: PERSONS WHO DIE 

WHILE SERVING ON ACTIVE DUTY 

WITH THE UNITED STATES ARMED 

FORCES DURING CERTAIN PERIODS 

OF HOSTILITIES 

■ 264. The authority citation for part 

392 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1440 and note, 

and 1440–1; 8 CFR part 2. 

■ 265. In § 392.2, paragraph (d)(2) is 

revised to read as follows: 

§ 392.2 Eligibility for posthumous 

citizenship. 

* * * * * 

(d) * * * 

(2) The certification required by 

section 329A(c)(2) of the Act to prove 

military service and service-connected 

death must be requested by the 

applicant on the form designated by 

USCIS in accordance with the form 

instructions. The form will also be used 

to verify the decedent’s place of 

induction, enlistment, or reenlistment. 

■ 266. Section 392.3 is amended by: 

■ a. Revising the term ‘‘the Service’’ to 

read ‘‘USCIS’’ in the last sentence in 

paragraph (a)(2); 

■ b. Revising paragraph (b); and 

■ c. Revising paragraph (c). 

The revisions read as follows: 

§ 392.3 Application for posthumous 

citizenship. 

* * * * * 

(b) Application. An application for 

posthumous citizenship must be 

submitted on the form designated by 

USCIS in accordance with the form 

instructions. 

(c) Application period. An application 

for posthumous citizenship must be 

filed no later than two years after the 

date of the decedent’s death. 

* * * * * 

■ 267. In § 392.4, paragraphs (a) and (e) 

are revised to read as follows: 

§ 392.4 Issuance of a certificate of 

citizenship. 

(a) Approval of application. When an 

application for posthumous citizenship 

under this part has been approved, 

USCIS will issue a Certificate of 

Citizenship to the applicant in the name 

of the decedent. 

* * * * * 

(e) Replacement certificate. An 

application for a replacement Certificate 

of Citizenship must be submitted on the 

form designated by USCIS with the fee 

specified in 8 CFR 103.7(b)(1) and in 

accordance with the form instructions. 

PART 499—[REMOVED] 

■ 268. Part 499 is removed. 

Janet Napolitano, 

Secretary. 

[FR Doc. 2011–20990 Filed 8–26–11; 8:45 am] 

BILLING CODE 9111–97–P 


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