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[Federal Register Volume 89, Number 237 (Tuesday, December 10, 2024)]
[Rules and Regulations]
[Pages 99076-99081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28846]

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DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice: 12446]
RIN 1400-AF82

Visas: Special Immigrant Visas--U.S. Government Employee Special 
Immigrant Visas for Service Abroad

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This final rule makes updates to reflect a statutory change to 
the class of individuals who may qualify for Special Immigrant Visas 
(SIVs).

DATES: This final rule is effective December 10, 2024.

FOR FURTHER INFORMATION CONTACT: Jami Thompson, Senior Regulatory 
Coordinator, U.S. Department of State, Bureau of Consular Affairs, Visa 
Services, 600 19th Street NW, Washington, DC 20522, (202) 485-7586, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Special Immigrant Visas for Certain Employees or Former Employees of 
the United States Abroad, and for the Surviving Spouses or Children of 
Certain Deceased Employees of the U.S. Government Abroad

A. Legal Authority

    Section 203(b)(4) of the Immigration and Nationality Act (INA), as 
amended 8 U.S.C. 1153(b)(4), generally provides that visas may be 
issued to qualified special immigrants described in INA section 
101(a)(27). Among the individuals considered ``special immigrants'' as 
defined in this provision, INA section 101(a)(27)(D), 8 U.S.C. 
1101(a)(27)(D), defines ``special immigrant'' to include employees, or 
honorably retired former employees, of the U.S. Government abroad, or 
of the American Institute in Taiwan, who have performed faithful 
service for a total of fifteen years or more, in addition to their 
accompanying spouse and children, and who have been recommended and 
approved for such status in accordance with enumerated criteria.
    Section 403(a) of the Emergency Security Supplemental 
Appropriations Act, 2021 (``ESSAA''), Public Law 117-31, 135 Stat. 309, 
318, amended the definition of a special immigrant at INA section 
101(a)(27)(D) to include a new subclause (ii). The new subclause 
includes in the definition of ``special immigrant'' the surviving 
spouse or child of an employee of the United States Government abroad: 
Provided, [t]hat the employee performed faithful service for a total of 
not less than 15 years or was killed in the line of duty.'' Under this 
provision, the qualifying surviving spouse or child of a U.S. 
Government employee is a principal applicant for special immigrant 
status, and consequently, their current spouse and minor child(ren) are 
entitled to SIVs as derivatives under INA section 203(d), 8 U.S.C. 
1153(d), if accompanying or following to join the qualifying surviving 
spouse or parent. Pursuant to section 403(d) of the ESSAA, these 
changes are effective June 30, 2021, and have retroactive effect.
    In addition to the qualifications for this group of ``special 
immigrants,'' INA section 204(a)(1)(G)(ii) governs the process through 
which an individual claiming status as a special immigrant under INA 
section 101(a)(27)(D) must file a petition with the Department of 
State, requiring that they first be recommended and approved for such 
status.

B. Processing for Special Immigrants Under INA Section 101(a)(27)(D)

    Under INA sections 204(a)(1)(G)(ii) and 101(a)(27)(D)(i), 
acquisition of special immigrant status under INA section 101(a)(27)(D) 
requires multiple sequential steps. First, the principal officer of the 
U.S. embassy or consulate with jurisdiction over where the individual 
was employed must have recommended the granting of special immigrant 
status in exceptional circumstances, and the Secretary of State or 
appropriate designee must have approved the recommendation and found 
that it is in the national interest to grant such status. Second, under 
INA section 204(a)(1)(G)(ii), only after the approval of the 
recommendation, the applicant may submit a Form DS-1884, Petition to 
Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former 
Employee of the U.S. Government Abroad, or the Surviving Spouse or 
Child of an Employee of the U.S. Government Abroad, to a consular 
officer at a foreign service post. Under Department regulations at 22 
CFR 42.34(b)(2), the date the applicant's properly completed DS-1884 is 
accepted becomes the applicant's priority date. Those same regulations 
at 22 CFR 42.34(b)(4) provide that a petition from a qualifying 
individual is valid for six months from the date of approval or the 
date an immigrant visa number becomes available, whichever is later.

C. What is the impact of the ESSAA?

    Prior to passage of the ESSAA, if the employee were to die before 
entering the United States using their immigrant visa, the surviving 
spouse or child would be ineligible for immigrant status. With the 
passage of the ESSAA, a surviving spouse and surviving child(ren), as a 
principal applicant, are eligible to seek qualification as a special 
immigrant. Additionally, in situations where the employee did not 
pursue special immigrant status prior to the employee's death, their 
surviving spouse and/or child may now qualify to be approved for 
status. These changes apply retroactively, meaning that the surviving 
spouse or child of an employee who died prior to the effective date of 
the ESSAA may also seek to qualify. To be a surviving spouse, the 
spousal relationship must have existed at the time of the deceased 
employee's death. To be a surviving child, the adult son or daughter of 
the deceased employee must have met the definition of ``child'' under 
INA section 101(b)(1) on the date of the employee's death.

II. Changes the Department Is Making

A. 22 CFR 42.11

    This rule makes updates to the Department's regulations at 22 CFR 
42.11 that list the symbols of the current immigrant visa 
classifications to conform with the new classifications added by the 
ESSAA. Specifically, under the ``Employment 4th Preference (Certain 
Special Immigrants)'' header, the Department is adding: The ``SS1'' 
symbol that will be used for issuance of SIVs to the surviving spouse 
or child of a U.S. Government employee; the ``SS2'' symbol that will be 
used for issuance of an SIV to the current spouse of an SS1 who 
qualifies as a derivative under INA 203(d); and the ``SS3'' symbol that 
will be used for issuance of an SIV to the minor child(ren) of an SS1 
who meet(s) the definition of ``child'' under INA 101(b)(1) and 203(h), 
and qualify(ies) as a derivative under INA 203(d).

B. 22 CFR 42.34

    This rule makes changes to Department regulations at 22 CFR 42.34 
to conform with the expanded definition of ``special immigrant'' under 
the ESSAA. For the reasons explained below, the Department believes 
these (or

[[Page 99077]]

equivalent) changes are necessary to implement the best reading of the 
ESSAA. The changes include the explanation of the classification of a 
surviving spouse or child of an employee of the United States 
Government abroad who was killed in the line of duty, or who performed 
faithful service for at least fifteen years before their death.
    As summarized above, the ESSAA added a new subsection (ii) to INA 
101(a)(27)(D) and amended INA 101(a)(27)(D) to specify that a ``special 
immigrant'' includes an individual described in clause (D)(i) ``or'' 
clause (D)(ii). The ESSAA did not amend INA 204(a)(1)(G)(ii), which 
governs the process through which an individual petitions for status 
``as a special immigrant under INA 101(a)(27)(D).'' Consequently, as 
this provision was not amended to distinguish the petition process for 
special immigrants described in INA 101(a)(27)(D)(i) or INA 
101(a)(27)(D)(ii), INA 204(a)(1)(G)(ii) continues to govern the 
petition process for both subcategories of ``special immigrants'' 
described in section 101(a)(27)(D), providing that applicants seeking 
status under either subcategory ``may file a petition . . . only after 
notification by the Secretary of State that such status has been 
recommended and approved pursuant to such section.'' Although INA 
101(a)(27)(D)(ii) as amended does not expressly reference a framework 
for recommendation and approval, INA 101(a)(27)(D)(i) establishes the 
standards for a recommendation and approval process, including that the 
recommendation of an individual for special immigrant status be made in 
``exceptional circumstances'' and the approval be ``in the national 
interest,'' as well as identifies officers vested with authority for 
those respective functions. Incorporating into INA 101(a)(27)(D)(ii) 
the standards and process for recommendation and approval expressly 
provided by Congress in INA 101(a)(27)(D)(i) reflects the best reading 
of the statutory framework as amended by ensuring consistency with the 
companion provision in INA 204(a)(1)(G)(ii) requiring recommendation 
and approval of such cases and ensuring the consistent application of 
the longstanding framework for the granting of special immigrant visas 
to U.S. Government employees.
    To address potential inconsistencies in how this change would be 
implemented using the existing definition of ``exceptional 
circumstances'' at 22 CFR 42.34(c)(7), this rule explains the 
circumstances in which a surviving spouse or child would be recommended 
for special immigrant status, based on the criteria described in INA 
section 101(a)(27)(D)(ii). In addition to qualifying employees' deaths 
that occurred in the line of duty, these include when the deceased 
employee performed at least 15 years of faithful service for the U.S. 
Government and either would have qualified for special immigrant status 
before dying or was employed by the U.S. Government as of the date of 
their death or in the immediately preceding five-year period. These 
parameters will encompass those family members of deceased employees 
who, but for their death following at least 15 years of faithful 
service, were likely to have soon qualified for special immigrant 
status by accumulating 20 years of faithful service (where 20 years is 
a strong indicator of exceptional circumstances under 22 CFR 
42.34(c)(7)(ii)(E)). This standard encompasses those who were employed 
by the U.S. Government in the period immediately preceding their death, 
as the Department anticipates that in some cases, an employee may have 
ceased employment by the U.S. Government with the intention of 
returning, but for circumstances out of their control. For example, an 
employee who dies following a serious illness may have ceased or 
temporarily left their employment for a period to combat their illness. 
Consequently, to provide clarity to the public and support consistent 
application, the rule establishes a rebuttable presumption that a death 
occurring more than five years after cessation of employment is not 
related to the cessation of their employment for purposes of their 
surviving spouse or child qualifying for special immigrant status.
    The Department believes this five-year presumption will account for 
the gravity and severity of the circumstances surrounding cessation of 
employment, and the likelihood that a previously employed individual 
would have returned to work to complete 20 years of service, if they 
were able to do so. This presumption is rebuttable and will require 
case-specific consideration of those individuals whose circumstances 
fall outside the five-year presumption and who wish to provide evidence 
to establish their qualifications. Surviving spouses and children of 
employees who died for reasons unrelated to cessation of employment are 
not precluded from qualifying as special immigrants, provided they can 
demonstrate that the employee demonstrated at least one form of 
``exceptional circumstances'' while still employed. The changes also 
highlight that the processes to qualify for eligibility are the same 
for a surviving spouse or child as they are for employees. These 
changes make necessary amendments to 22 CFR 42.34 to provide for the 
issuance of SIVs to qualified surviving spouses and children of U.S. 
Government employees, and to reflect the amended citations in INA 
section 101(a)(27)(D) under the ESSAA.
    This rule also makes corrections throughout 22 CFR 42.34 to replace 
the term ``alien'' with the term ``applicant'' or ``employee,'' as 
appropriate. This change is consistent with current Department 
practice.\1\
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    \1\ See 88 FR 45072 (July 14, 2023).
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    Finally, this rule also amends the certification, required as part 
of the principal officer's recommendation, that the individual being 
recommended is prepared to pursue an immigrant visa application 
``within one year of the Department's notification to the post of 
approval of special immigrant status.'' As applicants in numerically 
limited immigrant visa categories, including INA section 203(b)(4), may 
not pursue an immigrant visa application until such time that a visa 
number becomes available in that category, this requirement has been 
changed to reflect that the recommended individual must be prepared to 
pursue their application ``within one year of the Department's 
notification to the post of approval of special immigrant status, or of 
an immigrant visa becoming available, whichever is later.''

Regulatory Findings

A. Administrative Procedure Act

    This rule is exempted from the notice and comment and delayed 
effective date rulemaking procedures set forth in 5 U.S.C. 553 because 
the rule involves a foreign affairs function. 5 U.S.C. 553(a)(1). This 
exemption applies when the rule's subject matter ``is clearly and 
directly involved in a foreign affairs function.'' Mast Indus. v. 
Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) (quotation marks omitted). 
In addition, although the text of the APA does not require an agency 
invoking this exemption to show that rulemaking with public notice and 
comment would result in ``definitely undesirable international 
consequences,'' some courts have required such a showing. See, e.g., 
Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). This rule 
satisfies both standards.

[[Page 99078]]

    This rule extends the authority to grant special immigrant status 
to the surviving spouse or child of a U.S. Government employee who 
performed faithful service for at least fifteen years or was killed in 
the line of duty. As with the availability of special immigrant status 
to qualifying locally employed staff, eligibility for employees' 
surviving spouses and children encourages employees to remain in their 
jobs and to provide long-term, institutional memory to U.S. Government 
agencies abroad. This is particularly essential in countries where 
local staff members and their families face retribution by the host 
government, making it even more challenging to recruit and retain a 
locally employed workforce. For this reason, extending eligibility to 
the employee's surviving spouse and children critically impacts the 
willingness of foreign nationals to become, and remain, employees of 
the U.S. Government in overseas posts, and hence directly impacts the 
effectiveness of U.S. diplomatic efforts in those countries.
    The Department's establishment of criteria for surviving spouses 
and child(ren) to qualify for special immigrant status under ESSAA 
clearly and directly relates to U.S. foreign affairs, because the 
criteria itself is critical for the U.S. Government to recruit and 
retain loyal, valuable local staff outside the United States, without 
whom the Department could not fulfill its diplomatic functions 
overseas. The Department alone employs approximately 50,000 local staff 
at over 200 Foreign Service posts overseas. Expanded qualifications for 
surviving spouses and child(ren) is critical to recruitment, retention, 
and morale of these locally employed staff who help the Department 
carry out its foreign affairs functions overseas. For example, 
following the 2013 death of Mustafa Akarsu, a member of the local guard 
force for U.S. Embassy Ankara for 22 years, when he confronted a 
suicide bomber outside the Embassy, Department employee organizations 
including the American Foreign Service Association, advocated for 
passage of legislation eventually enacted in ESSAA to provide SIVs to 
the surviving spouses and children of U.S. Government employees killed 
in the line of duty. Consequently, implementation of these standards 
for surviving family members clearly and directly involves a U.S. 
foreign affairs function.
    Finally, the Department considers that providing the opportunity 
for public notice and comment would provide ``definitely undesirable 
international consequences,'' in that conducting and resolving a public 
debate regarding the safety of surviving spouses and children of U.S. 
Government employees killed abroad would risk impairing U.S. relations 
with other countries. See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 
(2d Cir. 2008). The loss of United States local employees in the line 
of duty has previously had the effect of straining bilateral relations, 
and has the continued potential to do so, particularly when such losses 
involve local foreign authorities or other parties over which the host 
country exercises control. This may be even more so in countries with 
which the United States already has sensitive or strained relations, 
which may oppose the availability of immigrant visas to the surviving 
spouses and children of such staff, who are usually nationals of the 
host country. Accordingly, the promulgation of standards for approval 
under the Secretary of State's authority in INA 101(a)(27)(D) involves 
an inherently foreign affairs function of the Department of State.

B. Regulatory Flexibility Act/Executive Order 13272: Small Business

    As this final rule is exempt from notice and comment rulemaking 
under 5 U.S.C. 553(a)(1), it is exempt from the regulatory flexibility 
analysis requirements set forth by the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). Nonetheless, as this action only directly impacts 
visa applicants, the Department certifies that this rule will not have 
a significant economic impact on a substantial number of small U.S. 
entities.

C. Congressional Review Act of 1996

    This rule is not a major rule as defined in 5 U.S.C. 804. 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 adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based companies to compete with foreign-based 
companies in domestic and import markets.

D. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 14094 (Modernizing 
Regulatory Review)

    This rule has been drafted in accordance with the principles of 
Executive Orders 12866 (as amended by Executive Order 14094) and 13563. 
The Department has submitted this rule to OIRA for review and it has 
been deemed a significant regulatory action.

E. Executive Order 12988: Civil Justice Reform

    The Department of State has reviewed the rule considering sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burdens.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    The Department of State has determined that this rulemaking will 
not have Tribal implications, will not impose substantial direct 
compliance costs on Indian Tribal Governments, and will not pre-empt 
Tribal law. Accordingly, the requirements of Section 5 of Executive 
Order 13175 do not apply to this rulemaking.

G. Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 
Chapter 35. The Form DS-1884, Petition to Classify Special Immigrant 
under INA 203(b)(4) as an Employee or Former Employee of the U.S. 
Government Abroad, is approved under the PRA (OMB Control No. 1405-
0082).

H. Other

    The Department has also considered the Unfunded Mandates Reform Act 
of 1995 and Executive Orders 12372 and 13132 and affirms this rule is 
consistent with the applicable mandates or guidance therein.

List of Subjects in 22 CFR Part 42

    Administrative practice and procedure, Aliens, Passports and visas.

    Accordingly, for the reasons set forth in the preamble, 22 CFR part 
42 is amended as follows:

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 42 continues to read as follows:

    Authority:  8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 
2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection 
of Children and Co-operation in Respect of Intercountry Adoption 
(done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 
(Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub L. 117-31, 135 
Stat. 309); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8 
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).

0
2. Section 42.11 is amended in table 1 to Sec.  42.11 under the 
undesignated

[[Page 99079]]

center heading ``Employment 4th Preference (Certain Special 
Immigrants)'' by:
0
a. Revising the entries for SE1, SE2, SE3, and SS1; and
0
b. Adding entries for SS2 and SS3 in alphanumeric order.
    The revisions and additions read as follows:

Sec.  42.11  Classification symbols.

* * * * *

                         Table 1 to Sec.   42.11
------------------------------------------------------------------------
          Symbol                    Class              Section of Law
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
         Employment 4th Preference (Certain Special Immigrants)
------------------------------------------------------------------------
 
                              * * * * * * *
SE1.......................  Certain Employee or    INA 101(a)(27)(D)(i)
                             Former Employee of     & INA 203(b)(4).
                             the U.S. Government
                             Abroad.
SE2.......................  Spouse of SE1........  INA 101(a)(27)(D)(i)
                                                    & INA 203(b)(4).
SE3.......................  Child of SE1.........  INA 101(a)(27)(D)(i)
                                                    & INA 203(b)(4).
 
                              * * * * * * *
SS1.......................  Surviving Spouse or    INA 101(a)(27)(D)(ii)
                             Child of an Employee   & INA 203(b)(4).
                             of the United States
                             Government Abroad.
SS2.......................  Current Spouse of SS1  INA
                                                    101(a)(27)(D)(ii),
                                                    INA 203(b)(4) & INA
                                                    203(d).
SS3.......................  Child of SS1           INA
                             (Excludes Surviving    101(a)(27)(D)(ii),
                             Child of an Employee   INA 1101(b)(1),
                             of the United States   203(b)(4), & INA
                             Government Abroad),    203(d).
                             provided the child
                             meets the definition
                             of 101(b)(1) of the
                             INA.
 
                              * * * * * * *
------------------------------------------------------------------------

0
3. Section 42.34 is revised to read as follows:

Sec.  42.34  Special immigrant visas-certain U.S. Government employees.

    (a) General. An applicant is classifiable under INA 203(b)(4) as a 
special immigrant described in INA 101(a)(27)(D) provided:
    (1) (i) The applicant has performed faithful service to the United 
States Government abroad, or the American Institute in Taiwan, for a 
total of fifteen years or more; or
    (ii) The applicant is the surviving spouse or child of an employee 
of the United States Government abroad who performed faithful service 
for a total of not less than 15 years or was killed in the line of 
duty; and
    (2) The principal officer of a Foreign Service establishment (or, 
in the case of the American Institute in Taiwan, the Director), 
recommends granting special immigrant status to such person in 
exceptional circumstances; and
    (3) The Secretary of State, or designee, approves such 
recommendation and finds that it is in the national interest to grant 
such status.
    (b) Petition requirement. An applicant who seeks classification as 
a special immigrant described in paragraph (a) of this section must 
file a Form DS-1884, Petition to Classify Special Immigrant under INA 
203(b)(4) as an Employee or Former Employee of the U.S. Government 
Abroad, or the Surviving Spouse or Child of an Employee of the U.S. 
Government Abroad, with the Department of State. An applicant described 
in INA 101(a)(27)(D) may file such a petition only after, but within 
one year of, notification from the Department that the Secretary of 
State or designee has approved a recommendation from the principal 
officer that special immigrant status be accorded the applicant in 
exceptional circumstances and has found it in the national interest to 
do so.
    (1) Petition fees. The Secretary of State shall establish a fee for 
the filing of a petition to accord status under INA 203(b)(4) which 
shall be collected following notification that the Secretary of State, 
or designee, has approved the recommendation that the applicant be 
granted status as a special immigrant under INA 101(a)(27)(D).
    (2) Establishing priority date. The priority date of an applicant 
seeking status under INA 203(b)(4) as a special immigrant described in 
INA 101(a)(27)(D) shall be the date on which the petition to accord 
such classification, the DS-1884, is filed. The filing date of the 
petition is the date on which a properly completed form and the 
required fee are accepted by a Foreign Service post. Pursuant to INA 
203(d), and whether named in the petition, the current spouse or child 
who meets the definition of ``child'' under INA 101(b)(1) of an 
applicant classified under INA 203(b)(4), if not otherwise entitled to 
an immigrant status and the immediate issuance of a visa, is entitled 
to the classification and priority date of the beneficiary of the 
petition.
    (3) Delegation of authority to approve petitions. The authority to 
approve petitions to accord status under INA 203(b)(4) to an applicant 
described in INA 101(a)(27)(D) is hereby delegated to the chief 
consular officer at the post of recommendation or, in the absence of 
the consular officer, to any alternate approving officer designated by 
the principal officer. Such authority may not be exercised until the 
Foreign Service post has received formal notification of the Secretary 
of State or designee's approval of special immigrant status for the 
petitioning applicant.
    (4) Petition validity. Except as noted in this paragraph, the 
validity of a petition approved for classification under INA 203(b)(4) 
shall be six months beyond the date of the Secretary of State's 
approval thereof or the availability of a visa number, whichever is 
later.
    (5) Extension of special immigrant status and petition validity. If 
the principal officer of a post concludes that circumstances in a 
particular case are such that an extension of validity of the Secretary 
of State or designee's approval of the principal officer's 
recommendation or of the petition would be in the national interest, 
the

[[Page 99080]]

principal officer shall recommend to the Secretary of State or designee 
that such validity be extended for not more than one additional year.
    (c) Definitions--(1) Full-time service. Where 15 years of service 
is the minimum time required for eligibility for a special immigrant 
visa, the employee must have been employed for a total of at least 15 
full-time years, or the equivalent thereof, in the service of the U.S. 
Government abroad. The number of hours per week that qualify an 
employee as full-time is dependent on local law and prevailing practice 
in the country where the individual is or was employed, as reflected in 
the employment documentation submitted with the application for special 
immigrant status. The years of service may be met based on employment 
abroad with one, or more than one, agency of the U.S. Government 
provided the total amount of full-time service with the U.S. Government 
is 15 years or more, or the equivalent thereof.
    (2) Faithful service. Where faithful service is required for 
eligibility for a special immigrant visa, an employee must have 
performed faithfully in the position held. The principal officer has 
the primary responsibility for determining whether the employee's 
service meets this requirement. A record of disciplinary actions that 
have been taken against the employee does not automatically disqualify 
the applicant. The principal officer must assess the record of 
disciplinary actions considering the extent and gravity of the 
misconduct and when the incidents occurred, and determine whether the 
record as a whole, notwithstanding disciplinary actions, is one of 
faithful service.
    (3) Continuity. Where 15 years of service is the minimum time 
required for eligibility for a special immigrant visa, the employee's 
period of service need not have been continuous but must have an 
aggregate total of 15 years of service to qualify.
    (4) Abroad. The service must have occurred anywhere outside the 
United States, as the term ``United States'' is defined in INA 
101(a)(38).
    (5) Employment at the American Institute in Taiwan. INA 
101(a)(27)(D) permits both present and former employees of the American 
Institute in Taiwan to apply for special immigrant status. An 
employee's service before and after the founding of the American 
Institute in Taiwan is counted toward the minimum 15 years of service 
requirement.
    (6) Honorably retired. Separations within the meaning of 
``honorably retired'' include, for example, those resulting from 
mandatory or voluntary retirement, reduction-in-force, or resignation 
for personal reasons. Separations not within the meaning of ``honorably 
retired'' would include a termination for cause or an involuntary 
termination or resignation in lieu of a termination for cause.
    (7) Exceptional circumstances for employees of the United States 
Government abroad. For classification as a special immigrant under INA 
101(a)(27)(D)(i), the principal officer must determine that an employee 
demonstrates at least one form of ``exceptional circumstances'' to 
support an application for special immigrant status.
    (i) Prima facie indicators of exceptional circumstances. In the 
following situations, an employee's service with the U.S. Government 
generally will be deemed to have met exceptional circumstances.
    (A) Diplomatic relations between the employee's country of 
nationality and the United States have been severed;
    (B) Diplomatic relations between the country in which the employee 
was employed and the United States have been severed;
    (C) The country in which the employee was employed and the United 
States have strained relations and the employee may be subjected to 
retribution by the local, State, Federal, or other official government 
body merely because of association with the U.S. Government, or the 
employee may be pressured to divulge information contrary to U.S. 
national interests; or
    (D) The employee was hired at the Consulate General at Hong Kong on 
or before July 1, 1999.
    (ii) Strong indicators of exceptional circumstances. (A) It is 
believed that continued service to the U.S. Government might endanger 
the life of the employee;
    (B) The employee has fulfilled responsibilities or given service in 
a manner that approaches the heroic;
    (C) The employee has been awarded a global or a regional ``Foreign 
Service National of the Year'' Award;
    (D) The employee has disclosed waste, fraud or abuse, a substantial 
and specific danger to public health or safety, or a violation of law, 
rule, or regulation within the Department or other U.S. Government 
agency, if such disclosure results in significant action by the 
Department or other U.S. Government agency against an offending party, 
such as termination or severance of a contractual relationship, or 
criminal charges against any person or entity.
    (E) The employee has served the U.S. Government for a period of 
twenty years or more.
    (8) Exceptional circumstances for surviving spouses and children. 
For classification as a special immigrant under INA 101(a)(27)(D)(ii), 
the principal officer must determine that the deceased employee:
    (i) Was killed in the line of duty; or
    (ii) Performed faithful service to the United States Government 
abroad for a total of not less than 15 years; and
    (A) Was employed by the U.S. Government as of the date of their 
death or in the immediately preceding period as defined in paragraph 
(c)(9) of this section, or
    (B) Was an honorably retired former employee who, prior to their 
death, demonstrated at least one form of ``exceptional circumstances'' 
as defined in paragraph (c)(7) of this section.
    (9) Immediately preceding period. (i) As provided in paragraph 
(c)(8)(ii)(A) of this section, a deceased employee is considered to 
have been employed by the U.S. Government in the period immediately 
preceding their death if such employment ceased due to circumstances 
that resulted in their death.
    (ii) A deceased employee is presumed to not meet the criteria in 
paragraph (c)(8)(ii)(A) of this section if the employee's death 
occurred more than five years following cessation of employment. This 
presumption can be rebutted if the applicant establishes, to the 
satisfaction of the principal officer, that the employment ceased due 
to circumstances that resulted in the employee's death, and the 
Secretary or appropriate designee finds it in the national interest to 
grant such status. The principal officer has the primary responsibility 
for determining whether the applicant meets this criterion, taking into 
consideration as informed by the circumstances of the cessation of 
employment, the cause of the employee's death as documented by the 
applicant, and other relevant evidence the applicant presents that 
demonstrates that the cessation of employment was for reasons that 
ultimately resulted in the employee's death.
    (10) Immediate intent to immigrate. (i) The recommendation of the 
principal officer must certify that the applicant being recommended is 
prepared to file a petition within one year of the Department's 
notification to the post of approval of special immigrant status, and 
to pursue an immigrant visa application within six months of the 
Secretary of State's approval of the petition or of an immigrant visa 
becoming available, whichever is later.

[[Page 99081]]

If the applicant is an employee who is not yet honorably retired, the 
recommendation must also certify that the employee intends permanent 
separation from U.S. Government employment abroad no later than the 
date of departure for the United States following issuance of an 
immigrant visa.
    (ii) Employees of Hong Kong Consulate General hired on or before 
July 1, 1999, are not required to establish immediate intent to 
immigrate. Employees of the Hong Kong Consulate General who received or 
were approved for special immigrant status before July 1, 1999, also 
may continue employment with the U.S. Government.

Julie M. Stufft,
Deputy Assistant Secretary, Consular Affairs, Department of State.
[FR Doc. 2024-28846 Filed 12-9-24; 8:45 am]
BILLING CODE 4710-06-P
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