8 CFR Part 204 — Immigrant Petitions

PART 204—IMMIGRANT PETITIONS Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 1255, 1324a, 1641; 8 CFR part 2. Subpart A—Immigrant Visa Petitions § 204.1 General information about immediate relative and family-sponsored petitions. (a) Types of petitions. (1) A citizen or lawful permanent resident of the United States petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act for a qualifying relative's classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a) of the Act must file a Form I-130, Petition for Alien Relative. These petitions are described in § 204.2; (2) A widow or widower of a United States citizen self-petitioning under section 204(a)(1)(A)(ii) of the Act as an immediate relative under section 201(b) of the Act must file a Form I-360, Petition for Amerasian, Widow, or Special Immigrant. These petitions are described in § 204.2; (3) A spouse or child of an abusive citizen or lawful permanent resident of the United States self-petitioning under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act for classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a) of the Act must file a Form I-360, Petition for Amerasian, Widow, or Special Immigrant. These petitions are described in § 204.2; (4) A U.S. citizen seeking to have USCIS accord immediate relative status to a child based on the citizen's adoption of the child as an orphan, as defined in section 101(b)(1)(F) of the Act, must follow the procedures in § 204.3. (5) A U.S. citizen seeking to have USCIS accord immediate relative status to a child under section 101(b)(1)(G) of the Act on the basis of a Convention adoption must: (i) File a Form I-800A, Application to Determine Suitability as Adoptive Parents for a Convention adoptee; and (ii) After USCIS approves the Form I-800A, file a Form I-800, Petition to Classify Convention adoptee as Immediate Relative, as provided in 8 CFR part 204, subpart C. (6) Any person filing a petition under section 204(f) of the Act as, or on behalf of, an Amerasian for classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360, Petition for Amerasian, Widow, or Special Immigrant. These petitions are described in § 204.4. (b) Proper filing. (c)-(e) [Reserved]. (f) Supporting documentation. (2) Original documents or legible, true copies of original documents are acceptable. The Service reserves the right to require submission of original documents when deemed necessary. Documents submitted with the petition will not be returned to the petitioner, except when originals are requested by the Service. If original documents are requested by the Service, they will be returned to the petitioner after a decision on the petition has been rendered, unless their validity or authenticity is in question. When an interview is required, all original documents must be presented for examination at the interview. (3) Foreign language documents must be accompanied by an English translation which has been certified by a competent translator. (g) Evidence of petitioner's United States citizenship or lawful permanent residence Primary evidence. (i) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States; (ii) An unexpired United States passport issued initially for a full ten-year period to a petitioner over the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national); (iii) An unexpired United States passport issued initially for a full five-year period to the petitioner under the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national); (iv) A statement executed by a United States consular officer certifying the petitioner to be a United States citizen and the bearer of a currently valid United States passport; (v) The petitioner's Certificate of Naturalization or Certificate of Citizenship; (vi) Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner; (vii) The petitioner's Form I-551, Permanent Resident Card, or other proof given by the Service as evidence of lawful permanent residence. Photocopies of Form I-551 or of a Certificate of Naturalization or Certificate of Citizenship may be submitted as evidence of status as a lawfully permanent resident or United States citizen, respectively. (2) Secondary evidence. (i) A baptismal certificate with the seal of the church, showing the date and place of birth in the United States and the date of baptism; (ii) Affidavits sworn to by persons who were living at the time and who have personal knowledge of the event to which they attest. The affidavits must contain the affiant's full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant acquired knowledge of the event; (iii) Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s); (iv) Census records showing the name, place of birth, and date of birth or age of the petitioner; or (v) If it is determined that it would cause unusual delay or hardship to obtain documentary proof of birth in the United States, a United States citizen petitioner who is a member of the Armed Forces of the United States and who is serving outside the United States may submit a statement from the appropriate authority of the Armed Forces. The statement should attest to the fact that the personnel records of the Armed Forces show that the petitioner was born in the United States on a certain date. (3) Evidence submitted with a self-petition. [57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR 19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007; 74 FR 26936, June 5, 2009; 76 FR 28305, May 17, 2011] § 204.2 Petitions for relatives, widows and widowers, and abused spouses and children. (a) Petition for a spouse Eligibility. (i) Marriage within five years of petitioner's obtaining lawful permanent resident status. ( 1 ( 2 (B) Documentation. ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 (C) The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the “clear and convincing evidence” standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence. The director may choose to initiate deportation proceedings based upon information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage was not entered into for the purpose of evading the immigration laws. Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203(c) of the Act based upon any spousal second preference petition. (ii) Fraudulent marriage prohibition. (iii) Marriage during proceedings—general prohibition against approval of visa petition. (A) Request for exemption. (B) Evidence to establish eligibility for the bona fide marriage exemption. ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 (C) Decision. (D) Denials. Provided, (E) Appeals. (F) Priority date. (2) Evidence for petition for a spouse. (3) Decision on and disposition of petition. (4) Derivative beneficiaries. (b) Petition by widow or widower of a United States citizen Eligibility. (i) He or she had been married for at least two years to a United States citizen. (Note: The United States citizen is not required to have had the status of United States citizen for the entire two year period, but must have been a United States citizen at the time of death.) (ii) The petition is filed within two years of the death of the citizen spouse or before November 29, 1992, if the citizen spouse died before November 29, 1990; (iii) The alien petitioner and the citizen spouse were not legally separated at the time of the citizen's death; and (iv) The alien spouse has not remarried. (2) Evidence for petition of widow or widower. (i) Such evidence of the marriage and termination of prior marriages as religious documents, tribal records, census records, or affidavits; and (ii) Such evidence of the United States citizen's death as religious documents, funeral service records, obituaries, or affidavits. Affidavits submitted as secondary evidence pursuant to paragraphs (b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by people who have personal knowledge of the event to which they attest. Each affidavit should contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship, if any, to the widow or widower. Any such affidavit must contain complete information and details explaining how knowledge of the event was acquired. (3) Decision on and disposition of petition. (4) Derivative beneficiaries. (c) Self-petition by spouse of abusive citizen or lawful permanent resident Eligibility Basic eligibility requirements. (A) Is the spouse of a citizen or lawful permanent resident of the United States; (B) Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship; (C) Is residing in the United States; (D) Has resided in the United States with the citizen or lawful permanent resident spouse; (E) Has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage; or is that parent of a child who has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage; (F) Is a person of good moral character; (G) Is a person whose deportation would result in extreme hardship to himself, herself, or his or her child; and (H) Entered into the marriage to the citizen or lawful permanent resident in good faith. (ii) Legal status of the marriage. (iii) Citizenship or immigration status of the abuser. (iv) Eligibility for immigrant classification. (v) Residence. (vi) Battery or extreme cruelty. (vii) Good moral character. (viii) Extreme hardship. (ix) Good faith marriage. (2) Evidence for a spousal self-petition General. (ii) Relationship. (iii) Residence. (iv) Abuse. (v) Good moral character. (vi) Extreme hardship. (vii) Good faith marriage. (3) Decision on and disposition of the petition Petition approved. (ii) Petition denied. (4) Derivative beneficiaries. (5) Name change. (6) Prima facie determination. (ii) For purposes of paragraph (c)(6)(i) of this section, a prima facie case is established only if the petitioner submits a completed Form I-360 and other evidence supporting all of the elements required of a self-petitioner in paragraph (c)(1) of this section. A finding of prima facie eligibility does not relieve the petitioner of the burden of providing additional evidence in support of the petition and does not establish eligibility for the underlying petition. (iii) If the Service determines that a petitioner has made a “prima facie case,” the Service shall issue a Notice of Prima Facie Case to the petitioner. Such Notice shall be valid until the Service either grants or denies the petition. (iv) For purposes of adjudicating the petition submitted under paragraph (c)(1) of this section, a prima facie determination— (A) Shall not be considered evidence in support of the petition; (B) Shall not be construed to make a determination of the credibility or probative value of any evidence submitted along with that petition; and, (C) Shall not relieve the self-petitioner of his or her burden of complying with all of the evidentiary requirements of paragraph (c)(2) of this section. (d) Petition for a child or son or daughter Eligibility. (2) Evidence to support petition for child or son or daughter. (i) Primary evidence for a legitimate child or son or daughter. (ii) Primary evidence for a legitimated child or son or daughter. (iii) Primary evidence for an illegitimate child or son or daughter. (iv) Primary evidence for a stepchild. (v) Secondary evidence. (vi) Blood tests. (vii) Primary evidence for an adopted child or son or daughter. (A) Legal custody (B) Evidence must also be submitted to show that the beneficiary resided with the petitioner for at least two years. Generally, such documentation must establish that the petitioner and the beneficiary resided together in a familial relationship. Evidence of parental control may include, but is not limited to, evidence that the adoptive parent owns or maintains the property where the child resides and provides financial support and day-to-day supervision. The evidence must clearly indicate the physical living arrangements of the adopted child, the adoptive parent(s), and the natural parent(s) for the period of time during which the adoptive parent claims to have met the residence requirement. When the adopted child continued to reside in the same household as a natural parent(s) during the period in which the adoptive parent petitioner seeks to establish his or her compliance with this requirement, the petitioner has the burden of establishing that he or she exercised primary parental control during that period of residence. (C) Legal custody and residence occurring prior to or after the adoption will satisfy both requirements. Legal custody, like residence, is accounted for in the aggregate. Therefore, a break in legal custody or residence will not affect the time already fulfilled. To meet the definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of the Act, the child must have been under 16 years of age when the adoption is finalized. (D) On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective date. In the case of any adoption occurring on or after the Convention effective date, a Form I-130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption. (E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen, 8 CFR 204.303 notwithstanding, to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States. (F) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a Form I-130 under section 101(b)(1)(E) of the Act on behalf of an alien child who is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the child's arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child's adoption may file a Form I-800A and Form I-800 under 8 CFR part 204, subpart C. (3) Decision on and disposition of petition. (4) Derivative beneficiaries. (5) Name change. (e) Self-petition by child of abusive citizen or lawful permanent resident Eligibility. (A) Is the child of a citizen or lawful permanent resident of the United States; (B) Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship; (C) Is residing in the United States; (D) Has resided in the United States with the citizen or lawful permanent resident parent; (E) Has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident parent while residing with that parent; (F) Is a person of good moral character; and (G) Is a person whose deportation would result in extreme hardship to himself or herself. (ii) Parent-child relationship to the abuser. (iii) Citizenship or immigration status of the abuser. (iv) Eligibility for immigrant classification. (v) Residence. (vi) Battery or extreme cruelty. (vii) Good moral character. (viii) Extreme hardship. (2) Evidence for a child's self-petition General. (ii) Relationship. (A) The self-petitioning child and an abusive biological mother is the self-petitioner's birth certificate issued by civil authorities; (B) A self-petitioning child who was born in wedlock and an abusive biological father is the child's birth certificate issued by civil authorities, the marriage certificate of the child's parents, and evidence of legal termination of all prior marriages, if any; (C) A legitimated self-petitioning child and an abusive biological father is the child's birth certificate issued by civil authorities, and evidence of the child's legitimation; (D) A self-petitioning child who was born out of wedlock and an abusive biological father is the child's birth certificate issued by civil authorities showing the father's name, and evidence that a bona fide parent-child relationship has been established between the child and the parent; (E) A self-petitioning stepchild and an abusive stepparent is the child's birth certificate issued by civil authorities, the marriage certificate of the child's parent and the stepparent showing marriage before the stepchild reached 18 years of age, and evidence of legal termination of all prior marriages of either parent, if any; and (F) An adopted self-petitioning child and an abusive adoptive parent is an adoption decree showing that the adoption took place before the child reached 16 years of age, and evidence that the child has been residing with and in the legal custody of the abusive adoptive parent for at least 2 years. (iii) Residence. (iv) Abuse. (v) Good moral character. (vi) Extreme hardship. (3) Decision on and disposition of the petition Petition approved. (ii) Petition denied. (4) Derivative beneficiaries. (5) Name change. (6) Prima facie determination. (ii) For purposes of paragraph (e)(6)(i) of this section, a prima facie case is established only if the petitioner submits a completed Form I-360 and other evidence supporting all of the elements required of a self-petitioner in paragraph (e)(1) of this section. A finding of prima facie eligibility does not relieve the petitioner of the burden of providing additional evidence in support of the petition and does not establish eligibility for the underlying petition. (iii) If the Service determines that a petitioner has made a “prima facie case” the Service shall issue a Notice of Prima Facie Case to the petitioner. Such Notice shall be valid until the Service either grants or denies the petition. (iv) For purposes of adjudicating the petition submitted under paragraph (e)(1) of this section, a prima facie determination: (A) Shall not be considered evidence in support of the petition; (B) Shall not be construed to make a determination of the credibility or probative value of any evidence submitted along with that petition; and, (C) Shall not relieve the self-petitioner of his or her burden of complying with all of the evidentiary requirements of paragraph (e)(2) of this section. (f) Petition for a parent Eligibility. (2) Evidence to support a petition for a parent. (i) Primary evidence if petitioner is a legitimate son or daughter. (ii) Primary evidence if petitioner is a legitimated son or daughter. (iii) Primary evidence if the petitioner is an illegitimate son or daughter. (iv) Primary evidence if petitioner is an adopted son or daughter. (A) Legal custody (B) Evidence must also be submitted to show that the beneficiary resided with the petitioner for at least two years. Generally, such documentation must establish that the petitioner and the beneficiary resided together in a parental relationship. The evidence must clearly indicate the physical living arrangements of the adopted child, the adoptive parent(s), and the natural parent(s) for the period of time during which the adoptive parent claims to have met the residence requirement. (C) Legal custody and residence occurring prior to or after the adoption will satisfy both requirements. Legal custody, like residence, is accounted for in the aggregate. Therefore, a break in legal custody or residence will not affect the time already fulfilled. To meet the definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of the Act, the child must have been under 16 years of age when the adoption is finalized. (v) Name change. (3) Decision on and disposition of petition. (4) Derivative beneficiaries. (g) Petition for a brother or sister Eligibility. (2) Evidence to support a petition for brother or sister. (i) Primary evidence if the siblings share a common mother or are both legitimate children of a common father. (ii) Primary evidence if either or both siblings are legitimated. (iii) Primary evidence if either sibling is illegitimate. (iv) Primary evidence for stepsiblings. (3) Decision on and disposition of petition. (4) Derivative beneficiaries. (5) Name change. (h) Validity of approved petitions General. (2) Subsequent petition by same petitioner for same beneficiary. (i) Automatic conversion of preference classification By change in beneficiary's marital status. (ii) A currently valid petition previously approved to classify a child of a United States citizen as an immediate relative under section 201(b) of the Act shall be regarded as having been approved for preference status under section 203(a)(3) of the Act as of the date the beneficiary marries. The beneficiary's priority date is the same as the date the petition for 201(b) classification was properly filed. (iii) A currently valid petition classifying the married son or married daughter of a United States citizen for preference status under section 203(a)(3) of the Act shall, upon legal termination of the beneficiary's marriage, be regarded as having been approved under section 203(a)(1) of the Act if the beneficiary is over twenty-one years of age. The beneficiary's priority date is the same as the date the petition for classification under section 203(a)(3) of the Act was properly filed. If the beneficiary is under twenty-one years of age, the petition shall be regarded as having been approved for classification as an immediate relative under section 201(b) of the Act as of the date the petition for classification under section 203(a)(3) of the Act was properly filed. (iv) A currently valid visa petition previously approved to classify the beneficiary as an immediate relative as the spouse of a United States citizen must be regarded, upon the death of the petitioner, as having been approved as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant for classification under paragraph (b) of this section, if, on the date of the petitioner's death, the beneficiary satisfies the requirements of paragraph (b)(1) of this section. If the petitioner dies before the petition is approved, but, on the date of the petitioner's death, the beneficiary satisfies the requirements of paragraph (b)(1) of this section, then the petition shall be adjudicated as if it had been filed as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant under paragraph (b) of this section. (2) By the beneficiary's attainment of the age of twenty-one years. (3) By the petitioner's naturalization. [57 FR 41057, Sept. 9, 1992, as amended at 60 FR 34090, June 30, 1995; 60 FR 38948, July 31, 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, 1997; 71 FR 35749, June 21, 2006; 72 FR 19107, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007; 90 FR 4588, Jan. 16, 2025] § 204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-Hague Adoption Convention cases). (a) This section addresses the immigration classification of alien orphans as provided for in section 101(b)(1)(F) of the Act. (1) Except as provided in paragraph (a)(2) of this section, a child who meets the definition of orphan contained in section 101(b)(1)(F) of the Act is eligible for classification as the immediate relative of a U.S. citizen if: (i) The U.S. citizen seeking the child's immigration can document that the citizen (and his or her spouse, if any) are capable of providing, and will provide, proper care for an alien orphan; and (ii) The child is an orphan under section 101(b)(1)(F) of the Act. A U.S. citizen may submit the documentation necessary for each of these determinations separately or at one time, depending on when the orphan is identified. (2) Form I-600A or Form I-600 may not be filed under this section on or after the Convention effective date, as defined in 8 CFR 204.301, on behalf of a child who is habitually resident in a Convention country, as defined in 8 CFR 204.301. On or after the Convention effective date, USCIS may approve a Form I-600 on behalf of a child who is habitually resident in a Convention country only if the Form I-600A or Form I-600 was filed before the Convention effective date. (b) Definitions. Abandonment by both parents Adult member of the prospective adoptive parents' household Advanced processing application Application advanced processing application. Competent authority Desertion by both parents Disappearance of both parents Foreign-sending country Home study preparer Incapable of providing proper care foreign sending country. Loss from both parents Orphan petition Overseas site Petition orphan petition. Petitioner Prospective adoptive parents Separation from both parents Sole parent incapable of providing proper care Surviving parent incapable of providing proper care (c) Supporting documentation for an advanced processing application. (1) Required supporting documentation that must accompany the advanced processing application. (i) Evidence of the petitioner's United States citizenship as set forth in § 204.1(g) and, if the petitioner is married and the married couple is residing in the United States, evidence of the spouse's United States citizenship or lawful immigration status; (ii) A copy of the petitioner's marriage certificate to his or her spouse, if the petitioner is currently married; (iii) Evidence of legal termination of all previous marriages for the petitioner and/or spouse, if previously married; and (iv) Evidence of compliance with preadoption requirements, if any, of the State of the orphan's proposed residence in cases where it is known that there will be no adoption abroad, or that both members of the married prospective adoptive couple or the unmarried prospective adoptive parent will not personally see the child prior to, or during, the adoption abroad, and/or that the adoption abroad will not be full and final. Any preadoption requirements which cannot be met at the time the advanced processing application is filed because of operation of State law must be noted and explained when the application is filed. Preadoption requirements must be met at the time the petition is filed, except for those which cannot be met until the orphan arrives in the United States. (2) Home study. (3) After receipt of a properly filed advanced processing application, USCIS will fingerprint each member of the married prospective adoptive couple or the unmarried prospective adoptive parent, as prescribed in 8 CFR 103.16. USCIS will also fingerprint each additional adult member of the prospective adoptive parents' household, as prescribed in 8 CFR 103.16. USCIS may waive the requirement that each additional adult member of the prospective adoptive parents' household be fingerprinted when it determines that such adult is physically unable to be fingerprinted because of age or medical condition. (d) Supporting documentation for a petition for an identified orphan. (1) Filing an orphan petition after the advanced processing application has been approved. (i) Evidence of approval of the advanced processing application; (ii) The orphan's birth certificate, or if such a certificate is not available, an explanation together with other proof of identity and age; (iii) Evidence that the child is an orphan as appropriate to the case: (A) Evidence that the orphan has been abandoned or deserted by, separated or lost from both parents, or that both parents have disappeared as those terms are defined in paragraph (b) of this section; or (B) The death certificate(s) of the orphan's parent(s), if applicable; (C) If the orphan has only a sole or surviving parent, as defined in paragraph (b) of this section, evidence of this fact and evidence that the sole or surviving parent is incapable of providing for the orphan's care and has irrevocably released the orphan for emigration and adoption; and (iv) Evidence of adoption abroad or that the prospective adoptive parents have, or a person or entity working on their behalf has, custody of the orphan for emigration and adoption in accordance with the laws of the foreign-sending country: (A) A legible, certified copy of the adoption decree, if the orphan has been the subject of a full and final adoption abroad, and evidence that the unmarried petitioner, or married petitioner and spouse, saw the orphan prior to or during the adoption proceeding abroad; or (B) If the orphan is to be adopted in the United States because there was no adoption abroad, or the unmarried petitioner, or married petitioner and spouse, did not personally see the orphan prior to or during the adoption proceeding abroad, and/or the adoption abroad was not full and final: ( 1 ( 2 ( 3 ( 4 and (2) Filing an orphan petition while the advanced processing application is pending. (i) A photocopy of the fee receipt relating to the advanced processing application, or if not available, other evidence that the advanced processing application has been filed, such as a statement including the date when the application was filed; (ii) The home study, if not already submitted; and (iii) The supporting documentation for an orphan petition required in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this section. (3) Filing an orphan petition concurrently with the advanced processing application. (i) The supporting documentation for an advanced processing application required in paragraph (c) of this section; and (ii) The supporting documentation for an orphan petition required in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this section. (e) Home study requirements. (1) Personal interview(s) and home visit(s). (2) Assessment of the capabilities of the prospective adoptive parents to properly parent the orphan. (i) Assessment of the physical, mental, and emotional capabilities of the prospective adoptive parents to properly parent the orphan. (ii) Assessment of the finances of the prospective adoptive parents. (iii) History of abuse and/or violence Screening for abuse and violence 1 Checking available child abuse registries. ( i ( ii ( iii ( iv ( v ( 2 Inquiring about abuse and violence. (B) Information concerning history of abuse and/or violence. (C) Evidence of rehabilitation. (D) Failure to disclose or cooperate. 1 1 i 1 iii (iv) Previous rejection for adoption or prior unfavorable home study. (v) Criminal history. (3) Living accommodations. (4) Handicapped or special needs orphan. (5) Summary of the counseling given and plans for post-placement counseling. (6) Specific approval of the prospective adoptive parents for adoption. (7) Home study preparer's certification and statement of authority to conduct home studies. (8) Review of home study. (9) Home study updates and amendments Updates. (ii) Amendments. (10) “Grandfather” provision for home study. (f) State preadoption requirements General. (2) Child coming to be adopted in the United States. (3) Special circumstances. (4) Evidence of compliance. (g) Where to file. (h) Adjudication and decision “Grandfather” provision for advanced processing application and/or orphan petition. (2) Director's responsibility to make an independent decision in an advanced processing application. (3) Advanced processing application approved. (i) The prospective adoptive parents will be advised in writing. A notice of approval expires 15 months after the approval date. (ii) USCIS may extend the validity period for the approval of a Form I-600A if requested in accordance with 8 CFR 106.2(a)(32). Form I-600A/I-600 Supplement 3 cannot be used to: (A) Seek extension of an approval notice more than 90 days before the expiration of the validity period for the Form I-600A approval but must be filed on or before the date on which the validity period expires if the applicant seeks an extension. (B) Extend eligibility to proceed as a Hague Adoption Convention transition case beyond the first extension once the Convention enters into force for the new Convention country. (C) Request a change of country to a Hague Adoption Convention transition country for purposes of becoming a transition case if another country was already designated on the Form I-600A or the applicant previously changed countries. (iii) Form I-600A/I-600 Supplement 3 may only be used to request an increase in the number of children the applicant/petitioner is approved to adopt from a transition country if: the additional child is a birth sibling of a child whom the applicant/petitioner has adopted or is in the process of adopting, as a transition case, and is identified and petitioned for while the Form I-600A approval is valid, unless the new Convention country prohibits such birth sibling cases from proceeding as transition cases. (iv) If the Form I-600A approval is for more than one orphan, the prospective adoptive parents may file a petition for each of the additional children, to the maximum number approved. (v) It does not guarantee that the orphan petition will be approved. (4) Advanced processing application denied for failure to disclose history of abuse and/or violence, or for failure to disclose a criminal history, or for failure to cooperate in checking child abuse registries. 1 1 i 1 iii (5) Advanced processing denied for failure to submit home study. (6) Advanced processing application otherwise denied. (7) Advanced processing application deemed abandoned for failure to file orphan petition within the approval validity period of the advanced processing application. (i) The application will be deemed abandoned; (ii) Supporting documentation will be returned to the prospective adoptive parents, except for documentation submitted by a third party which will be returned to the third party, and documentation relating to the biometric checks; (iii) The director will dispose of documentation relating to biometrics checks in accordance with current policy; and (iv) Such abandonment will be without prejudice to a new filing at any time with fee. (8) Orphan petition approved by a stateside Service office. (9) Orphan petition approved by an overseas Service office. (10) Orphan petition approved at an immigrant visa-issuing post. (11) Orphan petition found to be “not readily approvable” by a consular officer. (12) Orphan petition denied: petitioner fails to establish that the child is an orphan. (13) Orphan petition denied: petitioner files orphan petition after the approval of the advanced processing application has expired. (14) Revocation. (ii) The approval of a Form I-600A or Form I-600 combination filing is automatically revoked if before the final decision on a beneficiary's application for admission with an immigrant visa or for adjustment of status: (A) The marriage of the applicant terminates; or (B) An unmarried applicant marries. (iii) Revocation is without prejudice to the filing of a new Form I-600A or Form I-600 combination filing, with fee, accompanied by a new or updated home study, reflecting the change in marital status. If a Form I-600 had already been filed based on the approval of the prior Form I-600A and a new Form I-600A is filed under this paragraph (h)(14) rather than a Form I-600 combination filing, then a new Form I-600 must also be filed. The new Form I-600 will be adjudicated only if the new Form I-600A is approved. (i) Child-buying as a ground for denial. (j) Telegraphic notifications Telegraphic notification of approval of advanced processing application. (2) Requesting a change in visa-issuing posts. (3) Telegraphic notification of approval of an orphan petition. (k) Other considerations I-604 investigations. (2) Authority of consular officers. (3) Child in the United States. (4) Liaison. [59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63 FR 12986, Mar. 17, 1998; 68 FR 46926, Aug. 7, 2003; 72 FR 56853, Oct. 4, 2007; 74 FR 26936, June 5, 2009; 76 FR 53782, Aug. 29, 2011; 85 FR 46921, Aug. 3, 2020; 89 FR 6395, Jan. 31, 2024] § 204.4 Amerasian child of a United States citizen. (a) Eligibility. (b) Filing petition. (c) Jurisdiction. (d) Two-stage processing Preliminary processing. (2) Final processing. (e) One-stage processing. (f) Evidence to support a petition for an Amerasian child of a United States citizen Two-stage processing of petition Preliminary processing. ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 (B) The beneficiary's photograph must be submitted. (C) The beneficiary's marriage certificate, if married, and evidence of the termination of any previous marriages, if applicable, is required. (D) If the beneficiary is under eighteen years of age, a written irrevocable release for emigration must be received from the beneficiary's mother or legal guardian. The mother or legal guardian must authorize the placing agency or agencies to make decisions necessary for the child's immediate care until the sponsor receives custody. Interim costs are the responsibility of the sponsor. The mother or legal guardian must show an understanding of the effects of the release and state before signing the release whether any money was paid or any coercion was used. The signature of the mother or legal guardian must be authenticated by the local registrar, the court of minors, or a United States immigration or consular officer. The release must include the mother's or legal guardian's full name, date and place of birth, and current or permanent address. (ii) Final processing. (B) Other documents necessary to support the petition are: ( 1 ( 2 (C) If the beneficiary is under eighteen years of age, evidence that a public, private, or state agency licensed in the United States to place children and actively involved, with recent experience, in the intercountry placement of children has arranged the beneficiary's placement in the United States. Evidence must also be provided that the sponsor with whom the beneficiary is being placed is able to accept the beneficiary for care in the sponsor's home under the laws of the state of the beneficiary's intended residence. The evidence must demonstrate the agency's capability, including financial capability, to arrange the placement as described in paragraph (f)(1) of this section, either directly or through cooperative agreement with other suitable provider(s) of service. (iii) Arrangements for placement of beneficiary under eighteen years of age. (B) A plan from the agency to provide follow-up services, including mediation and counselling, is required to ensure that the sponsor and the beneficiary have satisfactorily adjusted to the placement and to determine whether the terms of the sponsorship are being observed. A report from the agency concerning the placement, including information regarding any family separation or dislocation abroad that results from the placement, must also be submitted. In addition, the agency must submit to the Director, Outreach Program, Immigration and Naturalization Service, Washington, DC, within 90 days of each occurrence, reports of any breakdowns in sponsorship that occur, and reports of the steps taken to remedy these breakdowns. The petitioner must also submit a statement from the agency: ( 1 ( 2 ( 3 ( 4 (2) One-stage processing of petition. (g) Decision General. (2) Denial upon completion of preliminary processing. (i) Failure to establish that there is reason to believe the alien was fathered by a United States citizen; or (ii) Failure to meet the sponsorship requirements if the fingerprints of the sponsor, required in paragraph (f)(1) of this section, were submitted during the preliminary processing and the completed background check of the sponsor discloses adverse information resulting in a finding that the sponsor is not of good moral character. (3) Denial upon completion of final processing. (4) Denial upon completion of one-stage processing. (h) Classification of Public Law 97-359 Amerasian. (1) An unmarried beneficiary under the age of twenty-one is classified as the child of a United States citizen under section 201(b) of the Act; (2) An unmarried beneficiary twenty-one years of age or older is classified as the unmarried son or daughter of a United States citizen under section 203(a)(1) of the Act; and (3) A married beneficiary is classified as the married son or daughter of a United States citizen under section 203(a)(3) of the Act. (i) Enforcement of affidavit of financial support and intent to petition for legal custody. [57 FR 41066, Sept. 9, 1992, as amended at 63 FR 12986, Mar. 17, 1998; 74 FR 26936, June 5, 2009; 76 FR 53782, Aug. 29, 2011] § 204.5 Petitions for employment-based immigrants. (a) General. (1) Accepted for processing under the provisions of part 103; (2) Accompanied by any required individual labor certification, application for Schedule A designation, or evidence that the alien's occupation qualifies as a shortage occupation within the Department of Labor's Labor Market Information Pilot Program; and (3) Accompanied by any other required supporting documentation. (b) Jurisdiction. (c) Filing petition. (d) Priority date. (e) Retention of section 203(b)(1), (2), or (3) priority date. (2) The priority date of a petition may not be retained under paragraph (e)(1) of this section if at any time USCIS revokes the approval of the petition because of: (i) Fraud, or a willful misrepresentation of a material fact; (ii) Revocation by the Department of Labor of the approved permanent labor certification that accompanied the petition; (iii) Invalidation by USCIS or the Department of State of the permanent labor certification that accompanied the petition; or (iv) A determination by USCIS that petition approval was based on a material error. (3) A denied petition will not establish a priority date. (4) A priority date is not transferable to another alien. (5) A petition filed under section 204(a)(1)(F) of the Act for an alien shall remain valid with respect to a new employment offer as determined by USCIS under section 204(j) of the Act and 8 CFR 245.25. An alien will continue to be afforded the priority date of such petition, if the requirements of paragraph (e) of this section are met. (f) Maintaining the priority date of a third or sixth preference petition filed prior to October 1, 1991. (g) Initial evidence General. (2) Ability of prospective employer to pay wage. (h) Aliens with extraordinary ability. (2) Definition. Extraordinary ability (3) Initial evidence. (i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; (iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; (v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; (vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. (4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. (5) No offer of employment required. (i) Outstanding professors and researchers. (2) Definitions. Academic field Permanent, (3) Initial evidence. (i) Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following: (A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field; (B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members; (C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation; (D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; (E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or (F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field; (ii) If the standards in paragraph (i)(3)(i) of this section do not readily apply, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. (iii) Evidence that the alien has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and (iv) An offer of employment from a prospective United States employer. A labor certification is not required for this classification. The offer of employment shall be in the form of a letter from: (A) A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien's academic field; (B) A United States university or institution of higher learning offering the alien a permanent research position in the alien's academic field; or (C) A department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field. (j) Certain multinational executives and managers. (2) Definitions. Affiliate (A) One of two subsidiaries both of which are owned and controlled by the same parent or individual; (B) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity; or (C) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting' services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member. Doing business Executive capacity (A) Directs the management of the organization or a major component or function of the organization; (B) Establishes the goals and policies of the organization, component, or function; (C) Exercises wide latitude in discretionary decisionmaking; and (D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. Managerial capacity (A) Manages the organization, or a department, subdivision, function, or component of the organization; (B) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (C) If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (D) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority. Multinational Subsidiary (3) Initial evidence Required evidence. (A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or (B) If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity; (C) The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and (D) The prospective United States employer has been doing business for at least one year. (ii) Appropriate additional evidence. (4) Determining managerial or executive capacities Supervisors as managers. (ii) Staffing levels. (5) Offer of employment. (k) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. (2) Definitions. Advanced degree Exceptional ability in the sciences, arts, or business Profession (3) Initial evidence. (i) To show that the alien is a professional holding an advanced degree, the petition must be accompanied by: (A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or (B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty. (ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following: (A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; (B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought; (C) A license to practice the profession or certification for a particular profession or occupation; (D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability; (E) Evidence of membership in professional associations; or (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. (iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. (4) Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program General. (ii) Exemption from job offer. (l) Skilled workers, professionals, and other workers. (2) Definitions. Other worker Professional Skilled worker (3) Initial evidence Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program. (ii) Other documentation General. (B) Skilled workers. (C) Professionals. (D) Other workers. (4) Differentiating between skilled and other workers. i.e. (m) Religious workers. (1) For at least the two years immediately preceding the filing of the petition have been a member of a religious denomination that has a bona fide non-profit religious organization in the United States. (2) Be coming to the United States to work in a full time (average of at least 35 hours per week) compensated position in one of the following occupations as they are defined in paragraph (m)(5) of this section: (i) Solely in the vocation of a minister of that religious denomination; (ii) A religious vocation either in a professional or nonprofessional capacity; or (iii) A religious occupation either in a professional or nonprofessional capacity. (3) Be coming to work for a bona fide non-profit religious organization in the United States, or a bona fide organization which is affiliated with the religious denomination in the United States. (4) Have been working in one of the positions described in paragraph (m)(2) of this section, either abroad or in lawful immigration status in the United States, and after the age of 14 years continuously for at least the two-year period immediately preceding the filing of the petition. The prior religious work need not correspond precisely to the type of work to be performed. A break in the continuity of the work during the preceding two years will not affect eligibility so long as: (i) The alien was still employed as a religious worker; (ii) The break did not exceed two years; and (iii) The nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the alien must have been a member of the petitioner's denomination throughout the two years of qualifying employment. (5) Definitions. Bona fide non-profit religious organization in the United States Bona fide organization which is affiliated with the religious denomination Denominational membership Minister (A) Is fully authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct such religious worship and perform other duties usually performed by authorized members of the clergy of that denomination; (B) Is not a lay preacher or a person not authorized to perform duties usually performed by clergy; (C) Performs activities with a rational relationship to the religious calling of the minister; and (D) Works solely as a minister in the United States, which may include administrative duties incidental to the duties of a minister. Petition Religious denomination (A) A recognized common creed or statement of faith shared among the denomination's members; (B) A common form of worship; (C) A common formal code of doctrine and discipline; (D) Common religious services and ceremonies; (E) Common established places of religious worship or religious congregations; or (F) Comparable indicia of a bona fide religious denomination. Religious occupation (A) The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination. (B) The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination. (C) The duties do not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible. (D) Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status. Religious vocation Religious worker Tax-exempt organization (6) Filing requirements. (7) Attestation. (i) That the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation; (ii) The number of members of the prospective employer's organization; (iii) The number of employees who work at the same location where the beneficiary will be employed and a summary of the type of responsibilities of those employees. USCIS may request a list of all employees, their titles, and a brief description of their duties at its discretion; (iv) The number of aliens holding special immigrant or nonimmigrant religious worker status currently employed or employed within the past five years by the prospective employer's organization; (v) The number of special immigrant religious worker and nonimmigrant religious worker petitions and applications filed by or on behalf of any aliens for employment by the prospective employer in the past five years; (vi) The title of the position offered to the alien, the complete package of salaried or non-salaried compensation being offered, and a detailed description of the alien's proposed daily duties; (vii) That the alien will be employed at least 35 hours per week; (viii) The specific location(s) of the proposed employment; (ix) That the alien has worked as a religious worker for the two years immediately preceding the filing of the application and is otherwise qualified for the position offered; (x) That the alien has been a member of the denomination for at least two years immediately preceding the filing of the application; (xi) That the alien will not be engaged in secular employment, and any salaried or non-salaried compensation for the work will be paid to the alien by the attesting employer; and (xii) That the prospective employer has the ability and intention to compensate the alien at a level at which the alien and accompanying family members will not become public charges, and that funds to pay the alien's compensation do not include any monies obtained from the alien, excluding reasonable donations or tithing to the religious organization. (8) Evidence relating to the petitioning organization. (i) A currently valid determination letter from the Internal Revenue Service (IRS) establishing that the organization is a tax-exempt organization; or (ii) For a religious organization that is recognized as tax-exempt under a group tax-exemption, a currently valid determination letter from the IRS establishing that the group is tax-exempt; or (iii) For a bona fide organization that is affiliated with the religious denomination, if the organization was granted tax-exempt status under section 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, as something other than a religious organization: (A) A currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization; (B) Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization; (C) Organizational literature, such as books, articles, brochures, calendars, flyers and other literature describing the religious purpose and nature of the activities of the organization; and (D) A religious denomination certification. The religious organization must complete, sign and date a religious denomination certification certifying that the petitioning organization is affiliated with the religious denomination. The certification is to be submitted by the petitioner along with the petition. (9) Evidence relating to the qualifications of a minister. (i) A copy of the alien's certificate of ordination or similar documents reflecting acceptance of the alien's qualifications as a minister in the religious denomination; and (ii) Documents reflecting acceptance of the alien's qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination, or (iii) For denominations that do not require a prescribed theological education, evidence of: (A) The denomination's requirements for ordination to minister; (B) The duties allowed to be performed by virtue of ordination; (C) The denomination's levels of ordination, if any; and (D) The alien's completion of the denomination's requirements for ordination. (10) Evidence relating to compensation. (11) Evidence relating to the alien's prior employment. (i) Received salaried compensation, the petitioner must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns. (ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available. (iii) Received no salary but provided for his or her own support, and provided support for any dependents, the petitioner must show how support was maintained by submitting with the petition additional documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS. If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of the religious work. (12) Inspections, evaluations, verifications, and compliance reviews. (n) Closing action Approval. (2) Denial. (3) Validity of approved petitions. (o) Denial of petitions under section 204 of the Act based on a finding by the Department of Labor. (p) Eligibility for employment authorization in compelling circumstances Eligibility of principal alien. (i) In the case of an initial request for employment authorization, the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including the periods authorized by § 214.1(l)(l) and (2), as well as any other periods of admission authorized by this chapter before a validity period begins or after the expiration of a validity period, on the date the application for employment authorization (Form I-765) is filed; (ii) An immigrant visa is not authorized for issuance to the principal beneficiary based on his or her priority date on the date the application for employment authorization is filed; and (iii) USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization. (2) Eligibility of spouses and children. (3) Eligibility for renewal of employment authorization. (i) He or she is the principal beneficiary of an approved immigrant petition for classification under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act and either: (A) An immigrant visa is not authorized for issuance to the principal beneficiary based on his or her priority date on the date the application for employment authorization, (Form I-765) is filed; and USCIS determines, as a matter of discretion that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization; or (B) The difference between the principal beneficiary's priority date and the date upon which immigrant visas are authorized for issuance for the principal beneficiary's preference category and country of chargeability is 1 year or less according to the Department of State Visa Bulletin in effect on the date the application for employment authorization (Form I-765), is filed. For example, if the Department of State Visa Bulletin in effect on the date the renewal application is filed indicates immigrant visas are authorized for issuance for the applicable preference category and country of chargeability to individuals with priority dates earlier than November 1, 2000, USCIS may grant a renewal to a principal beneficiary whose priority date is on or between October 31, 1999 and October 31, 2001; or (ii) He or she is a family member, as described under paragraph (p)(2) of this section, of a principal beneficiary granted a renewal of employment authorization under paragraph (p)(3)(i) that remains valid, except that the family member need not be maintaining nonimmigrant status at the time the principal beneficiary applies for renewal of employment authorization under paragraph (p) of this section. A family member may file an application to renew employment authorization concurrently with an application to renew employment authorization filed by the principal beneficiary or while such application by the principal beneficiary is pending, but the family member's renewal application cannot be approved unless the principal beneficiary's application is granted. The validity period of a renewal of employment authorization granted to family members may not extend beyond the validity period of the renewal of employment authorization granted to the principal beneficiary. (4) Application for employment authorization. (A) File an application for employment authorization with USCIS, in accordance with 8 CFR 274a.13(a) and the form instructions. (B) Submit biometric information in accordance with the applicable form instructions. (ii) Employment authorization under this paragraph may be granted solely in 1-year increments. (5) Ineligibility for employment authorization. [56 FR 60905, Nov. 29, 1991, as amended at 59 FR 502, Jan. 5, 1994; 59 FR 27229, May 26, 1994; 60 FR 29753, June 6, 1995; 61 FR 33305, June 27, 1996; 67 FR 49563, July 31, 2002; 73 FR 72291, Nov. 26, 2008; 73 FR 78127, Dec. 19, 2008; 74 FR 26936, June 5, 2009; 81 FR 2083, Jan. 15, 2016; 81 FR 82484, Nov. 18, 2016; 85 FR 46922, Aug. 3, 2020; 89 FR 6396, Jan. 31, 2024] § 204.6 Petitions for employment creation immigrants. (a) General. (b) [Reserved] (c) Eligibility to file and continued eligibility. (d) Priority date. (1) Fraud or a willful misrepresentation of a material fact by the petitioner; or (2) A determination by USCIS that the petition approval was based on a material error. (e) Definitions. Capital Commercial enterprise Employee Full-time employment High employment area (i) Is not a targeted employment area; and (ii) Is an area with an unemployment rate significantly below the national average unemployment rates. Invest New Qualifying employee Regional center Regional Center Program Rural area Targeted employment area Troubled business (f) Required amounts of capital General. Federal Register (2) Targeted employment area. Federal Register (3) High employment area. Federal Register (g) Multiple investors General. (2) Employment creation allocation. (h) Establishment of a new commercial enterprise. (1) The creation of an original business; (2) The purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or (3) The expansion of an existing business through the investment of the required amount, so that a substantial change in the net worth or number of employees results from the investment of capital. Substantial change means a 40 percent increase either in the net worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. Establishment of a new commercial enterprise in this manner does not exempt the petitioner from the requirements of 8 CFR 204.6(j) (2) and (3) relating to the required amount of capital investment and the creation of full-time employment for ten qualifying employees. In the case of a capital investment in a troubled business, employment creation may meet the criteria set forth in 8 CFR 204.6(j)(4)(ii). (i) Special designation of a high unemployment area. (j) Initial evidence to accompany petition. (1) To show that a new commercial enterprise has been established by the petitioner in the United States, the petition must be accompanied by: (i) As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise; (ii) A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the State or municipality does not issue such a certificate, a statement to that effect; or (iii) Evidence that, as of a date certain after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth, number of employees. (2) To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Such evidence may include, but need not be limited to: (i) Bank statement(s) showing amount(s) deposited in United States business account(s) for the enterprise; (ii) Evidence of assets which have been purchased for use in the United States enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity; (iii) Evidence of property transferred from abroad for use in the United States enterprise, including U.S. Customs and Border Protection commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property; (iv) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder's request; or (v) Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable. (3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by: (i) Foreign business registration records; (ii) Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner; (iii) Evidence identifying any other source(s) of capital; or (iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years. (4) Job creation General. (A) Documentation consisting of photocopies of relevant tax records, Form I-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or (B) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired. (ii) Troubled business. (iii) Immigrant Investor Pilot Program. (5) Petitioner engagement. (i) A statement of the position title that the petitioner has or will have in the new enterprise and a complete description of the position's duties; (ii) Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; or (iii) Evidence that the petitioner is engaged in policy making activities. For purposes of this section, a petitioner will be considered sufficiently engaged in policy making activities if the petitioner is an equity holder in the new commercial enterprise and the organizational documents of the new commercial enterprise provide the petitioner with certain rights, powers, and duties normally granted to equity holders of the new commercial enterprise's type of entity in the jurisdiction in which the new commercial enterprise is organized. (6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by: (i) In the case of a rural area, evidence that the new commercial enterprise is principally doing business within an area not located within any standard metropolitan statistical area as designated by the Office of Management and Budget, nor within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States; or (ii) In the case of a high unemployment area: (A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, the county in which a city or town with a population of 20,000 or more is located, or the city or town with a population of 20,000 or more outside of a metropolitan statistical area, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of at least 150 percent of the national average rate; or (B) A description of the boundaries and the unemployment statistics for the area for which designation is sought as set forth in paragraph (i) of this section, and the reliable method or methods by which the unemployment statistics were obtained. (k) Decision. (l) [Reserved] (m) Immigrant Investor Pilot Program Scope. (2) Number of immigrant visas allocated. (3) Requirements for regional centers. (i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment; (ii) Provides in verifiable detail how jobs will be created indirectly through increased exports; (iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center; (iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and (v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables. (4) Submission of proposals to participate in the Immigrant Investor Pilot Program. (5) Decision to participate in the Immigrant Investor Pilot Program. (6) Continued participation requirements for regional centers. (A) Continue to meet the requirements of section 610(a) of the Appropriations Act. (B) Provide USCIS with updated information annually, and/or as otherwise requested by USCIS, to demonstrate that the regional center is continuing to promote economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment in the approved geographic area, using a form designated for this purpose; and (C) Pay the fee provided by 8 CFR 106.2. (ii) USCIS will issue a notice of intent to terminate the designation of a regional center in the program if: (A) A regional center fails to submit the information required in paragraph (m)(6)(i)(B) of this section, or pay the associated fee; or (B) USCIS determines that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. (iii) A notice of intent to terminate the designation of a regional center will be sent to the regional center and set forth the reasons for termination. (iv) The regional center will be provided 30 days from receipt of the notice of intent to terminate to rebut the ground or grounds stated in the notice of intent to terminate. (v) USCIS will notify the regional center of the final decision. If USCIS determines that the regional center's participation in the program should be terminated, USCIS will state the reasons for termination. The regional center may appeal the final termination decision in accordance with 8 CFR 103.3. (vi) A regional center may elect to withdraw from the program and request a termination of the regional center designation. The regional center must notify USCIS of such election in the form of a letter or as otherwise requested by USCIS. USCIS will notify the regional center of its decision regarding the withdrawal request in writing. (7) Requirements for alien entrepreneurs. (i) Exports. (ii) Indirect job creation. (8) Time for submission of petitions for classification as an alien entrepreneur under the Immigrant Investor Pilot Program. (9) Effect of termination of approval of regional center to participate in the Immigrant Investor Pilot Program. (n) Offering amendments or supplements. (1) Filed the petition for classification under section 203(b)(5) of the Act prior to November 21, 2019; (2) Was eligible for classification under 203(b)(5) of the Act at the time the petition was filed; and (3) Is eligible for classification under 203(b)(5) of the Act, including having no right to withdraw or rescind the investment or commitment to invest into such offering, at the time of adjudication of the petition. [56 FR 60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992; 58 FR 44608, 44609, Aug. 24, 1993; 74 FR 26937, June 5, 2009; 75 FR 58990, Sept. 24, 2010; 76 FR 53782, Aug. 29, 2011; 81 FR 73332, Oct. 24, 2016; 84 FR 35808, July 24, 2019; 85 FR 46922, Aug. 3, 2020] § 204.7 Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976. In order to be considered eligible for the benefits of the savings clause contained in section 9 of the Immigration and Nationality Act Amendments of 1976, an alien must show that the facts established prior to January 1, 1977 upon which the entitlement to such benefits was based continue to exist. [41 FR 55849, Dec. 23, 1976] § 204.8 [Reserved] § 204.9 Special immigrant status for certain aliens who have served honorably (or are enlisted to serve) in the Armed Forces of the United States for at least 12 years. (a) Petition for Armed Forces special immigrant. (1) Who may file. (2) Where to file. (b) Eligibility. (1) The alien has served honorably on active duty in the Armed Forces of the United States after October 15, 1978; (2) The alien's original lawful enlistment was outside the United States (under a treaty or agreement in effect October 1, 1991) for a period or periods aggregating— (i) Twelve years, and who, if separated from such service, was never separated except under honorable conditions; or (ii) Six years, in the case of an immigrant who is on active duty at the time of seeking special immigrant status under this rule and who has reenlisted to incur a total active duty service obligation of at least 12 years; (3) The alien is a national of an independent state which maintains a treaty or agreement allowing nationals of that state to enlist in the United States Armed Forces each year; and (4) The executive department under which the alien has served or is serving has recommended the granting of special immigrant status to the immigrant. (c) Derivative beneficiaries. (1) The relationship of spouse and child as defined in section 101(b)(1) of the Act must have existed at the time the principal alien's special immigrant application under section 101(a)(27)(K) of the Act was approved. The spouse or child of an immigrant classified as a section 103(a)(27)(K) special immigrant is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition. (2) When a spouse or child of an alien granted special immigrant status under section 101(a)(27)(K) of the Act is in the United States but was not included in the principal alien's application, the spouse or child shall file Form I-485, Application to Register Permanent Residence or Adjust Status, in accordance with the instructions on the form, regardless of the status of that spouse or child in the United States. The application must be supported by evidence that the principal alien has been granted special immigrant status under section 101(a)(27)(K) of the Act. (3) Revocation of derivative status. (d) Documents which must be submitted in support of the petition. (i) Certified proof of reenlistment (after 6 years of active duty service), or certification of past active duty status of 12 years, issued by the authorizing official of the executive department in which the applicant serves or has served, which certifies that the applicant has the required honorable active duty service and commitment. The authorizing official need not be at a level above the “local command”. The certification must be submitted with Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant; and (ii) Birth certificate of the applicant establishing that the applicant is a national of an independent state which maintains a treaty or agreement allowing nationals of that state to enlist in the United States Armed Forces each year. (2) Any documents submitted in support of the petition must meet the evidentiary requirements as set forth in 8 CFR part 103. (3) Submission of an original Form DD-214, Certificate of Release or Discharge from Active Duty; Form G-325b, Biographic Information; and Form N-426, Request for Certification of Military or Naval Service, is not required for approval of a petition for special immigrant status. (e) Decision. (f) Revocation under section 205 of the Act. [57 FR 33861, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993; 74 FR 26937, June 5, 2009] § 204.10 [Reserved] § 204.11 Special immigrant juvenile classification. (a) Definitions. Judicial determination Juvenile court Petition Petitioner State United States (b) Eligibility. (1) Is under 21 years of age at the time of filing the petition; (2) Is unmarried at the time of filing and adjudication; (3) Is physically present in the United States; (4) Is the subject of a juvenile court order(s) that meets the requirements under paragraph (c) of this section; and (5) Obtains consent from the Secretary of Homeland Security to classification as a special immigrant juvenile. For USCIS to consent, the request for SIJ classification must be bona fide, which requires the petitioner to establish that a primary reason the required juvenile court determinations were sought was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law. USCIS may withhold consent if evidence materially conflicts with the eligibility requirements in paragraph (b) of this section such that the record reflects that the request for SIJ classification was not bona fide. USCIS approval of the petition constitutes the granting of consent. (c) Juvenile court order(s) Court-ordered dependency or custody and parental reunification determination. (i) The juvenile court must have made at least one of the following judicial determinations related to the petitioner's custodial placement or dependency in accordance with State law governing such determinations: (A) Declared the petitioner dependent upon the juvenile court; or (B) Legally committed to or placed the petitioner under the custody of an agency or department of a State, or an individual or entity appointed by a State or juvenile court. (ii) The juvenile court must have made a judicial determination that parental reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under State law. The court is not required to terminate parental rights to determine that parental reunification is not viable. (2) Best interest determination. (ii) Nothing in this part should be construed as altering the standards for best interest determinations that juvenile court judges routinely apply under relevant State law. (3) Qualifying juvenile court order(s). (ii) The juvenile court order(s) must be in effect on the date the petitioner files the petition and continue through the time of adjudication of the petition, except when the juvenile court's jurisdiction over the petitioner terminated solely because: (A) The petitioner was adopted, placed in a permanent guardianship, or another child welfare permanency goal was reached, other than reunification with a parent or parents with whom the court previously found that reunification was not viable; or (B) The petitioner was the subject of a qualifying juvenile court order that was terminated based on age, provided the petitioner was under 21 years of age at the time of filing the petition. (d) Petition requirements. (1) Petition. (2) Evidence of age. (3) Juvenile court order(s). (4) Evidence of a similar basis. (i) The juvenile court's determination as to how the basis is legally similar to abuse, neglect, or abandonment under State law; or (ii) Other evidence that establishes the juvenile court made a judicial determination that the legal basis is similar to abuse, neglect, or abandonment under State law. (5) Evidentiary requirements for DHS consent. (i) The factual basis for the requisite determinations in paragraph (c) of this section; and (ii) The relief from parental abuse, neglect, abandonment, or a similar basis under State law granted or recognized by the juvenile court. Such relief may include: (A) The court-ordered custodial placement; or (B) The court-ordered dependency on the court for the provision of child welfare services and/or other court-ordered or court-recognized protective or remedial relief, including recognition of the petitioner's placement in the custody of the Department of Health and Human Services, Office of Refugee Resettlement. (6) U.S. Department of Health and Human Services (HHS) consent. (i) The petitioner is, or was previously, in the custody of HHS; and (ii) While in the custody of HHS, the petitioner obtained a juvenile court order that altered the petitioner's HHS custody or placement status. (e) No contact. (f) Interview. (g) Time for adjudication. (2) When a petition for special immigrant juvenile classification and an application for adjustment of status to lawful permanent resident are pending at the same time, a request for evidence relating to the separate application for adjustment of status will not stop or suspend the 180-day period for USCIS to decide on the petition for SIJ classification. (h) Decision. (i) No parental immigration rights based on special immigrant juvenile classification. (j) Revocation Automatic revocation. (i) Reunification of the beneficiary with one or both parents by virtue of a juvenile court order, where a juvenile court previously deemed reunification with that parent, or both parents, not viable due to abuse, neglect, abandonment, or a similar basis under State law; or (ii) Administrative or judicial proceedings determine that it is in the beneficiary's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of their parent(s). (2) Revocation on notice. [87 FR 13111, Mar. 8, 2022] § 204.12 How can second-preference immigrant physicians be granted a national interest waiver based on service in a medically underserved area or VA facility? (a) Which physicians qualify? (1) The physician agrees to work full-time (40 hours per week) in a clinical practice for an aggregate of 5 years (not including time served in J-1 nonimmigrant status); and (2) The service is; (i) In a geographical area or areas designated by the Secretary of Health and Human Services (HHS) as a Medically Underserved Area, a Primary Medical Health Professional Shortage Area, or a Mental Health Professional Shortage Area, and in a medical speciality that is within the scope of the Secretary's designation for the geographical area or areas; or (ii) At a health care facility under the jurisdiction of the Secretary of Veterans Affairs (VA); and (3) A Federal agency or the department of public health of a State, territory of the United States, or the District of Columbia, has previously determined that the physician's work in that area or facility is in the public interest. (b) Is there a time limit on how long the physician has to complete the required medical service? (2) If the physician must obtain authorization to accept employment before the physician may lawfully begin working, the physician must complete the aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of the Service issues the necessary employment authorization document. (c) Are there special requirements for these physicians? (1)(i) If the physician will be an employee, a full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a VA facility. The contract or letter must have been issued and dated within 6 months prior to the date the petition is filed. (ii) If the physician will establish his or her own practice, the physician's sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to actually take to establish the practice. (2) Evidence that the physician will provide full-time clinical medical service: (i) In a geographical area or areas designated by the Secretary of HHS as having a shortage of health care professionals and in a medical speciality that is within the scope of the Secretary's designation for the geographical area or areas; or (ii) In a facility under the jurisdiction of the Secretary of VA. (3) A letter (issued and dated within 6 months prior to the date on which the petition is filed) from a Federal agency or from the department of public health (or equivalent) of a State or territory of the United States or the District of Columbia, attesting that the alien physician's work is or will be in the public interest. (i) An attestation from a Federal agency must reflect the agency's knowledge of the alien's qualifications and the agency's background in making determinations on matters involving medical affairs so as to substantiate the finding that the alien's work is or will be in the public interest. (ii) An attestation from the public health department of a State, territory, or the District of Columbia must reflect that the agency has jurisdiction over the place where the alien physician intends to practice clinical medicine. If the alien physician intends to practice clinical medicine in more than one underserved area, attestations from each intended area of practice must be included. (4) Evidence that the alien physician meets the admissibility requirements established by section 212(a)(5)(B) of the Act. (5) Evidence of the Service-issued waivers, if applicable, of the requirements of sections 212(e) of the Act, if the alien physician has been a J-1 nonimmigrant receiving medical training within the United States. (d) How will the Service process petitions filed on different dates? Petitions filed on or after November 12, 1999. (2) Petitions pending on November 12, 1999. (3) Petitions denied on or after November 12, 1999. (4) Petitions filed prior to November 1, 1998. (5) Petitions filed and approved before November 12, 1999. (6) Petitions denied prior to November 12, 1999. (e) May physicians file adjustment of status applications? (f) May a physician practice clinical medicine in a different underserved area? (1) If the physician beneficiary has found a new employer desiring to petition the Service on the physician's behalf, the new petitioner must submit a new Form I-140 (with fee) with all the evidence required in paragraph (c) of this section, including a copy of the approval notice from the initial Form I-140. If approved, the new petition will be matched with the pending adjustment of status application. The beneficiary will retain the priority date from the initial Form I-140. The Service will calculate the amount of time the physician was between employers so as to adjust the count of the aggregate time served in an underserved area. This calculation will be based on the evidence the physician submits pursuant to the requirements of § 245.18(d) of this chapter. An approved change of practice to another underserved area does not constitute a new 6-year period in which the physician must complete the aggregate 5 years of service. (2) If the physician intends to establish his or her own practice, the physician must submit a new Form I-140 (with fee) will all the evidence required in paragraph (c) of this section, including the special requirement of paragraph (c)(1)(ii) of this section and a copy of the approval notice from the initial Form I-140. If approved, the new petition will be matched with the pending adjustment of status application. The beneficiary will retain the priority date from the initial Form I-140. The Service will calculate the amount of time the physician was between practices so as to adjust the count of the aggregate time served in an underserved area. This calculation will be based on the evidence the physician submits pursuant to the requirements of § 245.18(d) of this chapter. An approved change of practice to another underserved area does not constitute a new 6-year period in which the physician must complete the aggregate 5 years of service. (g) Do these provisions have any effect on physicians with foreign residence requirements? [65 FR 53893, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000] § 204.13 How can the International Broadcasting Bureau of the United States Broadcasting Board of Governors petition for a fourth preference special immigrant broadcaster? (a) Which broadcasters qualify? BBG grantee Broadcaster (b) Is there a yearly limit on the number of visas available for alien broadcasters petitioned by the BBG or a BBG grantee? (2) The alien broadcaster's accompanying spouse and children are not counted towards the 100 special broadcaster visa limit. (c) What form should the BBG use to petition for these special alien broadcasters? (d) Will the BBG need to submit supplemental evidence with Form I-360 for alien broadcasters? (i) The job title and a full description of the job to be performed; and (ii) The broadcasting expertise held by the alien, including how long the alien has been performing duties that relate to the prospective position or a statement as to how the alien possesses the necessary skills that make him or her qualified for the broadcasting-related position within the BBG or BBG grantee. (2) [Reserved] [66 FR 51821, Oct. 11, 2001, as amended at 74 FR 26937, June 5, 2009] Subpart B [Reserved] Subpart C—Intercountry Adoption of a Convention Adoptee Source: 72 FR 56854, Oct. 4, 2007, unless otherwise noted. § 204.300 Scope of this subpart. (a) Convention adoptees. (b) Orphan cases. (c) Adopted children. § 204.301 Definitions. The definitions in 22 CFR 96.2 apply to this subpart C. In addition, as used in this subpart C, the term: Abandonment (1) That a child's parent has willfully forsaken all parental rights, obligations, and claims to the child, as well as all custody of the child without intending to transfer, or without transferring, these rights to any specific individual(s) or entity. (2) The child's parent must have actually surrendered such rights, obligations, claims, control, and possession. (3) That a parent's knowledge that a specific person or persons may adopt a child does not void an abandonment; however, a purported act of abandonment cannot be conditioned on the child's adoption by that specific person or persons. (4) That if the parent(s) entrusted the child to a third party for custodial care in anticipation of, or preparation for, adoption, the third party (such as a governmental agency, a court of competent jurisdiction, an adoption agency, or an orphanage) must have been authorized under the Convention country's child welfare laws to act in such a capacity. (5) That, if the parent(s) entrusted the child to an orphanage, the parent(s) did not intend the placement to be merely temporary, with the intention of retaining the parent-child relationship, but that the child is abandoned if the parent(s) entrusted the child permanently and unconditionally to an orphanage. (6) That, although a written document from the parent(s) is not necessary to prove abandonment, if any written document signed by the parent(s) is presented to prove abandonment, the document must specify whether the parent(s) who signed the document was (were) able to read and understand the language in which the document is written. If the parent is not able to read or understand the language in which the document is written, then the document is not valid unless the document is accompanied by a declaration, signed by an identified individual, establishing that that identified individual is competent to translate the language in the document into a language that the parent understands and that the individual, on the date and at the place specified in the declaration, did in fact read and explain the document to the parent in a language that the parent understands. The declaration must also indicate the language used to provide this explanation. If the person who signed the declaration is an officer or employee of the Central Authority (but not of an agency or entity authorized to perform a Central Authority function by delegation) or any other governmental agency, the person must certify the truth of the facts stated in the declaration. Any other individual who signs a declaration must sign the declaration under penalty of perjury under United States law. Adoption Adult member of the household (1) Any individual other than the applicant, who has the same principal residence as the applicant and who had reached his or her 18th birthday on or before the date a Form I-800A is filed; or (2) Any person who has not yet reached his or her 18th birthday before the date a Form I-800A is filed, or who does not actually live at the same residence, but whose presence in the residence is relevant to the issue of suitability to adopt, if the officer adjudicating the Form I-800A concludes, based on the facts of the case, that it is necessary to obtain an evaluation of how that person's presence in the home affects the determination whether the applicant is suitable as the adoptive parent(s) of a Convention adoptee. Applicant Birth parent Central Authority Competent authority Convention Convention adoptee Convention adoption Convention country Convention effective date Custody for purposes of emigration and adoption exists when: (1) The competent authority of the country of a child's habitual residence has, by a judicial or administrative act (which may be either the act granting custody of the child or a separate judicial or administrative act), expressly authorized the petitioner, or an individual or entity acting on the petitioner's behalf, to take the child out of the country of the child's habitual residence and to bring the child to the United States for adoption in the United States. (2) If the custody order shows that custody was given to an individual or entity acting on the petitioner's behalf, the custody order must indicate that the child is to be adopted in the United States by the petitioner. (3) A foreign judicial or administrative act that is called an adoption but that does not terminate the legal parent-child relationship between the former parent(s) and the adopted child and does not create the permanent legal parent-child relationship between the petitioner and the adopted child will be deemed a grant of custody of the child for purposes of this part, but only if the judicial or administrative act expressly authorizes the custodian to take the child out of the country of the child's habitual residence and to bring the child to the United States for adoption in the United States by the petitioner. Deserted or desertion Disappeared or Disappearance Home study preparer Incapable of providing proper care Irrevocable consent (1) To qualify as an irrevocable consent under this definition, the document must specify whether the legal custodian is able to read and understand the language in which the consent is written. If the legal custodian is not able to read or understand the language in which the document is written, then the document does not qualify as an irrevocable consent unless the document is accompanied by a declaration, signed, by an identified individual, establishing that that identified individual is competent to translate the language in the irrevocable consent into a language that the parent understands, and that the individual, on the date and at the place specified in the declaration, did in fact read and explain the consent to the legal custodian in a language that the legal custodian understands. The declaration must also indicate the language used to provide this explanation. If the person who signed the declaration is an officer or employee of the Central Authority (but not of an agency or entity authorized to perform a Central Authority function by delegation) or any other governmental agency, the person must certify the truth of the facts stated in the declaration. Any other individual who signs a declaration must sign the declaration under penalty of perjury under United States law. (2) If more than one individual or entity is the child's legal custodian, the consent of each legal custodian may be recorded in one document, or in an additional document, but all documents, taken together, must show that each legal custodian has given the necessary irrevocable consent. Legal custodian Officer Parent Petitioner Sole parent (1) The child's mother, when the competent authority has determined that the child's father has abandoned or deserted the child, or has disappeared from the child's life; or (2) The child's father, when the competent authority has determined that the child's mother has abandoned or deserted the child, or has disappeared from the child's life; except that (3) A child's parent is not a sole parent if the child has acquired another parent within the meaning of section 101(b)(2) of the Act and this section. Suitability as adoptive parent(s) Surviving parent § 204.302 Role of service providers. (a) Who may provide services in Convention adoption cases. (b) Unauthorized practice of law prohibited. (c) Application of the Privacy Act. [72 FR 56854, Oct. 4, 2007, as amended at 76 FR 53782, Aug. 29, 2011] § 204.303 Determination of habitual residence. (a) U.S. Citizens. (1) Has his or her domicile in the United States, even if he or she is living temporarily abroad; or (2) Is not domiciled in the United States but establishes by a preponderance of the evidence that: (i) The citizen will have established a domicile in the United States on or before the date of the child's admission to the United States for permanent residence as a Convention adoptee; or (ii) The citizen indicates on the Form I-800 that the citizen intends to bring the child to the United States after adopting the child abroad, and before the child's 18th birthday, at which time the child will be eligible for, and will apply for, naturalization under section 322 of the Act and 8 CFR part 322. This option is not available if the child will be adopted in the United States. (b) Convention adoptees. § 204.304 Improper inducement prohibited. (a) Prohibited payments. (1) The placement of a child for adoption; (2) The consent of a parent, a legal custodian, individual, or agency to the adoption of a child; (3) The relinquishment of a child to a competent authority, or to an agency or person as defined in 22 CFR 96.2, for the purpose of adoption; or (4) The performance by the child's parent or parents of any act that makes the child a Convention adoptee. (b) Permissible payments. (1) The services of an adoption service provider in connection with an adoption; (2) Expenses incurred in locating a child for adoption; (3) Medical, hospital, nursing, pharmaceutical, travel, or other similar expenses incurred by a mother or her child in connection with the birth or any illness of the child; (4) Counseling services for a parent or a child for a reasonable time before and after the child's placement for adoption; (5) Expenses, in an amount commensurate with the living standards in the country of the child's habitual residence, for the care of the birth mother while pregnant and immediately following the birth of the child; (6) Expenses incurred in obtaining the home study; (7) Expenses incurred in obtaining the reports on the child as described in 8 CFR 204.313(d)(3) and (4); (8) Legal services, court costs, and travel or other administrative expenses connected with an adoption, including any legal services performed for a parent who consents to the adoption of a child or relinquishes the child to an agency; and (9) Any other service the payment for which the officer finds, on the basis of the facts of the case, was reasonably necessary. (c) Department of State requirements. § 204.305 State preadoption requirements. State preadoption requirements must be complied with when a child is coming into the State as a Convention adoptee to be adopted in the United States. A qualified Convention adoptee is deemed to be coming to be adopted in the United States if either of the following factors exists: (a) The applicant/petitioner will not complete the child's adoption abroad; or (b) In the case of a married applicant/petitioner, the child was adopted abroad only by one of the spouses, rather than by the spouses jointly, so that it will be necessary for the other spouse to adopt the child after the child's admission. § 204.306 Classification as an immediate relative based on a Convention adoption. (a) Unless 8 CFR 204.309 requires the denial of a Form I-800A or Form I-800, a child is eligible for classification as an immediate relative, as defined in section 201(b)(2)(A)(i) of the Act, on the basis of a Convention adoption, if the U.S. citizen who seeks to adopt the child establishes that: (1) The United States citizen is (or, if married, the United States citizen and the United States citizen's spouse are) eligible and suitable to adopt; and (2) The child is a Convention adoptee. (b) A U.S. citizen seeking to have USCIS classify an alien child as the U.S. citizen's child under section 101(b)(1)(G) of the Act must complete a two-step process: (1) First, the U.S. citizen must file a Form I-800A under 8 CFR 204.310; (2) Then, once USCIS has approved the Form I-800A and a child has been identified as an alien who may qualify as a Convention adoptee, the U.S. citizen must file a Form I-800 under 8 CFR 204.313. § 204.307 Who may file a Form I-800A or Form I-800. (a) Eligibility to file Form I-800A. (1) An unmarried United States citizen who is at least 24 years old and who is habitually resident in the United States, as determined under 8 CFR 204.303(a); or (2) A married United States citizen, who is habitually resident in the United States, as determined under 8 CFR 204.303(a), and whose spouse will also adopt any child adopted by the citizen based on the approval of a Form I-800A; and (3) The citizen's spouse must also be either a U.S. citizen, a non-citizen U.S. national, or an alien who, if living in the United States, holds a lawful status under U.S. immigration law. If an alien spouse is present in a lawful status other than the status of an alien lawfully admitted for permanent residence, such status will be a factor evaluated in determining whether the family's situation is sufficiently stable to support a finding that the applicant is suitable as the adoptive parents of a Convention adoptee. (b) Eligibility to file a Form I-800. (1) An unmarried United States citizen who is at least 25 years old and who is habitually resident in the United States, as determined under 8 CFR 204.303(a); or (2) A married United States citizen, who is habitually resident in the United States as determined under 8 CFR 204.303(a), and whose spouse will also adopt the child the citizen seeks to adopt. The spouse must be either a United States citizen or a non-citizen U.S. national or an alien who, if living in the United States, holds a lawful status under U.S. immigration law; and (3) The person has an approved and unexpired Form I-800A. (c) Exceptions. (i) The applicant filed a prior Form I-800A that USCIS denied under 8 CFR 204.309(a); or (ii) The applicant filed a prior Form I-600A under 8 CFR 204.3 that USCIS denied under 8 CFR 204.3(h)(4); or (iii) The petitioner filed a prior Form I-800 that USCIS denied under 8 CFR 204.309(b)(3); or (iv) The petitioner filed a prior Form I-600 under 8 CFR 204.3 that USCIS denied under 8 CFR 204.3(i). (2) This bar against filing a subsequent Form I-800A or Form I-800 expires one year after the date on which the decision denying the prior Form I-800A, I-600A, I-800 or I-600 became administratively final. If the applicant (for a Form I-800A or I-600A case) or the petitioner (for a Form I-800 or I-600 case) does not appeal the prior decision, the one-year period ends one year after the date of the original decision denying the prior Form I-800A, I-600A, I-800 or I-600. Any Form I-800A, or Form I-800 filed during this one-year period will be denied. If the applicant (for a Form I-800A or Form I-600A case) or petitioner (for a Form I-800 or I-600 case) appeals the prior decision, the bar to filing a new Form I-800A or I-800 applies while the appeal is pending and ends one year after the date of an Administrative Appeals Office decision affirming the denial. (3) Any facts underlying a prior denial of a Form I-800A, I-800, I-600A, or I-600 are relevant to the adjudication of any subsequently filed Form I-800A or Form I-800 that is filed after the expiration of this one year bar. § 204.308 Where to file Form I-800A or Form I-800. (a) Form I-800A. (b) Form I-800. (c) Final approval of Form I-800. (d) Use of electronic filing. § 204.309 Factors requiring denial of a Form I-800A or Form I-800. (a) Form I-800A. (1) The applicant or any additional adult member of the household failed to disclose to the home study preparer or to USCIS, or concealed or misrepresented, any fact(s) about the applicant or any additional member of the household concerning the arrest, conviction, or history of substance abuse, sexual abuse, child abuse, and/or family violence, or any other criminal history as an offender; the fact that an arrest or conviction or other criminal history has been expunged, sealed, pardoned, or the subject of any other amelioration does not relieve the applicant or additional adult member of the household of the obligation to disclose the arrest, conviction or other criminal history; (2) The applicant, or any additional adult member of the household, failed to cooperate in having available child abuse registries checked in accordance with 8 CFR 204.311; (3) The applicant, or any additional adult member of the household, failed to disclose, as required by 8 CFR 204.311, each and every prior adoption home study, whether completed or not, including those that did not favorably recommend for adoption or custodial care, the person(s) to whom the prior home study related; or (4) The applicant is barred by 8 CFR 204.307(c) from filing the Form I-800A. (b) Form I-800. (1) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a new Form I-800 filed with a new Form I-800A to reflect a change in marital status, the petitioner completed the adoption of the child, or acquired legal custody of the child for purposes of emigration and adoption, before the provisional approval of the Form I-800 under 8 CFR 204.313(g). This restriction will not apply if a competent authority in the country of the child's habitual residence voids, vacates, annuls, or terminates the adoption or grant of custody and then, after the provisional approval of the Form I-800, and after receipt of notice under article 5(c) of the Convention that the child is, or will be, authorized to enter and reside permanently in the United States, permits a new grant of adoption or custody. The prior adoption must be voided, vacated, annulled or otherwise terminated before the petitioner files a Form I-800. (2) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a new Form I-800 filed with a new Form I-800A to reflect a change in marital status, the petitioner, or any additional adult member of the household had met with, or had any other form of contact with, the child's parents, legal custodian, or other individual or entity who was responsible for the child's care when the contact occurred, unless the contact was permitted under this paragraph. An authorized adoption service provider's sharing of general information about a possible adoption placement is not “contact” for purposes of this section. Contact is permitted under this paragraph if: (i) The first such contact occurred only after USCIS had approved the Form I-800A filed by the petitioner, and after the competent authority of the Convention country had determined that the child is eligible for intercountry adoption and that the required consents to the adoption have been given; or (ii) The competent authority of the Convention country had permitted earlier contact, either in the particular instance or through laws or rules of general application, and the contact occurred only in compliance with the particular authorization or generally applicable laws or rules. If the petitioner first adopted the child without complying with the Convention, the competent authority's decision to permit the adoption to be vacated, and to allow the petitioner to adopt the child again after complying with the Convention, will also constitute approval of any prior contact; or (iii) The petitioner was already, before the adoption, the father, mother, son, daughter, brother, sister, uncle, aunt, first cousin (that is, the petitioner, or either spouse, in the case of a married petitioner had at least one grandparent in common with the child's parent), second cousin (that is, the petitioner, or either spouse, in the case of a married petitioner, had at least one great-grandparent in common with the child's parent) nephew, niece, husband, former husband, wife, former wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister of the child's parent(s). (3) The USCIS officer finds that the petitioner, or any individual or entity acting on behalf of the petitioner has engaged in any conduct related to the adoption or immigration of the child that is prohibited by 8 CFR 204.304, or that the petitioner has concealed or misrepresented any material facts concerning payments made in relation to the adoption; (4) The child is present in the United States, unless the petitioner, after compliance with the requirements of this subpart, either adopt(s) the child in the Convention country, or else, after having obtained custody of the child under the law of the Convention country for purposes of emigration and adoption, adopt(s) the child in the United States. This subpart does not require the child's actual return to the Convention country; whether to permit the child's adoption without the child's return is a matter to be determined by the Central Authority of the country of the child's habitual residence, but approval of a Form I-800 does not relieve an alien child of his or her ineligibility for adjustment of status under section 245 of the Act, if the child is present in the United States without inspection or is otherwise ineligible for adjustment of status. If the child is in the United States but is not eligible for adjustment of status, the Form I-800 may be provisionally approved only if the child will leave the United States after the provisional approval and apply for a visa abroad before the final approval of the Form I-800. (5) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a new Form I-800 filed with a new Form I-800A to reflect a change in marital status, the petitioner files the Form I-800: (i) Before the approval of a Form I-800A, or (ii) After the denial of a Form I-800A; or (iii) After the expiration of the approval of a Form I-800A; (6) The petitioner is barred by 8 CFR 204.307(c) from filing the Form I-800. (c) Notice of intent to deny. (d) Rebuttal of intent to deny. (1) The applicant or additional adult member of the household did, in fact, disclose the information; or (2) If it was an additional adult member of the household who failed to cooperate in the search of child abuse registries, or who failed to disclose to the home study preparer or to USCIS, or concealed or misrepresented, any fact(s) concerning the arrest, conviction, or history of substance abuse, sexual abuse or child abuse, and/or family violence, or other criminal history, or failed to disclose a prior home study, that that person is no longer a member of the household and that that person's conduct is no longer relevant to the suitability of the applicant as the adoptive parent of a Convention adoptee. § 204.310 Filing requirements for Form I-800A. (a) Completing and filing the Form. (1) Complete Form I-800A, including a Form I-800A Supplement 1 for each additional adult member of the household, in accordance with the instructions that accompany the Form I-800A. (2) Sign the Form I-800A personally. One spouse cannot sign for the other, even under a power of attorney or similar agency arrangement. (3) File the Form I-800A with the USCIS office that has jurisdiction under 8 CFR 204.308(a) to adjudicate the Form I-800A, together with: (i) The fee specified in 8 CFR 106.2 for the filing of Form I-800A; (ii) [Reserved] (iii) Evidence that the applicant is a United States citizen, as set forth in 8 CFR 204.1(g), or, in the case of a married applicant, evidence either that both spouses are citizens or, if only one spouse is a United States citizen, evidence of that person's citizenship and evidence that the other spouse, if he or she lives in the United States, is either a non-citizen United States national or an alien who holds a lawful status under U.S. immigration law. (iv) A copy of the current marriage certificate, unless the applicant is not married; (v) If the applicant has been married previously, a death certificate or divorce or dissolution decree to establish the legal termination of all previous marriages, regardless of current marital status; (vi) If the applicant is not married, his or her birth certificate, U.S. passport biographical information page, naturalization or citizenship certificate, or other evidence, to establish that he or she is at least 24 years old; (vii) A written description of the preadoption requirements, if any, of the State of the child's proposed residence in cases where it is known that any child the applicant may adopt will be adopted in the United States, and of the steps that have already been taken or that are planned to comply with these requirements. The written description must include a citation to the State statutes and regulations establishing the requirements. Any preadoption requirements which cannot be met at the time the Form I-800A is filed because of the operation of State law must be noted and explained when the Form I-800A is filed. (viii) A home study that meets the requirements of 8 CFR 204.311 and that bears the home study preparer's original signature. If the home study is not included with the Form I-800A, the director of the office that has jurisdiction to adjudicate the Form I-800A will make a written request for evidence, directing the applicant to submit the home study. If the applicant fails to submit the home study within the period specified in the request for evidence, the director of the office that has jurisdiction to adjudicate the Form I-800A will deny the Form I-800A. Denial of a Form I-800A under this paragraph for failure to submit a home study is not subject to appeal, but the applicant may file a new Form I-800A, accompanied by a new filing fee. (b) Biometrics. (c) Change in marital status. [72 FR 56854, Oct. 4, 2007, as amended at 76 FR 53782, Aug. 29, 2011; 85 FR 46922, Aug. 3, 2020] § 204.311 Convention adoption home study requirements. (a) Purpose. (b) Preparer. (c) Study requirements. (1) Be tailored to the particular situation of the applicant and to the specific Convention country in which the applicant intends to seek a child for adoption. For example, an applicant who has previously adopted children will require different preparation than an applicant who has no adopted children. A home study may address the applicant's suitability to adopt in more than one Convention country, but if the home study does so, the home study must separately assess the applicant's suitability as to each specific Convention country. (2) If there are any additional adult members of the household, identify each of them by name, alien registration number (if the individual has one), and date of birth. (3) Include an interview by the preparer of any additional adult member of the household and an assessment of him or her in light of the requirements of this section. (4) Be no more than 6 months old at the time the home study is submitted to USCIS. (5) Include the home study preparer's assessment of any potential problem areas, a copy of any outside evaluation(s), and the home study preparer's recommended restrictions, if any, on the characteristics of the child to be placed in the home. See 8 CFR 204.309(a) for the consequences of failure to disclose information or cooperate in completion of a home study. (6) Include the home study preparer's signature, in accordance with paragraph (f) of this section. (7) State the number of interviews and visits, the participants, date and location of each interview and visit, and the date and location of any other contacts with the applicant and any additional adult member of the household. (8) Summarize the pre-placement preparation and training already provided to the applicant concerning the issues specified in 22 CFR 96.48(a) and (b), the plans for future preparation and training with respect to those issues, or with respect to a particular child, as specified in 22 CFR 96.48(c), and the plans for post-placement monitoring specified in 22 CFR 96.50, in the event that the child will be adopted in the United States rather than abroad. (9) Specify whether the home study preparer made any referrals as described in paragraph (g)(4) of this section, and include a copy of the report resulting from each referral, the home study preparer's assessment of the impact of the report on the suitability of the applicant to adopt, and the home study preparer's recommended restrictions, if any, on the characteristics of the child to be placed in the home. (10) Include results of the checks conducted in accordance with paragraph (i) of this section including that no record was found to exist, that the State or foreign country will not release information to the home study preparer or anyone in the household, or that the State or foreign country does not have a child abuse registry. (11) Include each person's response to the questions regarding abuse and violence in accordance with paragraph (j) of this section. (12) Include a certified copy of the documentation showing the final disposition of each incident which resulted in arrest, indictment, conviction, and/or any other judicial or administrative action for anyone subject to the home study and a written statement submitted with the home study giving details, including any mitigating circumstances about each arrest, signed, under penalty of perjury, by the person to whom the arrest relates. (13) Contain an evaluation of the suitability of the home for adoptive placement of a child in light of any applicant's or additional adult member of the household's history of abuse and/or violence as an offender, whether this history is disclosed by an applicant or any additional adult member of the household or is discovered by home study preparer, regardless of the source of the home study preparer's discovery. A single incident of sexual abuse, child abuse, or family violence is sufficient to constitute a “history” of abuse and/or violence. (14) Contain an evaluation of the suitability of the home for adoptive placement of a child in light of disclosure by an applicant, or any additional adult member of the household, of a history of substance abuse. A person has a history of substance abuse if his or her current or past use of alcohol, controlled substances, or other substances impaired or impairs his or her ability to fulfill obligations at work, school, or home, or creates other social or interpersonal problems that may adversely affect the applicant's suitability as an adoptive parent. (15) Include a general description of the information disclosed in accordance with paragraph (m) of this section concerning the physical, mental, and emotional health of the applicant and of any additional adult member of the household. (16) Identify the agency involved in each prior or terminated home study in accordance with paragraph (o) of this section, when the prior home study process began, the date the prior home study was completed, and whether the prior home study recommended for or against finding the applicant or additional adult member of the household suitable for adoption, foster care, or other custodial care of a child. If a prior home study was terminated without completion, the current home study must indicate when the prior home study began, the date of termination, and the reason for the termination. (d) Duty to disclose. (i) Give true and complete information to the home study preparer. (ii) Disclose any arrest, conviction, or other adverse criminal history, whether in the United States or abroad, even if the record of the arrest, conviction or other adverse criminal history has been expunged, sealed, pardoned, or the subject of any other amelioration. A person with a criminal history may be able to establish sufficient rehabilitation. (iii) Disclose other relevant information, such as physical, mental or emotional health issues, or behavioral issues, as specified in paragraph (m) of this section. Such problems may not necessarily preclude approval of a Form I-800A, if, for example, they have been or are being successfully treated. (2) This duty of candor is an ongoing duty, and continues while the Form I-800A is pending, after the Form I-800A is approved, and while any subsequent Form I-800 is pending, and until there is a final decision admitting the Convention adoptee to the United States with a visa. The applicant and any additional adult member of the household must notify the home study preparer and USCIS of any new event or information that might warrant submission of an amended or updated home study. (e) State standards. (f) Home study preparer's signature. (1) The signer personally, and with the professional diligence reasonably necessary to protect the best interests of any child whom the applicant might adopt, either actually conducted or supervised the home study, including personal interview(s), the home visits, and all other aspects of the investigation needed to prepare the home study; if the signer did not personally conduct the home study, the person who actually did so must be identified; (2) The factual statements in the home study are true and correct, to the best of the signer's knowledge, information and belief; and (3) The home study preparer has advised the applicant of the duty of candor under paragraph (d) of this section, specifically including the on-going duty under paragraph (d)(2) of this section concerning disclosure of new events or information warranting submission of an updated or amended home study. (g) Personal interview(s) and home visit(s). (1) Conduct at least one interview in person, and at least one home visit, with the applicant. (2) Interview, at least once, each additional adult member of the household, as defined in 8 CFR 204.301. The interview with an additional adult member of the household should also be in person, unless the home study preparer determines that interviewing that individual in person is not reasonably feasible and explains in the home study the reason for this conclusion. (3) Provide information on and assess the suitability of the applicant as the adoptive parent of a Convention adoptee based on the applicant's background, family and medical history (including physical, mental and emotional health), social environment, reasons for adoption, ability to undertake an intercountry adoption, and the characteristics of the child(ren) for whom they would be qualified to care. (4) Refer the applicant to an appropriate licensed professional, such as a physician, psychiatrist, clinical psychologist, clinical social worker, or professional substance abuse counselor, for an evaluation and written report, if the home study preparer determines that there are areas beyond his or her expertise that need to be addressed. The home study preparer must also make such a referral if such a referral would be required for a domestic adoption under the law of the State of the applicant's actual or proposed place of residence in the United States. (5) Apply the requirements of this paragraph to each additional adult member of the household. (h) Financial considerations. (i) A description of the applicant's income, financial resources, debts, and expenses. (ii) A statement concerning the evidence that was considered to verify the source and amount of income and financial resources. (2) Any income designated for the support of one or more children in the applicant's care and custody, such as funds for foster care, or any income designated for the support of another member of the household, must not be counted towards the financial resources available for the support of a prospective adoptive child. (3) USCIS will not routinely require a detailed financial statement or supporting financial documents. However, should the need arise, USCIS reserves the right to ask for such detailed documentation. (i) Checking available child abuse registries. (1) If the home study preparer is allowed access to information from the child abuse registries, he or she must make the appropriate checks for the applicant and each additional adult member of the household; (2) If the State or foreign country requires the home study preparer to secure permission from the applicant and each additional adult member of the household before gaining access to information in such registries, the home study preparer must secure such permission from those individuals and make the appropriate checks; (3) If the State or foreign country will only release information directly to an individual to whom the information relates, then the applicant and the additional adult member of the household must secure such information and provide it to the home study preparer. (4) If the State or foreign country will release information neither to the home study preparer nor to the person to whom the information relates, or has not done so within 6 months of a written request for the information, this unavailability of information must be noted in the home study. (j) Inquiring about history of abuse or violence as an offender. (1) The dates of each arrest or conviction or history of substance abuse, sexual abuse or child abuse, and/or family violence; or, (2) If not resulting in an arrest, the date or time period (if occurring over an extended period of time) of each occurrence and (3) Details including any mitigating circumstances about each incident. Each statement must be signed, under penalty of perjury, by the person to whom the incident relates. (k) Criminal history. (l) Evidence of rehabilitation. (1) An evaluation of the seriousness of the arrest(s), conviction(s), or history of abuse, the number of such incidents, the length of time since the last incident, the offender's acceptance of responsibility for his or her conduct, and any type of counseling or rehabilitation programs which have been successfully completed, or (2) A written opinion from an appropriate licensed professional, such as a psychiatrist, clinical psychologist, or clinical social worker. (m) Assessment with respect to physical, mental and emotional health or behavioral issues. (n) Prior home study. (o) Living accommodations. (p) Handicapped or special needs child. (q) Addressing a Convention country's specific requirements. (r) Specific approval for adoption. (s) Home study preparer's authority to conduct home studies. (t) Review of home study. (2) When the home study is not performed in the first instance by an accredited agency or temporarily accredited agency, as defined in 22 CFR part 96, then an accredited agency or temporarily accredited agency, as defined in 22 CFR part 96, must review and approve the home study as specified in 22 CFR 96.47(c) before the home study is submitted to USCIS. This requirement for review and approval by an accredited agency or temporarily accredited agency does not apply to a home study that was actually prepared by a public domestic authority, as defined in 22 CFR 96.2. (u) Home study updates and amendments. (i) A significant change in the applicant's household, such as a change in residence, marital status, criminal history, financial resources; or (ii) The addition of one or more children in the applicant's home, whether through adoption or foster care, birth, or any other means. Even if the original home study provided for the adoption of more than one adopted child, the applicant must submit an amended home study recommending adoption of an additional child, because the addition of the already adopted child(ren) to the applicant's household is a significant change in the household that should be assessed before the adoption of any additional child(ren); (iii) The addition of other dependents or additional adult member(s) of the household to the family prior to the prospective child's immigration into the United States; (iv) A change resulting because the applicant is seeking to adopt a handicapped or special needs child, if the home study did not already address the applicant's suitability as the adoptive parent of a child with the particular handicap or special need; (v) A change to a different Convention country. This change requires the updated home study to address suitability under the requirements of the new Convention country; (vi) A lapse of more than 6 months between the date the home study is completed and the date it is submitted to USCIS; or (vii) A change to the child's proposed State of residence. The preadoption requirements of the new State must be complied with in the case of a child coming to the United States to be adopted. (2) Any updated or amended home study must: (i) Meet the requirements of this section; (ii) Be accompanied by a copy of the home study that is being updated or amended, including all prior updates and amendments; (iii) Include a statement from the preparer that he or she has reviewed the home study that is being updated or amended and is personally and fully aware of its contents; and (iv) Address whether the home study preparer recommends approval of the proposed adoption and the reasons for the recommendation. (3) If submission of an updated or amended home study becomes necessary before USCIS adjudicates the Form I-800A, the applicant may simply submit the updated or amended home study to the office that has jurisdiction over the Form I-800A. (4) If it becomes necessary to file an updated or amended home study after USCIS has approved the Form I-800A, the applicant must file a Form I-800A Supplement 3 with the filing fee specified in 8 CFR 106.2 and the amended or updated home study. If USCIS determines that the amended or updated home study shows that the applicant remains suitable as the adoptive parent(s) of a Convention adoptee, USCIS will issue a new approval notice that will expire on the same date as the original approval. If the applicant also wants to have USCIS extend the approval period for the Form I-800A, the applicant must submit the updated or amended home study with an extension request under 8 CFR 204.312(e)(3), rather than under this paragraph (u) of this section. (5) Each update must indicate that the home study preparer has updated the screening of the applicant and any additional adult member of the household under paragraphs (i) through (l) of this section, and must indicate the results of this updated screening. [72 FR 56854, Oct. 4, 2007, as amended at 85 FR 46922, Aug. 3, 2020] § 204.312 Adjudication of the Form I-800A. (a) USCIS action. (b) Evaluation of the home study. (c) Denial of application. (i) Eligible under 8 CFR 204.307(a) to file Form I-800A; or (ii) Suitable as the adoptive parent of a child from the Convention country. (2) Before denying a Form I-800A, the USCIS officer will comply with 8 CFR 103.2(b)(16), if required to do so under that provision, and may issue a request for evidence or a notice of intent to deny under 8 CFR 103.2(b)(8). (3) A denial will be in writing, giving the reason for the denial and notifying the applicant of the right to appeal, if any, as provided in 8 CFR 204.314. (4) It is for the Central Authority of the other Convention country to determine how its own adoption requirements, as disclosed in the home study under 8 CFR 204.311(q), should be applied in a given case. For this reason, the fact that the applicant may be ineligible to adopt in the other Convention country under those requirements, will not warrant the denial of a Form I-800A, if USCIS finds that the applicant has otherwise established eligibility and suitability as the adoptive parent of a Convention adoptee. (d) Approval notice. (i) The expiration date for the notice of approval, as determined under paragraph (e) of this section, and (ii) The name(s) and marital status of the applicant; and (iii) If the applicant is not married and not yet 25 years old, the applicant's date of birth. (2) Once USCIS approves the Form I-800A, or extends the validity period for a prior approval under paragraph (e) of this section, any submission of the home study to the Central Authority of the country of the child's habitual residence must consist of the entire and complete text of the same home study and of any updates or amendments submitted to USCIS. (e) Duration or revocation of approval. (2) (i) The approval of a Form I-800A is automatically revoked if before the final decision on a Convention adoptee's application for admission with an immigrant visa or for adjustment of status: (A) The marriage of the applicant terminates; or (B) An unmarried applicant marries; or (C) In the case of a married applicant, either spouse files with a USCIS or Department of State officer a written document withdrawing his or her signature on the Form I-800A. (ii) This revocation is without prejudice to the filing of a new Form I-800A, with fee, accompanied by a new or amended home study, reflecting the change in marital status. If a Form I-800 had already been filed based on the approval of the prior Form I-800A, a new Form I-800 must also be filed with the new Form I-800A under this paragraph. The new Form I-800 will be adjudicated only if the new Form I-800A is approved. The new Form I-800 will not be subject to denial under 8 CFR 204.309(b)(1) or (2), unless the original Form I-800 would have been subject to denial under either of those provisions. (3)(i) If the validity period for a Form I-800A approval is about to expire, the applicant: (A) May file Form I-800A Supplement 3 as described in 8 CFR 106.2(a)(48) to request an extension. (B) May not file a Form I-800A Supplement 3 seeking extension of an approval notice more than 90 days before the expiration of the validity period for the Form I-800A approval but must do so on or before the date on which the validity period expires if the applicant seeks an extension. (ii) Any Form I-800A Supplement 3 that is filed to obtain an extension or update of the approval of a Form I-800A or to request a change of Hague Convention countries must be accompanied by: (A) A statement, signed by the applicant under penalty of perjury, detailing any changes to the answers given to the questions on the original Form I-800A; (B) An updated or amended home study as required under 8 CFR 204.311(u); and (C) A photocopy of the Form I-800A approval notice. (iii) If USCIS continues to be satisfied that the applicant remains suitable as the adoptive parent of a Convention adoptee, USCIS will extend the approval of the Form I-800A for the same period of validity as the initial filing. (iv) There is no limit to the number of extensions that may be requested and granted under this section, so long as each request is supported by an updated or amended home study that continues to recommend approval of the applicant for intercountry adoption and USCIS continues to find that the applicant remain suitable as the adoptive parent(s) of a Convention adoptee. (4) In addition to the automatic revocation provided for in paragraph (e)(2) of this section, the approval of a Form I-800A may be revoked pursuant to 8 CFR 205.1 or 205.2. [72 FR 56854, Oct. 4, 2007, as amended at 85 FR 46922, Aug. 3, 2020; 89 FR 6396, Jan. 31, 2024] § 204.313 Filing and adjudication of a Form I-800. (a) When to file. (b) What to include on the Form. (i) The child will seek an immigrant visa, if the Form I-800 is approved, because the child will reside in the United States with the petitioner (in the case of a married petitioner, if only one spouse is a United States citizen, with that spouse) after the child's admission to the United States on the basis of the proposed adoption; or (ii) The child will seek a nonimmigrant visa, in order to travel to the United States to obtain naturalization under section 322 of the Act, because the petitioner intends to complete the adoption abroad and the petitioner and the child will continue to reside abroad immediately following the adoption, rather than residing in the United States with the petitioner. This option is not available if the child will be adopted in the United States. (2) In applying this paragraph (b), if a petitioner is a United States citizen who is domiciled in the United States, but who is posted abroad temporarily under official orders as a member of the Uniformed Services as defined in 5 U.S.C. 2101, or as a civilian officer or employee of the United States Government, the child will be deemed to be coming to the United States to reside in the United States with that petitioner. (c) Filing deadline. (2) If the appropriate Central Authority places the child with the petitioner for intercountry adoption more than 6 months after the child's 15th birthday but before the child's 16th birthday, the petitioner must still file the Form I-800 before the child's 16th birthday. If the evidence required by paragraph (d)(3) or (4) of this section is not yet available, instead of that evidence, the petitioner may submit a statement from the primary provider, signed under penalty of perjury under United States law, confirming that the Central Authority has, in fact, made the adoption placement on the date specified in the statement. Submission of a Form I-800 with this statement will satisfy the statutory requirement that the petition must be submitted before the child's 16th birthday, but no provisional or final approval of the Form I-800 will be granted until the evidence required by paragraph (d)(3) or (4) of this section has been submitted. When submitted, the evidence required by paragraph (d)(3) and (4) must affirmatively show that the Central Authority did, in fact, make the adoption placement decision before the child's 16th birthday. (3) If the Form I-800A was filed after the child's 15th birthday but before the child's 16th birthday, the filing date of the Form I-800A will be deemed to be the filing date of the Form I-800, provided the Form I-800 is filed not more than 180 days after the initial approval of the Form I-800A. (d) Required evidence. (1) The Form I-800A approval notice and, if applicable, proof that the approval period has been extended under 8 CFR 204.312(e); (2) A statement from the primary provider, as defined in 22 CFR 96.2, signed under penalty of perjury under United States law, indicating that all of the pre-placement preparation and training provided for in 22 CFR 96.48 has been completed; (3) The report required under article 16 of the Convention, specifying the child's name and date of birth, the reasons for making the adoption placement, and establishing that the competent authority has, as required under article 4 of the Convention: (i) Established that the child is eligible for adoption; (ii) Determined, after having given due consideration to the possibility of placing the child for adoption within the Convention country, that intercountry adoption is in the child's best interests; (iii) Ensured that the legal custodian, after having been counseled as required, concerning the effect of the child's adoption on the legal custodian's relationship to the child and on the child's legal relationship to his or her family of origin, has freely consented in writing to the child's adoption, in the required legal form; (iv) Ensured that if any individual or entity other than the legal custodian must consent to the child's adoption, this individual or entity, after having been counseled as required concerning the effect of the child's adoption, has freely consented in writing, in the required legal form, to the child's adoption; (v) Ensured that the child, after having been counseled as appropriate concerning the effects of the adoption; has freely consented in writing, in the required legal form, to the adoption, if the child is of an age that, under the law of the country of the child's habitual residence, makes the child's consent necessary, and that consideration was given to the child's wishes and opinions; and (vi) Ensured that no payment or inducement of any kind has been given to obtain the consents necessary for the adoption to be completed. (4) The report under paragraph (d)(3) of this section must be accompanied by: (i) A copy of the child's birth certificate, or secondary evidence of the child's age; and (ii) A copy of the irrevocable consent(s) signed by the legal custodian(s) and any other individual or entity who must consent to the child's adoption unless, as permitted under article 16 of the Convention, the law of the country of the child's habitual residence provides that their identities may not be disclosed, so long as the Central Authority of the country of the child's habitual residence certifies in its report that the required documents exist and that they establish the child's age and availability for adoption; (iii) A statement, signed under penalty of perjury by the primary provider (or an authorized representative if the primary provider is an agency or other juridical person), certifying that the report is a true, correct, and complete copy of the report obtained from the Central Authority of the Convention country; (iv) A summary of the information provided to the petitioner under 22 CFR 96.49(d) and (f) concerning the child's medical and social history. This summary, or a separate document, must include: (A) A statement concerning whether, from any examination as described in 22 CFR 96.49(e) or for any other reason, there is reason to believe that the child has any medical condition that makes the child inadmissible under section 212(a)(1) of the Act; if the medical information that is available at the provisional approval stage is not sufficient to assess whether the child may be inadmissible under section 212(a)(1), the submission of this information may be deferred until the petitioner seeks final approval of the Form I-800; (B) If both of the child's birth parents were the child's legal custodians and signed the irrevocable consent, the factual basis for determining that they are incapable of providing proper care for the child, as defined in 8 CFR 204.301; (C) Information about the circumstances of the other birth parent's death, if applicable, supported by a copy of the death certificate, unless paragraph (d)(4)(ii) of this section makes it unnecessary to provide a copy of the death certificate; (D) If a sole birth parent was the legal custodian, the circumstances leading to the determination that the other parent abandoned or deserted the child, or disappeared from the child's life; and (E) If the legal custodian was the child's prior adoptive parent(s) or any individual or entity other than the child's birth parent(s), the circumstances leading to the custodian's acquisition of custody of the child and the legal basis of that custody. (v) If the child will be adopted in the United States, the primary provider's written report, signed under penalty of perjury by the primary provider (or an authorized representative if the primary provider is an agency or other juridical person) detailing the primary adoption service provider's plan for post-placement duties, as specified in 22 CFR 96.50; and (5) If the child may be inadmissible under any provision of section 212(a) for which a waiver is available, a properly completed waiver application for each such ground; and (6) Either a Form I-864W, Intending Immigrant's I-864 Exemption, or a Form I-864, Affidavit of Support, as specified in 8 CFR 213a.2. (e) Obtaining the home study and supporting evidence. (f) Investigation. (g) Provisional approval. (i) The provisional approval will expressly state that the child will, upon adoption or acquisition of custody, be eligible for classification as a Convention adoptee, adjudicate any waiver application and (if any necessary waiver of inadmissibility is granted) direct the petitioner to obtain and present the evidence required under paragraph (h) of this section in order to obtain final approval of the Form I-800. (ii) The grant of a waiver of inadmissibility in conjunction with the provisional approval of a Form I-800 is conditioned upon the issuance of an immigrant or nonimmigrant visa for the child's admission to the United States based on the final approval of the same Form I-800. If the Form I-800 is finally denied or the immigrant or nonimmigrant visa application is denied, the waiver is void. (2) If the petitioner filed the Form I-800 with USCIS and the child will apply for an immigrant or nonimmigrant visa, then, upon provisional approval of the Form I-800, the officer will forward the notice of provisional approval, Form I-800, and all supporting evidence to the Department of State. If the child will apply for adjustment of status, USCIS will retain the record of proceeding. (h) Final approval. (i) If the child is adopted in the Convention country, the adoption decree or administrative order from the competent authority in the Convention country showing that the petitioner has adopted the child; in the case of a married petitioner, the decree or order must show that both spouses adopted the child; or (ii) If the child will be adopted in the United States: (A) The decree or administrative order from the competent authority in the Convention country giving custody of the child for purposes of emigration and adoption to the petitioner or to an individual or entity acting on behalf of the petitioner. In the case of a married petitioner, an adoption decree that shows that the child was adopted only by one spouse, but not by both, will be deemed to show that the petitioner has acquired sufficient custody to bring the child to the United States for adoption by the other spouse; (B) If not already provided before the provisional approval (because, for example, the petitioner thought the child would be adopted abroad, but that plan has changed so that the child will now be adopted in the United States), a statement from the primary provider, signed under penalty of perjury under United States law, summarizing the plan under 22 CFR 96.50 for monitoring of the placement until the adoption is finalized in the United States; (C) If not already provided before the provisional approval (because, for example, the petitioner thought the child would be adopted abroad, but that plan has changed so that the child will now be adopted in the United States), a written description of the preadoption requirements that apply to adoptions in the State of the child's proposed residence and a description of when and how, after the child's immigration, the petitioner intends to complete the child's adoption. The written description must include a citation to the relevant State statutes or regulations and specify how the petitioner intends to comply with any requirements that can be satisfied only after the child arrives in the United States. (2) If the Secretary of State, after reviewing the evidence that the petitioner provides under paragraph (h)(1)(i) or (ii) of this section, issues the certificate required under section 204(d)(2) of the Act, the Department of State officer who has jurisdiction over the child's visa application has authority, on behalf of USCIS, to grant final approval of a Form I-800. In the case of an alien who will apply for adjustment of status, the USCIS officer with jurisdiction of the adjustment application has authority to grant this final approval upon receiving the Secretary of State's certificate under section 204(d)(2) of the Act. (i) Denial of Form I-800. (2) The decision will be in writing, specifying the reason(s) for the denial and notifying the petitioner of the right to appeal, if any, as specified in 8 CFR 204.314. (3) If a Department of State officer finds, either at the provisional approval stage or the final approval stage, that the Form I-800 is “not clearly approvable,” or that 8 CFR 204.309(b) warrants denial of the Form I-800, the Department of State officer will forward the Form I-800 and accompanying evidence to the USCIS office with jurisdiction over the place of the child's habitual residence for review and decision. [72 FR 56854, Oct. 4, 2007, as amended at 85 FR 46922, Aug. 3, 2020; 89 FR 6396, Jan. 31, 2024] § 204.314 Appeal. (a) Decisions that may be appealed. (i) An applicant may appeal the denial of a Form I-800A (including the denial of a request to extend the prior approval of a Form I-800A) and (ii) A petitioner may appeal the denial of a Form I-800. (2) The provisions of 8 CFR 103.3, concerning how to file an appeal, and how USCIS adjudicates an appeal, apply to the appeal of a decision under this subpart C. (b) Decisions that may not be appealed. (1) Form I-800A because the Form I-800A was filed during any period during which 8 CFR 204.307(c) bars the filing of a Form I-800A; or (2) Form I-800A for failure to timely file a home study as required by 8 CFR 204.310(a)(3)(viii); or (3) Form I-800 that is denied because the Form I-800 was filed during any period during which 8 CFR 204.307(c) bars the filing of a Form I-800; (4) Form I-800 filed either before USCIS approved a Form I-800A or after the expiration of the approval of a Form I-800A.

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