Chapter 9 - Certain Afghan Nationals

Section 602(b) of the Afghan Allies Protection Act of 2009 (AAPA),^[1] created a new special immigrant category for Afghan nationals who worked for or on behalf of the U.S. government in Afghanistan. The President signed the AAPA into law on March 11, 2009.

A. Number of Visas

The AAPA for Afghans who worked for or on behalf of the U.S. government initially provided for a limit of 1,500 immigrant visas for principal noncitizens for each fiscal year from 2009 through 2013. However, for each fiscal year from 2010 through 2013, the total number was increased by the difference between 1,500 and the number of visas actually used during the immediately prior fiscal year. For example, if the numerical limitation for fiscal year 2013 is not reached, any unused numbers from that year may be used in fiscal year 2014.

Subsequently, the program has been extended multiple times and additional visas have been added.^[2]

B. Filing

Effective July 20, 2022, USCIS transitioned to the U.S. Department of State (DOS) the responsibility to adjudicate special immigrant petitions filed by Afghan citizens or nationals who were employed by or on behalf of the U.S. government or the International Security Assistance Force (ISAF) in Afghanistan. Afghan citizens or nationals seeking special immigrant classification on the basis of such employment who apply on or after July 20, 2022, must file the Petition for Special Immigrant Classification for Afghan SIV Applicants (Form DS-157)^[3] with DOS when applying for Chief of Mission (COM) approval.^[4]

Certain Afghan citizens or nationals who already started the special immigrant visa application process and received COM approval as of July 20, 2022 must still file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) with USCIS on their own behalf. In most cases, if the COM approval letter states that the signed Form DS-157 submitted with the application for COM approval by the principal applicant is approved as a petition and the principal applicant is classified as a special immigrant under INA 203(b)(4), the applicant need not file Form I-360.^[5]

On or after July 20, 2022, Afghan citizens or nationals only file a Form I-360 with USCIS, according to the form instructions,^[6] in the following circumstances:

• The Afghan citizen or national resides in the United States and received Chief of Mission (COM) approval from DOS before July 20, 2022;

• The Afghan citizen or national resides in the United States and received COM approval from DOS, but the Form DS-157 previously filed with DOS when the Afghan applied for COM approval was not signed; or

• The Afghan citizen or national resides inside or outside the United States and received COM approval from DOS but did not file a supplemental Form DS-157 when the Afghan applied for COM approval.

C. Eligibility

To obtain approval of a petition for special immigrant status under the AAPA, the petitioner must establish that the petitioner is a citizen or national of Afghanistan who was or is employed in Afghanistan:^[7]

• By or on behalf of the U.S. government; or

• By the ISAF (or any successor name for the ISAF) while:

  • Traveling off-base with U.S. military personnel stationed at the ISAF (or any successor name for the ISAF), to serve as an interpreter or translator for such U.S. military personnel; or

  • To perform activities for the U.S. military personnel stationed at the ISAF (or any successor name for the ISAF); and

• Was employed on or after October 7, 2001, and before the date established by the most recent program extension,^[8] for a period of not less than 1 year;^[9]

• Provided faithful and valuable service to the U.S. government, as documented in a positive recommendation or evaluation by the petitioner’s employer;

• Has experienced or is experiencing an ongoing serious threat as a consequence of the petitioner’s employment by the U.S. government;

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

• Is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence.^[10]

D. Documentation and Evidence

The petitioner must submit the following evidence along with a completed Form I-360:

• A copy of the petitioner’s passport, birth certificate, or national identification card showing that the petitioner is a citizen or national of Afghanistan, along with a certified English translation, if the document is in a foreign language;

• A positive recommendation from:

  • The U.S. citizen or national who is the petitioner’s senior supervisor;

  • The U.S. citizen or national who occupies the supervisor’s position; or

  • The U.S. citizen or national who is more senior if the senior supervisor has left the employer or has left Afghanistan, confirming employment of not less than 1 year beginning on or after October 7, 2001, if it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national;^[11]

• Proof of COM approval based on an independent review of this recommendation conducted by the COM or the COM’s designee of records maintained by the U.S. government or hiring organization or entity, to confirm employment and faithful and valuable service to the U.S. government;

• Proof of risk assessment conducted by the COM, or the COM’s designee, establishing that the petitioner has experienced or is experiencing an ongoing serious threat as a consequence of employment by the U.S. government;^[12] and

• If the petition is filed by a petitioner in the United States, a copy of the front and back of the petitioner’s Arrival/Departure Record (Form I-94).

E. Derivative Beneficiaries

The spouse and unmarried child(ren) younger than 21 years old accompanying or following to join a principal immigrant may be accorded the same special immigrant classification as the principal immigrant. Visas issued to derivative spouses and children do not count toward the numerical limitations on special immigrant visas for principal immigrants.

Deceased Principal Noncitizen (No Pending or Approved Petition)

Family members of the principal immigrant may still be eligible for special immigrant classification even if the principal immigrant dies.

A surviving spouse and children continue to remain eligible for special immigrant classification if the principal noncitizen had:

• Submitted a COM application^[13] that included the surviving relative(s) as an accompanying spouse or child; and

• The COM or COM designee revoked or terminated (or otherwise rendered invalid) such application due to the death of the principal noncitizen. If not for the death of the principal noncitizen, the COM or COM designee would have approved such application.

In this case, as long as the deceased principal noncitizen met the employment requirements for classification as a special immigrant^[14] as of the date the principal noncitizen filed the COM application for the first time, the COM or COM designee may continue to process the application.^[15]

Even if the principal noncitizen had not filed a COM application as described above on or after July 20, 2022, the surviving spouse and children may still be eligible for special immigrant classification by filing a COM application and Form DS-157 with DOS if the employment requirements were met as of the date of the principal noncitizen's death.^[16]

If the surviving spouse or children is required to file the Form I-360 after receiving COM approval,^[17] they must submit evidence of the qualifying relationship^[18] with the deceased principal noncitizen and that such relationship existed at the time of the principal noncitizen’s death.

Deceased Principal Noncitizen (Pending or Approved Petition)

Where the principal noncitizen had a pending or an approved Form I-360 or an approved Form DS-157 the eligibility of the surviving spouse and children is also affected by INA 204(l),^[19] since the surviving spouse and children are derivative beneficiaries of an employment-based immigrant visa petition.^[20] In light of the interrelationship between Section 602(b)(2)(C) of the AAPA and INA 204(l):

• USCIS may approve a pending immigrant visa petition under Section 602(b)filed on a Form I-360, despite the death of the principal noncitizen while the petition is pending; or

• After the death of the principal immigrant, USCIS may favorably exercise discretion to reinstate the approval of a visa petition under Section 602(b).

Footnotes

[1] See Title VI of Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009).

[2] For current program extensions and visa number information, see the Green Card for an Afghan Who Was Employed by or on Behalf of the U.S. Government webpage or the U.S. Department of State’s (DOS) Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government webpage. DOS updates its webpage periodically, but the webpage may not reflect the latest updates.

[3] Before July 20, 2022, the Form DS-157 was formerly known as the Supplement SIV Chief of Mission Application that was filed at the same time as the application for COM approval. For certain Afghan citizens or nationals who properly filed and signed a prior version of the Form DS-157, DOS may deem these previously filed forms as satisfying the petition requirement for classification as a special immigrant under INA 203(b)(4), as provided under Section 602(b)(1)(A) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009). For more information, see instructions on the DOS website on Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government.

[4] For more information, see DOS’s Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government webpage. This guidance only addresses USCIS processing and adjudication of the Form I-360.

[5] Some applicants outside the United States, who have not yet filed the Form I-360 may still be determined as having an approved Form DS-157 by DOS. For more information, see instructions on the DOS website on Special Immigrant Visas for Afghans-Who Were Employed by/on Behalf of the U.S. Government.

[6] Current information about filing locations, and other information about how to file can be found at the Form I-360 website.

[7] The surviving spouse and unmarried children under the age of 21 of a deceased principal noncitizen may be classified as special immigrants. See Section E, Derivative Beneficiaries [6 USCIS-PM H.9(E)].

[8] For current program extensions and visa number information, see the Green Card for an Afghan Who Was Employed by or on Behalf of the U.S. Government webpage or DOS’s Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government webpage. DOS updates its webpage periodically, but the webpage may not reflect the latest updates.

[9] The National Defense Authorization Act for Fiscal Year 2020 amended the definition of “principal alien” to be employed “by, or on behalf of, the United States Government[.]” See Section 1219(a) of Pub. L. 116-92 (PDF), 133 Stat. 1198, 1636 (December 20, 2019). Section 401 of the Emergency Security Supplemental Appropriations Act, 2021, Pub. L. 117-31 (PDF), 135 Stat. 309, 315 (July 30, 2021) amended the employment requirement for applicants employed by the ISAF (or any successor name for the ISAF) from 2 years to not less than 12 months.

[10] In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) relating to “public charge” do not apply.

[11] Under DOS policy, the COM may also accept recommendations from a non-U.S. citizen supervisor if the U.S. citizen or national supervisor is not available to provide a recommendation. See 9 FAM 502.5-12(B), Certain Iraqi and Afghan Nationals Employed by or on Behalf of the U.S. Government in Iraq or Afghanistan, and Certain Afghan Nationals Employed by the International Security Assistance Force or a Successor Mission.

[12] Under DOS policy, Afghan special immigrant visa (SIV) applicants are inherently under threat (regardless of whether their employment has ended or if they have relocated). Therefore, holding qualifying service in Afghanistan is enough to satisfy the ongoing serious threat requirement. See 9 FAM 502.5-12(B), Certain Iraqi and Afghan Nationals Employed by or on Behalf of the U.S. Government in Iraq or Afghanistan, and Certain Afghan Nationals Employed by the International Security Assistance Force or a Successor Mission.

[13] Section 403 of the Emergency Security Supplemental Appropriations Act of 2021, Pub. L. 117-31 (PDF), 135 Stat. 309, 318 (July 30, 2021) removed the requirement that, at the time of the principal noncitizen’s death, the deceased principal noncitizen have a petition for special immigrant classification approved, in order for the surviving spouse and children of the principal noncitizen to remain eligible to apply to obtain special immigrant classification. Instead, as of July 30, 2021, the principal noncitizen is only required to have, at the time of the principal noncitizen’s death, submitted an application for COM approval under Section 602(b) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009), or Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109–163 (PDF), 119 Stat. 3136, 3443 (January 6, 2006) that included the noncitizen as an accompanying spouse or child. Alternatively, the surviving spouse and children may submit a new application for COM approval if the principal noncitizen completed the employment requirements at the time of the noncitizen’s death.

[14] See Section 602(b) of the Afghan Allies Protection Act of 2009, Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009), as amended by the Emergency Security Supplemental Appropriations Act, 2021, Pub. L. 117-31 (PDF), 135 Stat. 309, 315, 318 (July 30, 2021).

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

[16] See 9 FAM 502.5-12(B).

[17] See Section B, Filing [6 USCIS-PM H.9(B)]

[18] Evidence to support the relationship between the surviving spouse or child(ren) and the deceased principal noncitizen includes primary evidence, such as marriage certificates (Nekah Khat), birth certificates, or tazkera (Afghan national identify document). If such primary evidence does not exist or is otherwise unavailable, the surviving spouse or child(ren) should explain the reasons for unavailability and submit secondary evidence of the qualifying relationship, such as school records or records of religious or medical records. If such secondary evidence is also not available, they may submit written testimony from a witness or witnesses with personal knowledge of the relevant facts. See 8 CFR 103.2(b)(2)(i). A full list of acceptable evidence to establish births, deaths, marriages, and divorces is on the Department of State Reciprocity and Civil Documents by Country for Afghanistan webpage.

[19] As amended by Section 568(d) of the DHS Appropriations Act, 2010, Pub. L. 111-83 (PDF), 123 Stat. 2142, 2187 (October 28, 2009).

[20] Filed under INA 203(b).