Volume 6 - Immigrants
Resources
20 CFR 656 - Labor Certification Process for Permanent Employment of Aliens in the United States
20 CFR 656.10 - General Instructions
20 CFR 656.11 - Substitutions and modifications to applications
20 CFR 656.15 - Applications for labor certification for Schedule A occupations
20 CFR 656.17 - Basic labor certification process
20 CFR 656.17(i) - Basic labor certification process
20 CFR 656.20 - Audit Procedures
20 CFR 656.26 - Board of Alien Labor Certification Appeals review of denials of labor certification
20 CFR 656.3 - Definitions
20 CFR 656.30(a) - Priority date
20 CFR 656.30(b) - Expiration of labor certifications
20 CFR 656.30(e) - Duplicate labor certifications
20 CFR 656.32 - Revocation of approved labor certifications
20 CFR 656.5 - Schedule A
26 U.S.C. 501 - Exemption from tax on corporations, certain trusts, etc.
72 FR 27904 (PDF) - Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity
73 FR 72275 (PDF) - Special immigrant and nonimmigrant religious workers
8 CFR 1.2 - Definitions
8 CFR 103.2(a)(7)(ii)(D) - Benefit requests submitted
8 CFR 103.3 - Denials, appeals, and precedent decisions
8 CFR 103.3(a) - Denials and appeals
8 CFR 103.5 - Reopening or reconsideration
8 CFR 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?
8 CFR 204.2(a)(1)(ii) - Fraudulent marriage prohibition
8 CFR 204.5(a)-(l), (n) - Petitions for employment-based immigrants
8 CFR 204.5(d) - Priority date
8 CFR 204.5(e) - Retention of section 203(b)(1), (2), or (3) priority date
8 CFR 204.5(g)(1) - Initial evidence
8 CFR 204.5(g)(2) - Ability of prospective employer to pay wage
8 CFR 204.5(h) - Aliens with extraordinary ability
8 CFR 204.5(j) - Outstanding professors or researchers
8 CFR 204.5(k) - Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability
8 CFR 204.5(l) - Skilled workers, professionals, and other workers
8 CFR 204.5 - Petitions for employment-based immigrants
8 CFR 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
8 CFR 205.1 - Automatic revocation
8 CFR 205.1(a)(3)(iv) - Reasons for automatic revocation
8 CFR 205.2 - Revocation on notice
8 CFR 214.2(f)(10)(ii)(C)(2)(i) - DHS-approved degree
8 CFR 216.3 - Termination of conditional permanent resident status
8 CFR 245.1(g) - Availability of immigrant visas under section 245 and priority dates
8 CFR 245.18 - Physicians with approved employment-based petitions serving in a medically underserved area or a Veterans Affairs facility
INA 101(a)(27) - Definitions of certain special immigrants
INA 101(a)(27)(J), 8 CFR 204.11 - Special immigrant juveniles
INA 101(a)(32) - Definition of “profession”
INA 101(b)(1) - Definition of child
INA 201 - Worldwide level of immigration
INA 202 - Numerical limitations on individual foreign states
INA 203 - Allocation of immigrant visas
INA 203(b)(1) - Priority workers
INA 203(b)(1)(A) - Aliens with extraordinary ability
INA 203(b)(1)(C) - Outstanding professors or researchers
INA 203(b)(1), (2), (3) - Preference allocation for employment-based immigrants
INA 203(b)(2) - Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability
INA 203(b)(2)(B) - Waiver of the job offer
INA 203(b)(2)(B)(i) - National Interest Waiver
INA 203(b)(2)(B)(ii) - Physicians working in shortage areas or veterans facilities
INA 203(b)(3) - Skilled workers, professionals, and other workers
INA 203(b)(4) - Certain special immigrants
INA 203(b)(5), 8 CFR 204.6 (PDF) - Employment creation immigrants
INA 203(g) - Allocation of immigrant visas; lists
INA 204(a)(1)(G)(i) - Petitioning procedure
INA 204(c) - Procedure for granting immigrant status; limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriage entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud
INA 204(j) - Job flexibility for long delayed applicants for adjustment of status to permanent residence
INA 205 - Revocation of approval of petitions; effective date
INA 212(a)(5) - Labor certification and qualifications for certain immigrants
INA 212(a)(5)(A) - Labor certification
INA 214(l) - Restrictions on waiver
INA 216A, 8 CFR 216.6 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
INA 245(h) - Adjustment of special immigrant juveniles
INA 287(h) - Protecting abused juveniles
Legal Settlement Notice (PDF, 44.09 KB) - Ruiz-Diaz v. United States
Pub. L. 102-232 (PDF) - Section 302 of the Miscellaneous and Technical Immigration and Nationality Amendments of 1991
Pub. L. 102-395 (as amended) (PDF) (PDF, 83.2 KB) - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993
Pub. L. 102-395 (PDF) - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993
Pub. L. 106-313 (PDF) - Section 106(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (Oct. 17, 2000) Increased job flexibility for long delayed applicants for adjustment of status
Pub. L. 109-163 (PDF) - Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, as amended – Special immigrant status for persons serving as translators with U.S. armed forces
Pub. L. 110-181 (PDF) - Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, as amended – Special immigrant status for certain Iraqis
Pub. L. 111-8 (PDF) - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009
Pub. L. 117-103 (PDF) - Consolidated Appropriations Act of 2022 - Division BB - EB–5 Reform and Integrity Act of 2022
Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act (PDF) - Penalties for disclosure of information
Appendices
The content in this appendix reflects USCIS policy as it existed before the EB-5 Reform and Integrity Act of 2022, Division BB of the Consolidated Appropriations Act of 2022, Pub.L. 117-103 (PDF), 136 Stat. 49, 1070 (March 15, 2022) for reference. For current USCIS policy on regional centers, see Chapter 4, Regional Center Applications [6 USCIS-PM G.4], Chapter 5, Project Applications [6 USCIS-PM G.5], and Chapter 6, Direct and Third Party Promoters [6 USCIS-PM G.6].
The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area. The regional center model can offer an immigrant investor already defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. If the new commercial enterprise is located within the geographic area, and falls within the economic scope of the defined regional center, reasonable methodologies can be used to demonstrate indirect job creation.[1] A regional center can be associated with one or more new commercial enterprises.
A regional center seeking to participate in the Regional Center Program must submit a proposal using the Application For Regional Center Under the Immigrant Investor Program (Form I-924).
USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The statute further provides that a regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones.
In addition, the establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have on the area.[2]
The regulations state that the proposal must:
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Clearly describe 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;
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Provide in verifiable detail how jobs will be created directly or indirectly;
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Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;
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Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;
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Include a detailed prediction[3] how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and
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Be 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, or multiplier tables.[4]
The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the application filing.[5]
A. Regional Center Application Proposals
The regional center proposal must include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:
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Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;
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Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;
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Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and
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Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.
Geographic Area
An officer reviews the proposed geographic boundaries of a new regional center to determine if they are acceptable. USCIS considers geographic boundaries acceptable if the regional center applicant can establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area.[6] The determination is fact-specific, and the law does not require any particular form of evidence, such as a county-by-county analysis.
In addition, a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.[7] To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities can include but are not limited to:
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Regional connectivity;
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The labor pool and supply chain; and
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Interdependence between projects.
Moreover, in assessing the likelihood that the proposed economic activity will promote economic growth in the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographical region of the United States.[8] The regional center applicant must present an economic analysis of its proposed economic activity in the proposed geographic area that is supported by economically or statistically valid forecasting tools.[9] The Form I-924 instructions provide further information regarding the requirements of the economic analysis.
B. Types of Regional Center Projects
An actual project refers to a specific project proposal that is supported by a Matter of Ho (PDF) compliant business plan.[10]
A hypothetical project refers to a project proposal that is not supported by a Matter of Ho (PDF) compliant business plan.
The term exemplar refers to a sample Immigrant Petition by Alien Investor (Form I-526), filed with Form I-924 for an actual project. This type of regional center proposal contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS reviews to determine if they are in compliance with established eligibility requirements.
1. Hypothetical Projects
If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. A regional center applicant seeking review of a hypothetical project should clarify in the Form I-924 submission that the project is hypothetical. General proposals and predictions may include a description of the project parameters, such as:
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Proposed project activities, industries, locations, and timelines;
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A general market analysis of the proposed job creating activities and explanation regarding how the proposed project activities are likely to promote economic growth and create jobs; and
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A description, along with supporting evidence, of the regional center principals’ relevant experience and expertise.
While hypothetical project submissions are sufficient for regional center designation, previous determinations based on hypothetical projects will not receive deference. Actual projects will receive a de novo officer review during subsequent filings (for example, through the adjudication of an amended Form I-924 application, including the actual project details or the first Form I-526 immigrant investor petition).
Organizational and transactional supporting documents are not required for a hypothetical project. If a regional center applicant desires a compliance review of organizational and transactional documents, the application must include an actual project with a Matter of Ho (PDF) compliant business plan and an exemplar immigrant investor petition.
2. Actual Projects
Applications for regional center designation based on actual projects may require more details than a hypothetical project to demonstrate that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. A regional center applicant seeking review of an actual project should clarify in the Form I-924 submission that the project is actual.
Actual projects require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created. Absent fraud, willful misrepresentation, or a legal deficiency,[11] USCIS defers to prior determinations based on actual projects when evaluating subsequent filings under the project involving the same material facts and issues.
Organizational and transactional documents for the new commercial enterprise are not required. If a regional center applicant desires review of organizational and transactional documents for program compliance, the regional center application must be accompanied by an exemplar Form I-526 immigrant investor petition.
If regional center applicants opt not to file a Form I-924 amendment, the investor should identify his or her Form I-526 immigrant investor petition as an actual project being presented for the first time. Additionally, the immigrant petition should contain an affirmative statement signed by a regional center principal confirming that the regional center is aware of the specific project being presented for the first time as part of the immigrant investor petition.
In cases where the regional center application is filed based on actual projects that do not contain sufficient verifiable detail, USCIS may approve the projects as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, do not receive deference in subsequent filings.
In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should identify which projects have been approved as actual projects and will be accorded deference. The approval notice should also identify projects that have been approved as hypothetical projects but will not be accorded deference.
3. Exemplar Filings
Regional center applications, based on actual projects, including a Form I-526 immigrant investor exemplar petition, require more details than a hypothetical or actual project submitted without an exemplar. A regional center applicant seeking review of an exemplar should state that the project is an actual project with a Form I-526 exemplar.
Exemplar filings require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created, as well as organizational and transactional documents for the new commercial enterprise.
Absent fraud, willful misrepresentation, or a legal deficiency, officer determinations based on exemplar filings are accorded deference in subsequent filings under the project with the same material facts and issues.
While an amended Form I-924 is not required to perfect a hypothetical project once the actual project details are available, some applicants may choose to file an amended Form I-924 application with a Form I-526 exemplar to obtain a favorable determination. These exemplar filings are accorded deference in subsequent related filings, absent material change, fraud, willful misrepresentation, or a legally deficient determination.
C. Regional Center Annual Reporting
Designated regional centers must file a Supplement to Form I-924 (Form I-924A) annually that demonstrates continued eligibility for designation as a regional center in the EB-5 Program.[12] The regional center must file the form within 90 days of the end of the fiscal year (between October 1 and December 29). The Form I-924A instructions specifically list required information that must be submitted.[13]
If the regional center fails to file the required annual report, USCIS issues a Notice of Intent to Terminate (NOIT) to the regional center for failing to provide the required information. This may ultimately result in the termination of the regional center’s designation if the regional center fails to respond or does not file a response which adequately demonstrates continued eligibility.
D. Regional Center Amendments
Because businesses’ strategies constantly evolve, with new opportunities identified and existing plans improved, a regional center may amend a previously approved designation. The Form I-924 instructions provide information regarding the submission of regional center amendment requests.[14]
To improve processing efficiencies and predictability in subsequent filings, many regional centers may seek to amend the Form I-924 approval to reflect changes in economic analysis and job creation estimates. Such amendments, however, are not required in order for individual investors to proceed with filing the immigrant petitions or petitions to remove conditions on residence based on the additional jobs created, or to be created, in additional industries.
Formal amendments to an approved regional center’s designation are not required when a regional center changes its industries of focus, business plans, or economic methodologies; however, a regional center may find it advantageous to seek USCIS approval of such changes before they are adjudicated in individual immigrant investor petitions.
Requests to Change Geographic Area
When a regional center requests to expand its geographic area, the proposed geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.[15]
Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which requires that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.
If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013.[16] That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment.
E. Termination of a Regional Center Designation
USCIS issues a NOIT if:
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USCIS determines that a 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; or
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The regional center fails to submit required information to USCIS.[17]
The NOIT will provide the grounds for termination and provide at least 30 days from receipt of the NOIT for the regional center to respond to the allegations in the NOIT. The regional center may offer evidence to contest the allegations in the NOIT. If the regional center overcomes the allegations in the NOIT, USCIS issues a Notice of Reaffirmation that affirms the regional center’s designation.
If the regional center fails to overcome the allegations in the NOIT, USCIS terminates the regional center’s participation in the Regional Center Program. In this case, USCIS notifies the regional center of the termination, the reasons for termination, and the right to file a motion, appeal, or both. The regional center may appeal the decision to USCIS’ Administrative Appeals Office within 30 days after service of notice (33 days, if the notice was mailed).[18]
Footnotes
[^ 1] For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].
[^ 2] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.
[^ 3] An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions.
[^ 4] See 8 CFR 204.6(m)(3).
[^ 5] For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].
[^ 6] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth).
[^ 7] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.
[^ 8] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i).
[^ 9] See 8 CFR 204.6(m)(3).
[^ 10] See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].
[^ 11] Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication.
[^ 12] See 8 CFR 204.6(m)(6).
[^ 13] See Form I-924A instructions.
[^ 14] See Form I-924 instructions.
[^ 15] For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].
[^ 16] See EB-5 Adjudication Policy Memo, PM-602-0083, issued May 30, 2013.
[^ 17] See 8 CFR 204.6(m)(6).
[^ 18] See 8 CFR 103.3. See 8 CFR 204.6(m)(6).
There is no specific form that petitioning employers must use to comply with the notice of filing requirements for Schedule A petitions. The following is a sample notice of filing that petitioners may elect to use in the workplace. USCIS developed this sample for stakeholders’ convenience. It is not intended to be relied upon to create or confer any right(s) or benefit(s), substantive or procedural, enforceable at law by any person or other party in benefit applications before USCIS, in removal proceedings, in litigation with the United States, or in any other form or manner.
Officers should accept notices that are modeled after the sample, but should not require use of the exact sample. Petitioning employers may use other notice formats as long as they comply with the DOL regulations.
Notice of the Filing of the Application for Permanent Employment Certification
This notice is being provided as a result of the filing of an Application for Permanent Employment Certification (ETA Form 9089). The employer intends to permanently employ a foreign national in the job opportunity described below.
Any person may provide documentary evidence bearing on the application to the Certifying Officer of the U.S. Department of Labor. The address of the Certifying Officer is:
_____________________________________________________________________
This Notice of Filing will be posted between 30 and 180 days before filing the permanent labor certification application.
INFORMATION ABOUT THE JOB OPPORTUNITY
EMPLOYER’S NAME: _________________________________________________________
POSITION TITLE: ____________________________________________________________
POSITION DUTIES: __________________________________________________________
___________________________________________________________________________
RATE OF PAY: $________ per ____________
ADDRESS(ES) OF EMPLOYMENT: ______________________________________________
____________________________________________________________________________
EMPLOYER STATES:
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There is no bargaining representative for the job opportunity with the employer in the location(s) of intended employment.
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This notice was clearly visible and unobstructed while posted. It was posted for at least ten (10) consecutive business days in a conspicuous location in the workplace, where the employer’s U.S. workers could readily read the posted notice, including but not limited to locations in the immediate vicinity of the wage and hour notices.
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DATE POSTED: __________________________________
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DATE REMOVED: ________________________________
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LOCATION(S) WHERE THE NOTICE WAS POSTED: ___________________________________________________________________________________________________________________________
[SIGNATURE] DATE
___________________________ ___________________________
[PRINTED NAME AND TITLE]
___________________________
On November 19, 2019, USCIS provided more clarity on several requirements for special immigrant juvenile (SIJ) classification, including the following:
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USCIS reaffirmed and clarified that the petitioner must have been a juvenile under the relevant state law definition of “juvenile” (or equivalent term) when the juvenile court order was issued;[1]
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USCIS clarified the definition of a juvenile court for purposes of SIJ classification and provides examples of the types of evidence that may be provided to establish that a court is acting as a qualifying juvenile court;[2]
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USCIS clarified guidance on what constitutes a qualifying “dependency” or “custody” determination from the juvenile court for the purposes of SIJ classification eligibility;[3]
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USCIS clarified guidance on the statutorily-mandated USCIS consent function;[4]
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USCIS clarified guidance on what qualifies as a similar basis to abuse, neglect, or abandonment under state law;[5] and
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USCIS reaffirmed for officers that the agency no longer requires that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.[6]
These updates and clarifications of current USCIS policy guidance are based on USCIS interpretation of the applicable terms in DHS regulations and the Immigration and Nationality Act (INA). An agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue an interpretive rule or one that amends or repeals an existing interpretive rule,[7] or when modifying rules of agency organization, procedure, or practice.[8] However, the instruction to not require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification was a policy change in response to the resource strain of ongoing litigation. As with all other policy guidance USCIS issues, these updates and clarifications to officers do not add to the substantive regulations, create legally binding rights, obligations, or change the substantive standards by which USCIS will evaluate SIJ petitions. Accordingly, USCIS published no Federal Register notices requesting public comment because public notice is not required for these internal policy changes and clarifications.
Unfair Surprise and Reliance Interest
An agency can change its interpretation of a regulation at different times in its history as long as the interpretative changes create no unfair surprise.[9] In this case, USCIS is not changing its policy regarding SIJ adjudications. USCIS is updating this guidance to clarify what the law and regulations permit or require because of potential confusion. It has never been USCIS official policy to grant SIJ classification based on a state judge’s order that is sought primarily to permit the noncitizen to obtain lawful immigration status.
USCIS has analyzed the potential for and taken into account serious reliance interests that may be engendered by the practices USCIS officers may have followed prior to this clarification. USCIS acknowledges that a person who may have been approved for SIJ classification before this policy alert may no longer be approved by an officer following this clarifying guidance in rendering their decision. An advocate or representative of an SIJ petitioner, not knowing of this policy, may erroneously petition the state court judge who is handling their client’s case to issue an order with findings of fact in support of the petitioner’s eligibility for SIJ that does not provide relief from parental abuse, neglect, abandonment or a similar basis under state law. However, the statutory and regulatory eligibility criteria have never permitted SIJ classification to be approved using such state court orders, nor has it been official USCIS policy. Therefore, an SIJ petitioner cannot be said to have acted in reliance on the continuation of a practice and policy that has not been a USCIS practice and policy and which is contrary to the law. USCIS must limit the approval of SIJ classification to cases who are eligible based on a valid court order as required by the INA regardless of its effects on parties who may rely on erroneous state court orders.
With respect to the policy change to no longer require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification, USCIS made that change in response to the strain of litigation. USCIS anticipated that the change would not negatively impact petitioners with potential reliance interests, rather it would reduce their evidentiary burden.
Implementation
USCIS implemented this policy update immediately, as it was merely a clarification. However, USCIS still allowed interested parties an opportunity to comment by providing a 10-day comment period, as is generally provided for Policy Manual publications.
Footnotes
[^ 1] See Chapter 2, Eligibility Requirements, Section A, General [6 USCIS-PM J.2(A)] and Section B, Age-out Protections For Filing with USCIS [6 USCIS-PM J.2(B)].
[^ 2] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order [6 USCIS-PM J.2(C)].
[^ 3] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 1, Dependency or Custody [6 USCIS-PM J.2(C)(1)].
[^ 4] See Chapter 2, Eligibility Requirements, Section D, USCIS Consent [6 USCIS-PM J.2(D)].
[^ 5] See Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 1, Qualifying Juvenile Court Determinations [6 USCIS-PM J.3(A)(1)].
[^ 6] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 2, Parental Reunification [6 USCIS-PM J.2(C)(2)].
[^ 7] See Perez v. Mortgage Bankers Assoc., 135 S.Ct. 1199 (2015).
[^ 8] James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (D.C. Cir. 2000)
[^ 9] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 171 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).
Updates
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the analysis of an employer’s ability to pay the proffered wage for certain employment-based immigrant visa petition adjudications.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding family-based conditional permanent residents (CPRs).
6 USCIS-PM I.1 - Chapter 1 - Purpose and Background
6 USCIS-PM I.2 - Chapter 2 - Terms and Conditions of CPR Status
6 USCIS-PM I.3 - Chapter 3 - Petition to Remove Conditions on Residence
6 USCIS-PM I.4 - Chapter 4 - Joint Petitions and Individual Filing Requests
6 USCIS-PM I.5 - Chapter 5 - Waiver of Joint Filing Requirement
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to align with Casa Libre/Freedom House v. Mayorkas. The district court in Casa Libre issued a Declaratory Judgment stating that the tolling provisions outlined in DHS regulations are not in accordance with the 180-day timeframe for the adjudication of a special immigrant juvenile (SIJ) petition as required by statute, to the extent that the regulations allow adjudication beyond the 180-day timeframe.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to continue to incorporate statutory reforms of the Regional Center Program as they relate to regional center designation and other requirements for immigrant investors.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how USCIS evaluates evidence to determine eligibility for extraordinary ability and outstanding professor or researcher first preference employment-based immigrant visa classifications.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to confirm the evidentiary requirements for physicians seeking a national interest waiver of the job offer requirement based on work in an underserved area or at a U.S. Department of Veterans Affairs facility.
U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual to address instances where the last day of filing a benefit request or response to a Request for Evidence or a Notice of Intent to Deny, Revoke, Rescind, or Terminate, falls on a Saturday, Sunday, or federal holiday.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the analysis of an employer’s ability to pay the proffered wage for certain employment-based immigrant petition adjudications.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding on-site inspections for special immigrant and nonimmigrant religious worker petitions.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022.
6 USCIS-PM G.1 - Chapter 1 - Purpose and Background
6 USCIS-PM G.2 - Chapter 2 - Immigrant Petition Eligibility Requirements
7 USCIS-PM A.3 - Chapter 3 - Filing Instructions
7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review
7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act
7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements
7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant religious workers.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual on the transition of the responsibility to adjudicate certain Afghan special immigrant visa (SIV) petitions to the U.S. Department of State (DOS) and to incorporate other changes to the Afghan and Iraqi SIV classifications resulting from the Emergency Security Supplemental Appropriations Act of 2021.
6 USCIS-PM H.1 - Chapter 1 - Purpose and Background
6 USCIS-PM H.8 - Chapter 8 - Certain Iraqi Nationals
6 USCIS-PM H.9 - Chapter 9 - Certain Afghan Nationals
6 USCIS-PM H.10 - Chapter 10 - Certain Iraqi and Afghan Translators and Interpreters
7 USCIS-PM F.10 - Chapter 10 - Certain Afghan and Iraqi Nationals
This technical update to Volume 6 clarifies the Policy Manual alert boxes published on April 27, 2022 relating to the recent EB-5 Reform and Integrity Act of 2022, which authorizes an EB-5 Immigrant Investor Regional Center Program and includes various implementation effective dates for the program. On June 24, 2022, the U.S. District Court for the Northern District of California in Behring Regional Center LLC v. Mayorkas, et al, 3:22-cv-02487, issued a preliminary injunction enjoining USCIS “from treating as deauthorized the previously designated regional centers.” The April 27, 2022 alert remains posted for historical purposes.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to incorporate changes from the Special Immigrant Juvenile Petitions Final Rule (SIJ Final Rule), including updated citations, new definitions, and clarifications.
This technical update to Volume 6, Part F aligns language related to documentation required for submission with a national interest waiver petition with the Form I-140 instructions. Specifically, consistent with those instructions, this update removes reference in the Policy Manual to the requirement that a petitioner submit two copies of the employee-specific portions of a permanent labor certification (without DOL approval).
This technical update incorporates the policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced March 7, 2022, to consider deferred action (and related employment authorization) for noncitizens classified as Special Immigrant Juveniles (SIJs) who are ineligible to apply for adjustment of status to lawful permanent resident (LPR) status solely due to visa unavailability. This guidance became effective May 6, 2022.
This technical update to Volume 6 alerts readers to the passage of the EB-5 Reform and Integrity Act of 2022, which authorizes an EB-5 Immigrant Investor Regional Center Program and includes various implementation effective dates for the program. The alert boxes refer readers to uscis.gov for the latest information on the implementation of that law. In addition, this update reserves and moves all of the content in Chapter 3 (Regional Center Designation, Reporting, Amendments, and Termination) to an appendix (Regional Center Program Prior to March 15, 2022) as Congress repealed that program.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual on interview waiver criteria for family-based conditional permanent residents (CPRs) filing petitions to remove the conditions on permanent residence.
U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to align existing guidance on certain first preference immigrants with a recent Policy Manual update relating to nonimmigrants of extraordinary ability.
U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to consider deferred action (and related employment authorization) for noncitizens classified as Special Immigrant Juveniles (SIJs) who are ineligible to apply for adjustment of status to lawful permanent resident (LPR) status solely due to visa unavailability. This guidance becomes effective May 6, 2022.
This technical update to Volume 6 provides information in a footnote on the latest resources available to determine critical and emerging technologies.
This technical update to Volume 6 removes references to the period of time for which the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829) receipt notice shows proof of conditional permanent resident status.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to address requests for national interest waivers for advanced degree professionals or persons of exceptional ability.
U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding the determination of whether a child born outside the United States, including a child born through Assisted Reproductive Technology (ART), is considered born “in wedlock.”
6 USCIS-PM B.8 - Chapter 8 - Children, Sons, and Daughters
12 USCIS-PM H.2 - Chapter 2 - Definition of Child and Residence for Citizenship and Naturalization
12 USCIS-PM H.3 - Chapter 3 - U.S. Citizens at Birth (INA 301 and 309)
12 USCIS-PM H.4 - Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)
12 USCIS-PM H.5 - Chapter 5 - Child Residing Outside of the United States (INA 322)
U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to comply with a recent court order.
This technical update explains that on June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, USCIS will apply the EB-5 regulations and policies that were in effect before the rule was finalized on November 21, 2019.
This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 22.1 and 22.2 of the AFM, related appendices, and policy memoranda.
This technical update directs readers to visit the USCIS webpage for the latest information on Special Immigrant Visa (SIV) program extensions and visa numbers for Afghans who were employed by or on behalf of the U.S. Government.
This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual regarding the special immigrant juvenile (SIJ) classification to incorporate changes agreed to in the settlement agreement resulting from the Saravia v. Barr class action lawsuit.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address Schedule A designations.
This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 22.3 and 26 of the AFM, related appendices, and policy memoranda.
U.S. Citizenship and Immigration Services (USCIS) is issuing clarifying policy guidance in the USCIS Policy Manual regarding deployment of investment capital, including further deployment after the job creation requirement is satisfied.
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 317.68 KB) between the AFM and the Policy Manual.
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole
4 USCIS-PM - Volume 4 - Refugees and Asylees
5 USCIS-PM - Volume 5 - Adoptions
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the limited circumstances in which USCIS has delegated authority to the U.S. Department of State to accept and adjudicate the Form I-130 filed abroad at U.S. embassies and consulates. This guidance becomes effective February 1, 2020.
U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual regarding the special immigrant juvenile (SIJ) classification.
U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the EB-5 Immigrant Investor Program Modernization Final Rule, published on July 24, 2019, and effective November 21, 2019. Note: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, USCIS will apply the EB-5 regulations and policies that were in effect before the rule was finalized on November 21, 2019.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to clarify its policy on debt arrangements.
U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests impact the filing of Form I-526, Immigrant Petition by Alien Entrepreneur.
This technical update clarifies that the rescission of the policy regarding the tenant-occupancy methodology does not affect petitions pending on May 15, 2018 (the date USCIS announced the rescission).
U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to reflect that, as of May 15, 2018, USCIS no longer considers tenant occupancy to be a reasonable methodology to support economically or statistically valid forecasting tools.
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance regarding the documentation of conditional permanent resident (CPR) status for employment-based fifth preference (EB-5) immigrants.
U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to provide further guidance regarding the job creation and capital at risk requirements for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the eligibility requirements for regional centers and immigrant investors.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the special immigrant juvenile (SIJ) classification and special immigrant-based (EB-4) adjustment of status, including adjustment based on classification as a special immigrant religious worker, SIJ, and G-4 international organization or NATO-6 employee or family member, among others.
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