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Monday,

September 17, 2007

Part IV

Department of
Homeland Security
8 CFR Parts 103, 212, et al.
New Classification for Victims of Criminal
Activity; Eligibility for ‘‘U’’ Nonimmigrant
Status; Interim Rule
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53014 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

DEPARTMENT OF HOMELAND ADDRESSES: You may submit comments, D. Small Business Regulatory Enforcement
SECURITY identified by DHS Docket No. USCIS– Fairness Act of 1996
2006–0069 by one of the following E. Executive Order 12866 (Regulatory
8 CFR Parts 103, 212, 214, 248, 274a Planning and Review)
methods: F. Executive Order 13132 (Federalism)
and 299 • Federal eRulemaking Portal: http:// G. Executive Order 12988 (Civil Justice
[CIS No. 2170–05; DHS Docket No. USCIS– www.regulations.gov. Follow the Reform)
2006–0069] instructions for submitting comments. H. Family Assessment
• Mail: Chief, Regulatory I. Paperwork Reduction Act
RIN 1615–AA67 Management Division, U.S. Citizenship
and Immigration Services, Department I. Public Participation
New Classification for Victims of of Homeland Security, 111 Interested persons are invited to
Criminal Activity; Eligibility for ‘‘U’’ Massachusetts Avenue, NW., 3rd Floor, participate in this rulemaking by
Nonimmigrant Status submitting written data, views, or
Washington, DC 20529. To ensure
AGENCY: U.S. Citizenship and proper handling, please reference DHS arguments on all aspects of this interim
Immigration Services, DHS. Docket No. USCIS–2006–0069 on your rule. U.S. Citizenship and Immigration
ACTION: Interim rule with request for correspondence. This mailing address Services (USCIS) also invites comments
comments. may also be used for paper, disk, or CD– that relate to the economic,
ROM submissions. environmental, or federalism effects that
SUMMARY: This interim rule amends • Hand Delivery/Courier: Regulatory might result from this interim rule.
Department of Homeland Security Management Division, U.S. Citizenship Comments that will provide the most
regulations to establish the requirements and Immigration Services, Department assistance to USCIS in developing these
and procedures for aliens seeking U of Homeland Security, 111 procedures will reference a specific
nonimmigrant status. The U Massachusetts Avenue, NW., 3rd Floor, portion of the interim rule, explain the
nonimmigrant classification is available Washington, DC 20529. Contact reason for any recommended change,
to alien victims of certain criminal Telephone Number (202) 272–8377. and include data, information, or
activity who assist government officials FOR FURTHER INFORMATION CONTACT: authority that support such
in investigating or prosecuting such Laura Dawkins, U.S. Citizenship and recommended change.
criminal activity. The purpose of the U Immigration Services, Department of Instructions: All submissions received
nonimmigrant classification is to Homeland Security, 111 Massachusetts must include the agency name and DHS
strengthen the ability of law Avenue, NW., 3rd Floor, Washington, Docket No. USCIS–2006–0069. All
enforcement agencies to investigate and DC 20529, telephone: (202) 272–8350. comments received will be posted
prosecute such crimes as domestic without change to http://
SUPPLEMENTARY INFORMATION: This
violence, sexual assault, and trafficking www.regulations.gov, including any
supplemental information section is
in persons, while offering protection to personal information provided.
organized as follows: Docket: For access to the docket to
alien crime victims in keeping with the
humanitarian interests of the United I. Public Participation read background documents or
States. II. Background and Legislative Authority comments received go to http://
This interim rule outlines the III. Analysis of Requirements and Procedures www.regulations.gov. Submitted
Under This Interim Rule
eligibility and application requirements comments may also be inspected at the
A. Eligibility Requirements for U
for the U nonimmigrant classification Nonimmigrant Status Regulatory Management Division, U.S.
and the benefits and limitations relating 1. Victims of Qualifying Criminal Activity Citizenship and Immigration Services,
to those granted U nonimmigrant status. Who Have Suffered Physical or Mental Department of Homeland Security, 111
This interim rule also amends existing Abuse Massachusetts Avenue, NW., 3rd Floor,
regulations to include U nonimmigrants 2. Possession of Information Concerning Washington, DC 20529.
among the nonimmigrant status holders the Qualifying Criminal Activity
able to seek a waiver of documentary 3. Helping Law Enforcement in the II. Background and Legislative
requirements to gain admission to the Investigation or Prosecution of Criminal Authority
Activity Congress created the U nonimmigrant
United States, and to permit
4. Criminal Activity That Violated U.S.
nonimmigrants to change status to that Law or Occurred in the United States
classification in the Battered Immigrant
of a U nonimmigrant where applicable. B. Application Process Women Protection Act of 2000
This rule also establishes a filing fee for 1. Filing the Petition to Request U (BIWPA). See Victims of Trafficking and
U nonimmigrant petitions. Nonimmigrant Status Violence Protection Act of 2000, div. B,
Aliens who have been granted interim 2. Initial Evidence Violence Against Women Act of 2000,
relief from USCIS are encouraged to file 3. Derivative Family Members tit. V, Battered Immigrant Women
for U nonimmigrant status within 180 4. Designations Protection Act of 2000, Pub. L. 106–386,
days of the effective date of this interim C. Adjudication and Post-Adjudication sec. 1513, 114 Stat. 1464, 1533–37
1. Credible Evidence
rule. USCIS will no longer issue interim (2000), amended by Violence Against
2. Prohibitions on Disclosure of
relief upon the effective date of this Information Women and Department of Justice
rule; however, if the alien has properly 3. Annual Numerical Limitation on Grants Reauthorization Act of 2005 (VAWA
filed a petition for U nonimmigrant of U Nonimmigrant Status 2005), tit. VIII, Pub. L. 109–162, 119
status, but USCIS has not yet 4. Decision on Petitions Stat. 2960 (2006), amended by Violence
adjudicated that petition, interim relief 5. Benefits for U Nonimmigrants Against Women and Department of
will be extended until USCIS completes 6. Travel Outside the United States Justice Reauthorization Act—Technical
7. Revocation of U Nonimmigrant Status
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its adjudication of the petition. Corrections, Pub. L. 109–271, 120 Stat.


8. Removal Proceedings
DATES: Effective date. This rule is D. Filing and Biometric Services Fees
750 (2006). Alien victims may not have
effective October 17, 2007. IV. Regulatory Requirements legal status and, therefore may be
Comment date. Written comments A. Administrative Procedure Act reluctant to help in the investigation or
must be submitted on or before B. Regulatory Flexibility Act prosecution of criminal activity for fear
November 16, 2007. C. Unfunded Mandates Reform Act of 1995 of removal from the United States. In

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53015

passing this legislation, Congress Federal, State, or local authority U.S.C. 1182(d), to provide for a waiver
intended to strengthen the ability of law investigating or prosecuting criminal of inadmissibility if the Secretary of
enforcement agencies to investigate and activity; and Homeland Security determines that
prosecute cases of domestic violence, • The criminal activity must have such a waiver is in the public or
sexual assault, trafficking of aliens and violated U.S. law or occurred in the national interest.1 Finally, the BIWPA
other crimes while offering protection to United States (including Indian country added a new paragraph (1)(E) to 8 U.S.C.
victims of such crimes. See BIWPA, sec. and military installations) or the 1367(a) to prohibit adverse
1513(a)(2)(A). Congress also sought to territories and possessions of the United determinations of admissibility or
encourage law enforcement officials to States. deportability and disclosure of
better serve immigrant crime victims. Id. INA sec. 101(a)(15)(U)(i), 8 U.S.C. information pertaining to an alien
The U nonimmigrant classification 1101(a)(15)(U)(i). Qualifying criminal seeking U nonimmigrant status, except
was established under section 1513(b) of activity is defined by statute to be in certain circumstances. BIWPA sec.
the BIWPA. Notwithstanding the title of ‘‘activity involving one or more of the 1513(d) (amending section 384(a) of the
the legislation, the U nonimmigrant following or any similar activity in Illegal Immigration and Immigrant
classification is available to qualified violation of Federal, State, or local Reform Act (IIRIRA), div. C of the
victims of crimes, without regard to criminal law: Rape; torture; trafficking; Omnibus Appropriations Act of 1996,
gender. The U nonimmigrant incest; domestic violence; sexual Pub. L. 104–208, 110 Stat. 3009 (1996)).
classification provides temporary assault; abusive sexual contact; Following passage of the BIWPA in
immigration benefits to certain victims prostitution; sexual exploitation; female October 2000, USCIS implemented
of criminal activity who: (1) Have procedures to ensure that those aliens
genital mutilation; being held hostage;
suffered substantial mental or physical who appeared to be eligible for U
peonage; involuntary servitude; slave
abuse as a result of having been a victim nonimmigrant status under the BIWPA
trade; kidnapping; abduction; unlawful
of criminal activity; (2) have would not be removed from the United
criminal restraint; false imprisonment;
information regarding the criminal States until they had an opportunity to
blackmail; extortion; manslaughter;
activity; and (3) assist government apply for such status. See e.g.,
murder; felonious assault; witness
officials in the investigation and Memorandum from Michael D. Cronin,
tampering; obstruction of justice;
prosecution of such criminal activity. Acting Executive Associate
perjury; or attempt, conspiracy, or
USCIS can only grant U nonimmigrants Commissioner, Office of Field
solicitation to commit any of the above
status to 10,000 principal aliens in each Operations, Immigration and
fiscal year. See INA sec. 214(p)(2), 8 mentioned crimes[.]’’ Id.,(iii). The list of Naturalization Service (Aug. 30, 2001);
U.S.C. 1184 (p)(2). (Note: this number qualifying crimes represents the myriad Memorandum from William R. Yates,
does not include persons eligible for U types of behavior that can constitute Associate Director of Operations,
nonimmigrant derivative status—e.g. domestic violence, sexual abuse, or USCIS, Centralization of Interim Relief
spouses, children, or parents of trafficking, or are crimes of which for U Nonimmigrant Status Applicants
applicants—as discussed in Section III. vulnerable immigrants are often targeted (Oct. 8, 2003) (http://www.uscis.gov/
C. of this rule below). as victims. graphics/services/tempbenefits/
Aliens granted U nonimmigrant status U nonimmigrant status can also antitraf.htm); Memorandum from
can remain in the United States for a extend to certain family members of the William R. Yates, Associate Director of
period of up to four years, with possible alien victim. If the alien victim is under Operations, USCIS, Assessment of
extensions upon certification of need by 21 years of age, the victim’s spouse, Deferred Action in Requests for Interim
certain government officials. INA sec. children, unmarried siblings under 18 Relief from U Nonimmigrant Status
214(p)(6), 8 U.S.C. 1184(p)(6). Section years of age, and the victim’s parents Eligible Aliens in Removal Proceedings
1513(f) of the BIWPA provides DHS may qualify for U nonimmigrant status. (May 6, 2004) (http://www.uscis.gov/
with discretion to convert the temporary INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. graphics/services/tempbenefits/
U nonimmigrant status to permanent 1101(a)(15)(U)(ii)(I). If the alien victim antitraf.htm).2 Alien victims who may
resident status if (1) the alien has been is 21 years of age or older, his or her be eligible for U nonimmigrant status
physically present in the United States spouse and children may also qualify were given the opportunity to ask
for a continuous period of at least three for U nonimmigrant status. INA sec. USCIS for interim relief pending the
years since the date of admission as a U 101(a)(15)(U)(ii)(II), 8 U.S.C. promulgation of implementing
nonimmigrant; and (2) DHS determines 1101(a)(15)(U)(ii)(II). regulations. Family members seeking to
that the ‘‘alien’s continued presence in Aliens applying for U nonimmigrant derive immigration benefits from such
the United States is justified on status must provide a certification from aliens were accorded the same
humanitarian grounds, to ensure the a Federal, State or Local law treatment. Interim relief provides alien
family unity, or is otherwise in the enforcement official demonstrating that victims with parole, stays of removal, or
public interest.’’ the applicant ‘‘has been helpful, is being assessed deferred action, as well as an
To qualify for the U nonimmigrant helpful, or is likely to be helpful’’ in the opportunity to apply for employment
classification: investigation or prosecution of the authorization.3
• The alien must have suffered qualifying criminal activity. INA sec.
substantial physical or mental abuse as 214(o), 8 U.S.C. 1184(o). The BIWPA 1 Unless waived, a ground of inadmissibility can

a result of having been a victim of further directs DHS to provide aliens preclude an alien from receiving nonimmigrant
who are eligible for U nonimmigrant status. 8 CFR 214.1(a)(3). Section 212(a) of the INA,
qualifying criminal activity; 8 U.S.C. 1182(a), contains a list of the grounds of
• The alien must be in possession of status with referrals to nongovernmental inadmissibility.
information about the criminal activity organizations (NGOs) to advise the 2 Copies of these documents are accessible on the
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of which he or she has been a victim; aliens regarding their options in the public docket for this rulemaking at
• The alien must be of assistance to United States. Id. Further, USCIS is www.regulations.gov, Docket Number USCIS–2006–
a Federal, State, or local law required to provide U nonimmigrants 0069.
3 Parole is permission given by DHS that allows
enforcement official or prosecutor, a with employment authorization. Id. an alien to physically enter the United States
Federal or State judge, the Department Section 1513(e) of the BIWPA temporarily for urgent humanitarian reasons or
of Homeland Security (DHS), or other amended section 212(d) of the INA, 8 Continued

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III. Analysis of Requirements and Form I–918 within the 180-day time (i) Direct Victims
Procedures Under This Interim Rule period. However, if the alien has This rule generally defines ‘‘victim of
To implement the BIWPA and its properly filed a Form I–918, but USCIS qualifying criminal activity’’ as an alien
creation of the U nonimmigrant has not yet adjudicated that petition, who is directly and proximately harmed
classification, this interim rule outlines interim relief will be extended until by qualifying criminal activity. 8 CFR
the eligibility and application USCIS completes its adjudication of 214.14(a)(14). To formulate the general
requirements for the U nonimmigrant Form I–918. definition, USCIS drew from established
classification and the benefits and A. Eligibility Requirements for U definitions of ‘‘victim.’’ Federal
limitations relating to those granted U Nonimmigrant Status statutory provisions consistently define
nonimmigrant status. Specifically, this ‘‘victim’’ as one who has suffered direct
interim rule provides definitions of There are four statutory eligibility harm or who is directly and proximately
relevant terms contained in the BIWPA requirements for U nonimmigrant harmed as a result of the commission of
and establishes procedures and status, the alien (1) Has suffered a crime. See e.g., 42 U.S.C. 10603(c)
standards for adjudicating petitions for physical or mental abuse as a result of (relating to terrorism); 18 U.S.C.
U nonimmigrant status. It also describes having been a victim of certain criminal 3663(a)(2) (relating to restitution); 18
the filing procedures and adjudication activity; (2) possesses information U.S.C. 3771(e) (relating to crime victim
standards for applications for the waiver concerning such criminal activity; (3) rights); Fed. R. Crim. P. 32(a)(2)
of inadmissibility created by the BIWPA has been helpful, is being helpful or is (defining victim for sentencing
that is available to those seeking U likely to be helpful in the investigation purposes); see also United States v.
nonimmigrant status. New 8 CFR or prosecution of the crime; and (4) the Terry, 142 F.3d 702, 710–11 (4th Cir.
212.17. The rule amends 8 CFR 212.1 to criminal activity violated the laws of the 1998) (reviewing the possible
include U nonimmigrant status United States or occurred in the United definitions of ‘‘victim’’). The
recipients among the nonimmigrant States. This section of the Department of Justice’s (DOJ’s) Attorney
status holders able to seek a waiver of SUPPLEMENTARY INFORMATION describes General Guidelines for Victim and
documentary requirements to gain each statutory eligibility requirement for Witness Assistance (AG Guidelines)
admission to the United States. This U nonimmigrant status and this rule’s adopts a similar definition of the term
rule also amends 8 CFR 248.2 to permit implementation of each requirement. ‘‘victim.’’ See Attorney General
nonimmigrants to change status to that Guidelines for Victim and Witness
1. Victims of Qualifying Criminal
of a U nonimmigrant; 8 CFR 274a.12(a) Assistance at 9 (May 2005) (http://
Activity Who Have Suffered Physical or
to add U nonimmigrant status recipients www.ojp.usdoj.gov/ovc/publications/
Mental Abuse
to the list of aliens authorized to accept welcome.html). The AG Guidelines
employment; 8 CFR 274a.13(a) to The first eligibility requirement for U serve to guide federal investigative,
require an application to be filed for nonimmigrant status is that the alien prosecutorial, and correctional agencies
certain U nonimmigrants seeking must have suffered substantial physical in the treatment of crime victims and,
evidence of employment authorization; or mental abuse as a result of having therefore, were viewed by USCIS as an
8 CFR 299.1 to prescribe the petition been a victim of qualifying criminal informative resource in the
form for U nonimmigrant status; and 8 activity. INA sec. 101(a)(15)(U)(i)(I), 8 development of this rule’s definition of
CFR 103.7 to prescribe the filing fee for U.S.C. 1101(a)(15)(U)(i)(I). This interim victim.4
U nonimmigrant petitions. rule defines the following terms that The AG Guidelines also state that
As discussed below, USCIS relate to this eligibility requirement: individuals whose injuries arise only
encourages petitioners and Victims of qualifying criminal activity, indirectly from an offense are not
accompanying or following to join physical or mental abuse, and qualifying generally entitled to rights or services as
family members who have been granted crime or qualifying criminal activity. victims. AG Guidelines at 10. The AG
interim relief to file Form I–918 within New 8 CFR 214.14(a). These definitions Guidelines, however, provide DOJ
180 days of the effective date of this are discussed below. personnel discretion to treat as victims
rule. After the effective date of this rule, bystanders who suffer unusually direct
a. Victims of Qualifying Criminal injuries as victims. USCIS does not
the interim relief process will no longer Activity
be in effect, and USCIS will not anticipate approving a significant
consider initial requests for interim The meaning of ‘‘victim of qualifying number of applications from bystanders,
relief. After the 180-day time period, criminal activity’’ is provided by new 8 but will exercise its discretion on a case-
USCIS will reevaluate previous grants of CFR 214.14(a)(14). Within this by-case basis to treat bystanders as
deferred action, parole, and stays of definition, the rule provides for indirect victims where that bystander suffers an
removal and terminate such interim victims of the criminal activities in the unusually direct injury as a result of a
relief for those aliens who fail to file case of deceased victims of murder and qualifying crime. An example of an
manslaughter and victims of violent unusually direct injury suffered by a
significant public benefit; the entry is not deemed criminal activity who are incapacitated bystander would be a pregnant
to be an admission to the United States. INA or incompetent. See new 8 CFR
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5. 4 The AG Guidelines, and some of the

A stay of deportation or removal is an


214.14(a)(14)(i). The definition also aforementioned statutes, also include pecuniary
administrative decision to stop temporarily the clarifies how victims of witness crimes within the scope of qualifying activities. The
deportation or removal of an alien who has been tampering, obstruction of justice, and BIWPA, however, limits the qualification
ordered deported or removed from the United perjury can constitute victims of requirements to aliens who suffer substantial
States. See 8 CFR 241.6; 8 CFR 1241.6. Deferred physical or mental abuse and did not expressly
action is an exercise of prosecutorial discretion that
qualifying criminal activity. See new 8 reference pecuniary crimes. Therefore, pecuniary
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defers the removal of the alien based on the alien’s CFR 214.14(a)(14)(ii). This interim rule crimes are not included as qualifying criminal
case being made a lower priority for removal. also excludes alien victims who are activities for U nonimmigrant status. In addition,
Immigration and Customs Enforcement, Department themselves culpable of criminal activity the AG Guidelines include business entities in the
of Homeland Security, Detention and Deportation definition of ‘‘victim.’’ USCIS, however, only grants
Officer’s Field Manual, ch. 20.8 (2005). Deferred
from the definition of victim, subject to non-immigrant status to individuals, not to business
action does not confer any immigration status upon certain exceptions. See 8 CFR entities and therefore limits the definition of
an alien. 214.14(a)(14)(iii). ‘‘victim’’ under this rule to persons.

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bystander who witnesses a violent crime AG Guidelines, the rule does not restrict with criminal investigations and protect
and becomes so frightened or distraught the victim definition only to the first vulnerable victims (BIWPA sec. 1502)—
at what occurs that she suffers a available person on the list of indirect and to the federal definitions of the term
miscarriage. victims. USCIS has determined that ‘‘victim.’’ As discussed above, in order
such a restrictive definition of victim to be classified as a victim under
(ii) Indirect Victims
would not adequately serve the purpose Federal law, an individual must suffer
USCIS believes that the U behind the U nonimmigrant direct and proximate harm. Therefore,
nonimmigrant classification classification. Family members of USCIS considered which categories of
contemplates encompassing certain murder, manslaughter, incompetent, or people would suffer direct and
indirect victims in addition to direct incapacitated victims frequently have proximate harm from witness
victims. This is because the list of valuable information regarding the tampering, obstruction of justice, and
qualifying criminal activity at section criminal activity that would not perjury. USCIS identified one such
101(a)(15)(U)(iii) of the INA, 8 U.S.C. otherwise be available to law category as individuals who are harmed
1101(a)(15)(U)(iii), includes the crimes enforcement officials because the direct when a perpetrator commits one of the
of murder and manslaughter, the direct victim is deceased, incapacitated, or three crimes in order to avoid or
targets of which are deceased. The list incompetent. By extending the victim frustrate the efforts of law enforcement
also includes witness tampering, definition to include certain family authorities. USCIS identified another
obstruction of justice, and perjury, members of deceased, incapacitated, or such category as individuals who are
which are not crimes against a person. incompetent victims, the rule harmed when the perpetrator uses the
Therefore, this rule extends the encourages these family members to legal system to exploit or impose control
definition of victim beyond the direct fully participate in the investigation or over them.
victim of qualifying criminal activity in prosecution. Extending immigration Accordingly, this rule provides that a
certain circumstances. See new 8 CFR benefits only to the first available victim of witness tampering, obstruction
214.14(a)(14)(i) & (ii). person on the AG Guidelines list could
The AG Guidelines also cover those of justice, or perjury is an alien who has
separate families and lead to anomalous been directly and proximately harmed
persons who are not direct victims of a results. For example, in the case of a
crime where the direct victim is by the perpetrator of one of these three
mother who is murdered and leaves crimes, where there are reasonable
deceased as a result of the qualifying behind her husband and young
crime (e.g. murder or manslaughter), grounds to conclude that the perpetrator
children, extending benefits only to the principally committed the offense as a
incompetent or incapacitated, or under husband, as the first person on the list,
the age of 18. AG Guidelines, at 9. In means: (1) To avoid or frustrate efforts
could leave minor children without U to investigate, arrest, prosecute, or
these situations, the direct victim is not nonimmigrant status protection.
available or sufficiently able to help in otherwise bring him or her to justice for
USCIS notes, however, that while
an investigation or prosecution of the other criminal activity; or (2) to further
family members on the list of indirect
criminal activity. Id. The AG Guidelines victims under this rule may apply for U his or her abuse or exploitation of or
list such indirect victims to be a spouse, nonimmigrant status in their own right undue control over the alien through
legal guardian, parent, child, sibling, as principal petitioners, there is no manipulation of the legal system. New
another family member, or another requirement that they do so. For 8 CFR 214.14(a)(14)(ii). In developing
person designated by the court. Id. example, in the scenario described this definition, USCIS considered
Under the AG Guidelines, however, above of a mother who is murdered and whether or not the criminal activity of
only the first available person on the list leaves behind a husband and minor witness tampering, obstruction of
is eligible to be considered a victim. Id. children, the husband and minor justice, or perjury must have been
For instance, the parent of a murder children could each apply as principal committed in relation to one of the other
victim is only considered a victim if his petitioners. In the alternative, the qualifying crimes listed in the statute.
or her child is unmarried. The spouse, husband could file as a principal However, the text of section
as the first person on the list, would be petitioner and the children could be 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
deemed the victim. included as family members on his 1101(a)(15)(U)(iii), listing qualifying
Drawing from the AG Guidelines in petition, as will be discussed later in criminal activity explicitly states that
conjunction with the U classification this Supplementary Information. the criminal activity must involve ‘‘one
statutory provision describing Likewise, the children potentially could or more’’ of the 27 categories of crimes
qualifying family members (section be principal petitioners and their father listed. USCIS reads the phrase ‘‘one or
101(a)(15)(U)(ii) of the INA, 8 U.S.C. (the husband of the deceased), could be more’’ to mean that each of the crimes
1101(a)(15)(U)(ii)), this rule extends the included as a family member on one of listed thereafter may qualify
victim definition to the following list of the children’s petitions. Family independently. Therefore, this rule does
indirect victims in the case of murder, members who are recognized as indirect not require such a nexus.
manslaughter, or incompetent or victims and, therefore, eligible to apply (iii) Culpability of the Victim
incapacitated victims: Spouses; children for U nonimmigrant status as principal
under 21 years of age; 5 and, if the direct petitioners must meet all of the This rule excludes a person who is
victim is or was under 21 years of age, eligibility requirements that the direct culpable for the qualifying criminal
parents and unmarried siblings under victim would have had to meet in order activity being investigated or prosecuted
18 years of age. See new 8 CFR to be accorded U nonimmigrant status. from being deemed a victim. See new 8
214.14(a)(14)(i). This rule does not In the case of witness tampering, CFR 214.14(a)(14)(iii). Although the
extend the victim definition beyond obstruction of justice, or perjury, the statutory provision at section
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these family members since the U interpretive challenge for USCIS was to 101(a)(15)(U)(i) of the INA, 8 U.S.C.
nonimmigrant classification does not determine whom the BIWPA was meant 1101(a)(15)(U)(i), describing who
apply to other individuals. Unlike the to protect, given that these criminal qualifies as a U nonimmigrant neither
activities are not targeted against a explicitly covers nor explicitly excludes
5 Qualifying children also must be unmarried. See person. USCIS looked to the purpose of culpable persons, USCIS believes that
INA sec. 101(b), 8 U.S.C. 1101(b). the BIWPA—to encourage cooperation this exclusion is warranted.

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This exclusion does not apply to an to make case-by-case determinations, variety of state criminal statutes in
alien who committed a crime other than using factors as guidelines. which criminal activity may be named
the one under investigation or This rule lists a number of factors differently than criminal activity found
prosecution, even if the crimes are USCIS will consider when determining on the statutory list, while the nature
related. For instance, an alien who whether the physical or mental abuse at and elements of both criminal activities
agrees to be smuggled into the United issue qualifies as substantial. New 8 are comparable. In addition, qualifying
States, but is then held in involuntary CFR 214.14(b)(1). These factors are: The criminal activity may occur during the
servitude may still be deemed to be a nature of the injury inflicted or suffered; commission of non-qualifying criminal
victim of involuntary servitude even the severity of the perpetrator’s conduct; activity. For varying reasons, the
though he or she also may be culpable the severity of the harm suffered; the perpetrator may not be charged or
in the smuggling crime and for illegally duration of the infliction of the harm; prosecuted for the qualifying criminal
entering the United States. USCIS has and the extent to which there is activity, but instead, for the non-
concluded that, while it is reasonable to permanent or serious harm to the qualifying criminal activity. For
exclude culpable individuals from being appearance, health, or physical or example, in the course of investigating
defined as a victim, it is not reasonable mental soundness of the victim. Federal embezzlement and fraud
to exclude individuals simply based on Through these factors, USCIS will be charges, the investigators discover that
any criminal activity in which they may able to evaluate the kind and degree of the perpetrator is also abusing his wife
have at one time engaged. USCIS notes harm suffered by the individual and children, but because there are no
that this approach of distinguishing applicant based upon that applicant’s applicable Federal domestic violence
between those who are culpable for the individual experience. No single factor laws, he is charged only with non-
qualifying crime and those who are is a prerequisite to establish that the qualifying Federal embezzlement and
culpable for other crimes is supported abuse suffered was substantial. Also, the fraud crimes.
by the AG Guidelines. See AG existence of one or more of the factors
does not automatically create a 2. Possession of Information Concerning
Guidelines, at 10.
presumption that the abuse suffered was the Qualifying Criminal Activity
b. Physical or Mental Abuse substantial. In passing the BIWPA, Congress
This rule defines physical or mental USCIS recognizes the possibility that wanted to encourage aliens who are
abuse to mean injury or harm to the some victims will have a pre-existing victims of criminal activity to report the
victim’s physical person, or harm to or physical or mental injury or condition at criminal activity to law enforcement
impairment of the emotional or the time of the abuse. In evaluating and fully participate in the investigation
psychological soundness of the victim. whether the harm is substantial, this and prosecution of the perpetrators of
New 8 CFR 214.14(a)(8). In considering rule requires USCIS to consider the such criminal activity. BIWPA sec.
how to define the term physical or extent to which any pre-existing 1513(a)(1)(B). The second eligibility
mental abuse, USCIS examined existing conditions were aggravated. Id. Some requirement for U nonimmigrant status
regulations that use similar terms. In abuse may involve a series of acts or is that the alien must possess
particular, USCIS looked to regulations occur repeatedly over a period of time. information about the qualifying
promulgated following the enactment of USCIS will consider the abuse in its criminal activity of which he or she is
VAWA 1994 that allow battered spouses totality to determine whether the abuse a victim. INA sec. 101(a)(15)(U)(i)(II), 8
and children of U.S. citizens and lawful is substantial. A series of acts taken U.S.C. 1101(a)(15)(U)(i)(II). This rule
permanent residents to seek together may be considered to constitute adopts this statutory requirement at new
immigration status. See 8 CFR 204.2(c), substantial physical or mental abuse 8 CFR 214.14(b)(2). Possessing
216.5(e)(3). These regulations use the even where no single act alone rises to information about a crime of which the
terms ‘‘battery’’ and ‘‘extreme cruelty’’ that level. Id. alien is not a direct or indirect victim
to refer to any act or threatened act of would not satisfy this requirement and,
c. Qualifying Criminal Activity
violence that results in physical or therefore, is not included in the rule.
mental injury. See 8 CFR 204.2(c)(2)(vi); The statutory list of qualifying USCIS will consider an alien victim to
8 CFR 216.5(e)(3)(i). Battery and criminal activity in section possess information concerning
extreme cruelty are terms that the 101(a)(15)(U)(iii) of the INA, 8 U.S.C. qualifying criminal activity of which he
regulations use interchangeably with the 1101(a)(15)(U)(iii), is not a list of or she was a victim if he or she has
term ‘‘abuse.’’ See 8 CFR 204.2(c)(1)(vi); specific statutory violations, but instead knowledge of the details (i.e., specific
(2)(iv); 216.5(e)(3)(i); and 216.5(e)(3)(iii). a list of general categories of criminal facts) concerning the criminal activity
The term, ‘‘physical or mental abuse,’’ activity. It is also a non-exclusive list. that would assist in the investigation or
encompasses a wide range of physical or Any similar activity to the activities prosecution of the criminal activity. See
mental harm. Section 101(a)(15)(U)(i)(I) listed may be a qualifying criminal new 8 CFR 214.14(b)(2). The findings
of the INA, 8 U.S.C. 1101(a)(15)(U)(i)(I), activity. This interim rule adopts the that Congress expressed in sections
which establishes this as a requirement, statutory list of criminal activity and 1513(a)(1) and (2) of the BIWPA make
qualifies ‘‘physical or mental abuse’’ further defines what constitutes ‘‘any clear that the intent behind the creation
with the term, ‘‘substantial.’’ The similar activity.’’ See new 8 CFR of U nonimmigrant status was to
statutory provision does not make clear, 214.14(a)(9). The rule provides that for facilitate the investigation and
however, whether the standard of a criminal activity to be deemed similar prosecution of criminal activity of
‘‘substantial’’ physical or mental abuse to one specified on the statutory list, the which immigrants are targets while
is intended to address the severity of the similarities must be substantial. USCIS providing protection for victims of such
injury suffered by the victim, or the bases this definition on the fact that the criminal activity. USCIS believes that, to
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severity of the abuse inflicted by the statutory list of criminal activity is not give effect to congressional intent, the
perpetrator. USCIS has concluded that it composed of specific statutory information that the alien must possess
is reasonable to consider both. Rather violations. Instead, the criminal activity must be related to the crime of which he
than define what constitutes abuse that listed is stated in broad terms. The or she is a victim. If not, the stated
is ‘‘substantial,’’ however, USCIS rule’s definition of ‘‘any similar purpose of the statute is thwarted.
believes that a better approach would be activity’’ takes into account the wide Possession of information concerning

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the criminal activity necessarily means investigation or prosecution of the ongoing responsibility to cooperate with
that the alien must have knowledge of qualifying criminal activity. INA sec. the certifying official while in U
it. 101(a)(15)(U)(i)(III), 8 U.S.C. nonimmigrant status.
When the alien victim is under 16 1101(a)(15)(U)(i)(III). This requirement An exception to the helpfulness
years of age, the statute does not require is set forth in new 8 CFR 214.14(b)(3), requirement applies to alien victims
him or her to possess information which further provides that the alien who are under 16 years of age. Such
regarding the qualifying criminal victim cannot refuse or fail to provide alien victims can satisfy the helpfulness
activity. Rather, the parent, guardian, or reasonably requested information and requirement if their parent, guardian, or
next friend of the alien victim may assistance in order to remain eligible for next friend provides the required
possess that information if the alien U nonimmigrant status. The rule also assistance. INA sec. 101(a)(15)(U)(i)(III),
victim does not. INA sec. provides for alien victims who are 8 U.S.C. 1101(a)(15)(U)(III). This
101(a)(15)(U)(i)(II), 8 U.S.C. incompetent or incapacitated. exception is the same exception
1101(a)(15)(U)(i)(II). This rule reiterates Additionally, this rule provides that the applicable to the previous requirement
this exception at new 8 CFR official or authority receiving the that the alien victim possess
214.14(b)(2). This provision specifies assistance be a ‘‘certifying agency,’’ as information regarding the criminal
that the age of the alien victim on the defined in new 8 CFR 214.14(a)(2). activity. See new 8 CFR 214.14(b)(2).
day on which an act constituting an This rule reiterates the exception with
element of the qualifying criminal a. Helpfulness
respect to the helpfulness requirement
activity first occurred is the applicable USCIS interprets ‘‘helpful’’ to mean at new 8 CFR 214.14(b)(3). The
age to consider for purposes of assisting law enforcement authorities in
provision specifies that the age of the
establishing whether the exception is the investigation or prosecution of the
victim on the day on which an act
triggered. The purpose of the exception qualifying criminal activity of which he
constituting an element of the qualifying
is to allow for alternative mechanisms or she is a victim. USCIS is excluding
criminal activity first occurred is the
for possessing information when a child from eligibility those alien victims who,
applicable age to consider for purposes
is at an age where he or she may be too after initiating cooperation, refuse to
of establishing whether the exception is
young to adequately understand and provide continuing assistance when
triggered. New 8 CFR 214.14(b)(3). It
relay traumatic and sensitive reasonably requested. New 8 CFR
also extends the exception to
information. As such, USCIS believes 214.14(b)(3). USCIS believes that the
individuals who are incapacitated or
that the date on which the qualifying statute imposes an ongoing
responsibility on the alien victim to incompetent and allows a parent,
criminal activity began is the
provide assistance, assuming there is an guardian, or next friend to be helpful in
appropriate date for triggering this
ongoing need for the applicant’s those instances. Id.
exception.
The rule also permits a parent, assistance. USCIS bases this b. Certifying Agency
guardian, or next friend to provide interpretation on the plain text of the
information when the alien victim is statutory provision that sets forth this This rule requires that the assistance
incapacitated or incompetent. New 8 requirement. See INA sec. in the investigation or prosecution of
CFR 214.14(b)(2). Permitting certain 101(a)(15)(U)(i)(III), 8 U.S.C. qualifying criminal activity be provided
family members or guardians to act in 1101(a)(15)(U)(i)(III). The requirement to a ‘‘certifying agency.’’ As discussed
lieu of incapacitated or incompetent was written with several verb tenses, later in this Supplementary Information,
victims is supported by the AG recognizing that an alien may apply for an alien victim must include a
Guidelines, at 9. U nonimmigrant status at different certification from such agency in
This rule also defines the term ‘‘next stages of the investigation or support of his or her request for U
friend.’’ New 8 CFR 214.14(a)(7). An prosecution. By allowing an individual nonimmigrant status. INA sec. 214(p)(1),
individual will qualify as a next friend to petition for U nonimmigrant status 8 U.S.C. 1184(p)(1).
under this rule if he or she appears in upon a showing that he or she may be A ‘‘certifying agency’’ is one of the
a lawsuit to act for the benefit of an helpful at some point in the future, government officials and entities
alien who is under the age of 16 or who USCIS believes that Congress intended identified in the statute that is
is incapacitated or incompetent. See for individuals to be eligible for U investigating or prosecuting qualifying
Whitmore v. Arkansas, 495 U.S. 149, nonimmigrant status at the very early criminal activity. INA sec.
163–4 (1990) (describing next friend as stages of an investigation. This suggests 101(a)(15)(U)(i)(III), 8 U.S.C.
someone dedicated to the best interests an ongoing responsibility to cooperate 1101(a)(15)(U)(i)(III). The rule defines a
of the individual who cannot appear on with the certifying official while in U ‘‘certifying agency’’ as a Federal, State,
his or her own behalf because of nonimmigrant status. If the alien victim or local law enforcement agency,
inaccessibility, mental incompetence, or only reports the crime and is unwilling prosecutor, judge, or other authority,
other disability). The next friend is not to provide information concerning the that has responsibility for the
a party to the legal proceeding and is criminal activity to allow an investigation or prosecution of the
not appointed as a guardian. investigation to move forward, or qualifying criminal activities designated
refuses to continue to provide assistance in the BIWPA. New 8 CFR 214.14(a)(2).
3. Helping Law Enforcement in the to an investigation or prosecution, the This includes traditional law
Investigation or Prosecution of Criminal purpose of the BIWPA is not furthered. enforcement branches within the
Activity See BIWPA sec. 1513(a)(2). criminal justice system. However,
The third eligibility requirement for U In addition, in order to qualify for USCIS also recognizes that other
nonimmigrant status is that the alien permanent resident status on the basis agencies, such as child protective
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victim of qualifying criminal activity of the U nonimmigrant classification, services, the Equal Employment
(or, in the case of an alien child under the alien must not have unreasonably Opportunity Commission, and the
the age of 16, the parent, guardian, or refused to provide assistance in a Department of Labor, have criminal
next friend of the alien) has been, is criminal investigation or prosecution. investigative jurisdiction in their
being, or is likely to be helpful to a INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). respective areas of expertise. The rule
government official or authority in the This requirement further suggests an specifies these agencies. See id.

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53020 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

The rule provides that the term Band of Mission Indians, 480 U.S. 202, violation of U.S. law. USCIS interprets
‘‘investigation or prosecution,’’ used in 208 n.5 (1996). the phrase, ‘‘violated the laws of the
the statute and throughout the rule, Similarly, the term ‘‘military United States,’’ as referring to criminal
includes the detection or investigation installation’’ is not defined in the activity that occurred outside the United
of a qualifying crime or criminal BIWPA. This rule defines that term as States that is in violation of U.S. law.
activity, as well as the prosecution, meaning any facility, base, camp, post, This rule provides that criminal
conviction, or sentencing of the encampment, station, yard, center, port, activity that has occurred outside of the
perpetrator of such crime or criminal aircraft, vehicle, or vessel under the United States, but that fits within a type
activity. New 8 CFR 214.14(a)(5). jurisdiction of the Department of of criminal activity listed in section
Referring to the AG Guidelines, USCIS Defense, or any location under military 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
is defining the term to include the control, including any leased facility. 1101(a)(15)(U)(iii), will constitute a
detection of qualifying criminal activity New 8 CFR 214.14(a)(6). To develop this qualifying criminal activity if it violates
because the detection of criminal definition, USCIS looked to other a federal statute that specifically
activity is within the scope of a law statutory definitions of the term. See, provides for extraterritorial jurisdiction.
enforcement officer’s investigative e.g., 10 U.S.C. 2687(e) (defining the term See new 8 CFR 214.14(b)(4). Such
duties. AG Guidelines, at 22–23. Also in the context of base closures and criminal activity will have ‘‘violated the
referring to the AG Guidelines, USCIS is realignments); 10 U.S.C. 2801(c)(2) laws of the United States.’’ Congress has
defining the term to include the (relating to military construction). A enacted a variety of statutes governing
conviction and sentencing of the review of the federal case law reveals criminal activity occurring outside the
perpetrator because these extend from that this is a nebulous concept with no territorial limits of the United States.
the prosecution. Id. at 26–27. Moreover, absolute definition. United States v. These statutes establish extraterritorial
such inclusion is necessary to give effect Buske, 2 M.J. 465, 467 (A.C.M.R. 1975). and federal, criminal jurisdiction.
to section 214(p)(1) of the INA, 8 U.S.C. In order to realize the purpose of the U Statutes establishing extraterritorial
1184(p)(1), which permits judges to sign nonimmigrant classification, to facilitate jurisdiction generally require some
certifications on behalf of U criminal investigations and nexus between the criminal activity and
nonimmigrant status applications. INA prosecutions, USCIS interpreted the U.S. interests. For example, pursuant to
sec. 214(p)(1), 8 U.S.C. 1184(p)(1). term broadly to encompass a wide range 18 U.S.C. 2423(c), the United States has
Judges neither investigate crimes nor of military locations. jurisdiction to investigate and prosecute
prosecute perpetrators. Therefore, New 8 CFR 212.14(a)(11) defines the cases involving U.S. citizens or
USCIS believes that the term term ‘‘territories and possessions of the nationals who engage in illicit sexual
‘‘investigation or prosecution’’ should United States’’ to mean American conduct outside the United States, such
Samoa, Swains Island, Bajo Nuevo (the as sexually abusing a minor. See also 18
be interpreted broadly as in the AG
Petrel Islands), Baker Island, Howland U.S.C. 32 (destruction of an aircraft); 15
Guidelines.
Island, Jarvis Island, Johnston Atoll, U.S.C. 1 (extraterritorial application of
4. Criminal Activity That Violated U.S. Kingman Reef, Midway Atoll, Navassa the Sherman Act governing antitrust
Law or Occurred in the United States Island, Northern Mariana Islands, laws).
Palmyra Atoll, Serranilla Bank, and This rule does not require that the
The fourth requirement for U Wake Atoll. This definition is based on prosecution actually occur, since the
nonimmigrant classification is that the current information that the Department statute only requires an alien victim to
qualifying criminal activity violated the of Interior provided to USCIS. Although be helpful in the investigation or the
laws of the United States or occurred in Guam, Puerto Rico, and the U.S. Virgin prosecution of the criminal activity. See
the United States (including in Indian Islands are also considered territories or INA sections 101(a)(15)(U)(i)(III) &
country and military installations) or possessions of the United States, USCIS 214(p)(1), 8 U.S.C. 1101(a)15(u)(i)(III)
the territories and possessions of the has not included them in this regulatory and 1184(p)(1). Prosecution may be
United States. INA 101(a)(15)(U)(i)(IV), definition because they are already impossible due to a number of factors,
8 U.S.C. 1101(a)(15)(U)(i)(IV). This incorporated into the INA definition of such as an inability to extradite the
requirement is adopted in new 8 CFR United States. See INA sec. 101(a)(38), defendant.
214.14(b)(4). 8 U.S.C. 1101(a)(38).
The term United States is defined in Section 101(a)(15)(U)(i)(IV) of the B. Application Process
section 101(a)(38) of the INA, 8 U.S.C. INA, 8 U.S.C. 1101(a)(15)(U)(i)(IV), By statute, the petition for U
1101(a)(38), to mean the continental requires that the criminal activity either nonimmigrant status must be filed by
United States, Alaska, Hawaii, Puerto violated the laws of the United States or the alien victim and contain a
Rico, Guam, and the U.S. Virgin Islands. occurred in the United States. USCIS certification of helpfulness from a
The BIWPA does not define the term does not believe that this distinction is certifying agency. See INA sec.
‘‘Indian country,’’ but for purposes of based on which laws are violated—U.S. 214(p)(1), 8 U.S.C. 1184(p)(1). Based
this rule, USCIS is adopting the laws or foreign laws—because upon these statutory requirements, this
definition contained in 18 U.S.C. 1151. elsewhere in the statute, qualifying rule designates the form that petitioners
Under this rule, ‘‘Indian country’’ criminal activity is defined as criminal must use to request U nonimmigrant
means all land within the limits of any activity that is ‘‘in violation of Federal, status and describes the evidence that
Indian reservation under the State, or local criminal law.’’ See INA must accompany the form, including the
jurisdiction of the United States, all sec. 101(a)(15)(U)(iii), 8 U.S.C. certification of helpfulness. The rule
dependent Indian communities within 1101(a)(15)(U)(iii). Instead, USCIS also sets forth filing requirements and
the borders of the United States, and all believes that the distinction refers to procedures. This section of the
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Indian allotments. New 8 CFR where the violation occurred, whether SUPPLEMENTARY INFORMATION discusses
214.14(a)(4). Although 18 U.S.C. 1151 is inside or outside the United States. these requirements, as well as eligibility
a criminal jurisdiction statute, tribal and Accordingly, USCIS interprets the and filing requirements for those
federal courts have applied this phrase, ‘‘occurred in the United States,’’ qualifying family members of the alien
statutory definition to both criminal and to mean qualifying criminal activity that victim who also are seeking U
civil matters. See California v. Cabazon occurred in the United States that is in nonimmigrant status.

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53021

1. Filing the Petition To Request U criminal activity may occur outside the status is pending, will not be eligible for
Nonimmigrant Status territorial jurisdiction of the United U nonimmigrant status unless the
This interim rule designates Form I– States under certain circumstances. ground of inadmissibility is waived by
918, ‘‘Petition for U Nonimmigrant USCIS recognizes that for qualifying USCIS. See INA sec. 212(a), 8 U.S.C.
Status,’’ as the form an alien victim criminal activity that occurred outside 1182(a) (grounds of inadmissibility).
must use to request U nonimmigrant the United States, the investigation may USCIS has general authority to waive
status. See New 8 CFR 214.14(c)(1), This take place either outside or inside the many grounds of inadmissibility for
provision also requires petitioners to United States. The alien victim may be nonimmigrants and may prescribe
follow the instructions to Form I–918 needed in the United States to assist the conditions on their temporary
for proper completion and accompany certifying agency in its investigation or admission to the United States. See INA
Form I–918 with initial evidence and subsequent prosecution of the criminal sec. 212(d)(3)(B), 8 U.S.C. 1182(d)(3)(B).
the correct fee(s).6 Form I–918 requests activity. Allowing alien victims to In addition, the BIWPA created a
information regarding the applicant’s submit petitions from outside the waiver specific to U nonimmigrant
eligibility for U nonimmigrant status United States provides the certifying status. Under this waiver, the Secretary
and admissibility to the United States. agency with the necessary flexibility to of Homeland Security has the discretion
Jurisdiction over all petitions for U further the investigation or prosecution. to waive any ground of inadmissibility
nonimmigrant status rests with USCIS. To apply from outside the United with respect to applicants for U
The instructions to Form I–918 specify States, petitioners must submit a nonimmigrant status, except the ground
where petitioners must file (by mail) complete application package for U applicable to participants in Nazi
their application package. At present, nonimmigrant status to the USCIS persecutions, genocide, acts of torture,
USCIS has centralized the adjudication location specified in the form or extrajudicial killings. INA sec.
process for Forms I–918 at its Vermont instructions. 212(d)(14), 8 U.S.C. 1182(d)(14).
Service Center. This centralization will b. Petitioners With Interim Relief From However, the Secretary of Homeland
allow adjudicators to develop expertise Removal Security first must determine that such
in handling U nonimmigrant petitions This rule does not impose a deadline a waiver would be in the public or
and provide for uniformity in the for submission of U nonimmigrant national interest. Id.
adjudication of these petitions. status petitions. However, USCIS It is important to note that the
The rule addresses several special determination that a waiver would be in
encourages petitioners and
considerations that may affect certain the public or national interest and the
accompanying or following to join
petitioners seeking to file Form I–918: decision to grant a waiver are made at
family members who were granted
Filing petitions from outside the United the discretion of the Secretary. In the
interim relief to file Form I–918 within
States; the effect of a petition on interim immigrant context, the Board of
180 days of the effective date of this
relief; petitioners subject to grounds of Immigration Appeals has held that, in
rule. After the effective date of this rule,
inadmissibility; petitioners in removal assessing whether an applicant has met
the interim relief process will no longer
proceedings or subject to a final order of the burden that a waiver is warranted in
be in effect, and USCIS will not
exclusion, deportation, or removal; the exercise of discretion, the
consider initial requests for interim
changing nonimmigrant classifications; adjudicator must balance adverse factors
relief. After the 180-day time period
and the effect of a petition on other evidencing inadmissibility as a lawful
following the effective date of the rule,
immigration benefits. These permanent resident with the social and
USCIS will reevaluate previous grants of
considerations are discussed below. humane considerations presented to
deferred action, parole, and stays of
a. Alien Victims of Qualifying Criminal removal and terminate such interim determine if the grant of the waiver
Activity Filing Form I–918 From relief for those aliens who fail to file appears to be in the best interests of the
Outside the United States Form I–918 within the 180-day time United States. Matter of Mendez-
period. However, if the alien has Moralez, 21 I&N Dec. 296 (BIA 1996).
This interim rule does not require
properly filed a Form I–918, but USCIS More recently, in the context of a case
petitioners to file Form I–918 from
has not yet adjudicated that petition, involving a waiver of a criminal ground
within the United States. USCIS has
interim relief will be extended until of inadmissibility under section 209(c)
determined that the statutory framework
USCIS completes its adjudication of of the Act, the Attorney General
for U nonimmigrant status permits alien
Form I–918. USCIS believes that 180 determined that favorable discretion
victims of qualifying criminal activity to
days provides an interim relief recipient should not be exercised for waivers
apply for U nonimmigrant status
a sufficient period of time within which under section 212(h) of the Act
classification from either inside or
to file and perfect a U nonimmigrant involving violent or dangerous crimes,
outside the United States. For example,
petition, taking into account the time it except in extraordinary circumstances.
the statute does not require petitioners
may take for individuals to learn of this Matter of Jean, 23 I&N Dec. 373 (A.G.
to be physically present in the United
rule and put together a complete 2002).
States to qualify for U nonimmigrant
package requesting U nonimmigrant In view of these considerations, this
status. By contrast, other nonimmigrant
status. rule provides a general rule that DHS
classifications, such as the T
will only exercise favorable discretion
nonimmigrant classification (INA sec. c. Petitioners Who Are Inadmissible in U nonimmigrant status cases in
101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)),
To be eligible for U nonimmigrant which a waiver for violent or dangerous
explicitly require an alien’s physical
status, the alien requesting status must crimes or the security and related
presence in the United States as a
be admissible to the United States. 8 grounds under section 212(a)(3) of the
condition of eligibility. Moreover, under
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CFR 214.1(a)(3)(i); see also INA sec. Act is requested, in extraordinary


section 101(a)(15)(U)(i)(IV) of the INA, 8
214(a)(1), 8 U.S.C. 1184(a)(1). Therefore, circumstances. Moreover, depending on
U.S.C. 1101(a)(15)(U)(i)(IV), qualifying
those who are inadmissible to the the nature and severity of the
6 A fee waiver is available for the Form I–918 United States, or who become underlying offense/s to be waived, the
filing fee. Fee waivers are governed by 8 CFR inadmissible for conduct that occurs Secretary retains the discretion to
103.7(c). while their petition for U nonimmigrant determine that the mere existence of

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53022 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

extraordinary circumstances is sections 242 and 236 of the INA, 8 joint motion to terminate must be filed
insufficient. U.S.C. 1252, 1226 (as in effect before with the Immigration Court or the
Additionally, this rule provides that April 1, 1997), or who are the subject of Board, whichever has jurisdiction. Id.
the Secretary will not exercise a final order of removal, deportation, or The agreement to pursue termination of
discretion under section 212(d)(3) of the exclusion, may be eligible for U the pending proceedings lies within the
Act, 8 U.S.C. 1182(d)(3), to waive the nonimmigrant status.7 Because sole prosecutorial discretion of ICE.
ground of inadmissibility under section jurisdiction over U nonimmigrant DHS is including a specific provision on
212(a)(3)(E) applicable to participants in petitions rests solely with USCIS, aliens motions to terminate in this rule to
Nazi persecutions, genocide, acts of who are in removal proceedings or who identify a mechanism that conserves
torture, or extrajudicial killings. New 8 are subject to a final removal order prosecutorial resources with respect to a
CFR 212.17(b). Because Congress nevertheless must file their petition for class of aliens who are providing
determined not to make a waiver U nonimmigrant status directly with assistance in investigating and
available for this ground of USCIS. Filing a petition for U prosecuting criminal activity.
inadmissibility in the waiver provision nonimmigrant status will not affect the This rule further provides that if
created for U nonimmigrant applicants proceedings or the order. However, in proceedings are terminated, and USCIS
at section 212(d)(14) of the Act, DHS has instances in which the U nonimmigrant subsequently denies the petition for U
determined that it would not be logical status petitioner or a derivative family nonimmigrant status, DHS may file a
to allow these applicants to be eligible member of the petitioner listed on the new Notice to Appear 11 to place the
for a waiver of this ground of Form I–918 is in removal, deportation, individual into proceedings again. New
inadmissibility under section 212(d)(3) or exclusion proceedings before the 8 CFR 214.14(c)(5)(ii) and (f)(6)(iii).
of the Act. Immigration Court or has a matter With respect to petitioners who are
To apply for a waiver of pending before the Board of the subject of an administrative final
inadmissibility, a petitioner must file Immigration Appeals (Board),8 this rule order, this rule provides that they are
Form I–192, ‘‘Application for Advance provides that the alien may seek the not precluded from filing a petition for
Permission to Enter as Nonimmigrant,’’ agreement of DHS’ Bureau of U nonimmigrant status directly with
with USCIS. New 8 CFR 212.17(a); new Immigration and Customs Enforcement USCIS. New 8 CFR 214.14(c)(1)(ii) and
8 CFR 214.14(c)(2)(iv). USCIS will (ICE) 9 to file a joint motion to terminate (f)(2)(ii). However, the filing of a
evaluate the application to determine the proceedings without prejudice while petition for U nonimmigrant status has
whether it is in the public or national a petition for U nonimmigrant status is no effect on ICE’s authority to execute
interest to exercise discretion to waive being adjudicated by USCIS.10 New 8 a final order. Therefore, those aliens
the applicable ground(s) of CFR 214.14(c)(1)(i) and (f)(2)(i). The subject to a final order of removal,
inadmissibility. New 8 CFR deportation, or exclusion who are
212.17(b)(1). As with inadmissibility 7 An order of deportation is an order issued prior physically present in the United States
waiver applications for other to April 1, 1997, in deportation proceedings, to an should apply separately for a
nonimmigrant classifications, there is alien physically present in the United States discretionary stay of removal if they
requiring the alien to leave the United States. See
no appeal of a decision to deny Form I– INA sec. 242B, 8 U.S.C. 1252b (1996) repealed by
wish to remain in the United States
192. New 212.17(b)(2); see also 8 CFR IIRIRA, Pub. L. 104–208, div. C., sec. 308(b)(6), 110 while their petition is pending with
212.4(a)(1). This rule also provides that Stat. 3009, 3615 (effective April 1, 1997). An order USCIS. To do so, such aliens must file
an applicant whose waiver application of exclusion is an order issued prior to April 1, Form I–246, ‘‘Application for Stay of
1997, in exclusion proceedings, that refuses the
is denied is not prevented from re-filing admission to the United States of an alien who is
Removal,’’ as provided in 8 CFR
a request for a waiver. New 8 CFR physically outside the United States (or who is 241.6(a) and 8 CFR 1241.6(a). For those
212.17(b)(2). This is to allow those treated as being so). See generally INA sec. 236, 8 petitioners who are subject to a final
petitioners whose Forms I–918 and U.S.C. 1226 (1996) (amended by IIRIRA sec. 303(a), order of removal and are detained in
110 Stat. at 3585). Since April 1, 1997, there has ICE’s custody while USCIS adjudicates
concurrently filed Forms I–192 are been one unified removal process for persons
denied an opportunity to have a formerly subject to deportation and exclusion their petition, rules of detention still
subsequently filed Form I–192 proceedings; this process may result in the issuance apply. Under the post-order detention
considered in the context of other of a removal order by either DHS or an immigration rules, an alien who has been subject to
judge. INA sec. 240(a)(3), 8 U.S.C. 1229a(a)(3) post-order detention for more than six
immigration benefits. (added by IIRIRA sections 304(a)(3) & 309(d)(2), 110
USCIS has determined that implicit in Stat. at 3587–3589, 3627). During proceedings, DHS months (dating from the beginning of
its discretionary authority to grant a or an immigration judge makes a determination the removal period as described in INA
waiver is the authority to determine the regarding whether an alien is removable from the § 241(a)(1)) may request release from
conditions under which a waiver is United States. INA sec. 240(c)(1), 8 U.S.C. detention. See 8 CFR 241.13. If, after six
1229a(c)(1). If such a determination is made, a
granted, including revocation of removal order is issued ordering the alien to leave
months of post-order detention, the
previously granted waiver. Therefore, the United States. INA sec. 240(c)(5), 8 U.S.C. alien can provide ‘‘good reason to
this interim rule establishes USCIS’ 1229a(c)(5). The alien must leave the United States believe there is no significant likelihood
authority to revoke its approval of a on his or her own, or will be returned to his or her of removal * * * in the reasonably
country of origin (or in some cases to a third
waiver of inadmissibility that was country that agrees to accept that person) by the
foreseeable future,’’ the alien, with
previously granted. The decision to United States. See INA sections 240B & 241, 8 certain exceptions, will be released on
revoke a waiver is not appealable. New U.S.C. 1229c & 1231. an order of supervision. 8 CFR
8 CFR 212.17(c). 8 The Immigration Court and Board of
241.13(a); see Zadvydas v. Davis, 533
Immigration Appeals are within the Department of U.S. 678, 701 (2001); Clark v. Martinez,
d. Petitioners Who Are in Removal, Justice’s Executive Office for Immigration Review.
543 U.S. 371, 386 (2005). However,
Deportation, or Exclusion Proceedings See 8 CFR 1003.0(a).
9 ICE counsel are authorized to represent DHS in under this rule, the time during which
or Who Are Subject to a Final Order of
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Immigration Court and before the Board. See 6 a stay of removal is in effect will extend
Removal, Deportation, or Exclusion U.S.C. 252(c); DHS Delegation No. 7030.2, para.
Aliens who are in removal 2(C). 11 Removal proceedings are initiated when an
10 While this rule specifically addresses joint
proceedings under section 240 of the alien is provided notice of proceedings through the
motions to terminate, it does not preclude the service of a Notice to Appear. The contents of the
INA, 8 U.S.C. 1229a, or in deportation parties from requesting a continuance of the Notice to Appear are prescribed in section 239(a)(1)
or exclusion proceedings under former proceeding. of the Act.

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the period of detention reasonably status, are contained in new 8 CFR 214. jurisdiction to prosecute the offense
necessary to bring about the petitioner’s Revised 8 CFR 248.1(a). in a U.S. Federal court;
eventual removal. New 8 CFR • A statement by the petitioner
f. Aliens Seeking Other Immigration
214.14(c)(1)(ii) and (f)(2)(ii). As the describing the facts of the victimization;
Benefits
petitioner has, of his or her own and
choosing, requested that his or her Aliens seeking U nonimmigrant status • If the petitioner is inadmissible,
removal be stayed, the reasonably are free to seek any other immigration Form I–192, ‘‘Application for Advance
necessary period for removal justifiably benefit or status for which they are Permission to Enter as Non-Immigrant.’’
is extended. ICE will have a full and fair eligible. INA sec. 214(p)(5), 8 U.S.C.
1184(p)(5). Therefore, nothing in this New 8 CFR 214.14(c)(2).
period to effect removal if USCIS denies
the petition. See 8 CFR 241.4. rule limits a qualified petitioner from a. U Nonimmigrant Status Certification
If USCIS grants the petition for U applying for U nonimmigrant status as
This rule designates Form I–918,
nonimmigrant status, an order of well as other immigration benefits,
Supplement B, ‘‘U Nonimmigrant Status
exclusion, deportation, or removal including immigrant status. However,
Certification,’’ as the form that
issued by the Secretary will be canceled USCIS will only grant one
petitioners must obtain from a certifying
by operation of law as of the date of the nonimmigrant or immigrant status at a
official of a certifying agency. New 8
grant. New 8 CFR 214.14(c)(5)(i) & (f)(6). time. Where multiple applications or
CFR 214.14(c)(2)(i). Form I–918,
However, if USCIS subsequently petitions are filed and pending at the
Supplement B must be prepared by the
revokes approval of the petition, DHS same time, USCIS will grant the status
certifying agency conducting an
may place the petitioner in removal for the application or petition that is
investigation or prosecution of the
proceedings. In cases where an order of approved first. USCIS will deny any
qualifying criminal activity in
exclusion, deportation, or removal was remaining petitions or applications for
accordance with the instructions to the
issued by an immigration judge or the status.
form, and must have been signed by the
Board, the alien may seek cancellation
2. Initial Evidence certifying official within the six months
of such order by filing, with the
This rule requires petitioners filing immediately preceding the submission
immigration judge or the Board, a
Form I–918 to accompany the petition of Form I–918. Id. USCIS is setting a six-
motion to reopen and terminate removal
proceedings. ICE counsel may agree, as with supporting documentation, or month requirement to seek a balance
a matter of discretion, to join such a ‘‘initial evidence,’’ in order for USCIS to between encouraging the filing of
motion to overcome any applicable time consider the request for U petitions and preventing the submission
and numerical limitations of 8 CFR nonimmigrant status complete. New 8 of stale certifications. USCIS believes
1003.2 and 1003.23. Id. CFR 214.14(c)(1). If all required initial that this requirement provides
evidence is not submitted with the petitioners enough time to prepare the
e. Aliens Seeking Change of necessary paperwork for the petition
petition or does not demonstrate
Nonimmigrant Classification package, while also precluding the
eligibility, USCIS, in its discretion, may
Aliens who currently are in a deny the application for lack of initial situation where petitioners delay filing
nonimmigrant status may seek to change evidence or for ineligibility, or request the package until some time after the
their classification to the U that the missing or insufficient initial certification is signed, and they cease to
nonimmigrant classification. Section evidence be submitted within a be helpful to the certifying agency. If a
248 of the INA, 8 U.S.C. 1258, and specified period of time as determined petitioner requested and received
implementing regulations at 8 CFR 248 by USCIS. 8 CFR 103.2(b)(8)(ii). This interim relief prior to the effective date
govern change of nonimmigrant rule provides the following list of of this rule, USCIS will consider the
classification. These provisions permit required initial evidence: evidence submitted to meet the
nonimmigrants to change status to • Form I–918, Supplement B, ‘‘U certification requirements for interim
another nonimmigrant classification, Nonimmigrant Status Certification,’’ relief purposes in lieu of Form I–918,
unless they fall within certain properly and timely executed; Supplement B. New 8 CFR 214.14(c)(1).
nonimmigrant classifications. INA sec. • Any additional evidence the This rule defines ‘‘certifying official’’
248(a)(1)–(4), 8 U.S.C. 1258(a)(1)–(4); 8 petitioner wants USCIS to consider to as the head of the certifying agency or
CFR 248.2. For example, aliens establish further that: any person(s) in a supervisory role who
classified under sections 101(a)(15)(C), —The petitioner is a victim of has been specifically designated by the
(D), (K), or (S) of the INA, 8 U.S.C. qualifying activity; head of the certifying agency to issue U
1101(a)(15)(C), (D), (K), or (S), as well as —The petitioner has suffered substantial nonimmigrant status certifications on
certain aliens classified under section physical or mental abuse as a result of behalf of that agency, or a Federal, State,
101(a)(15)(J) of the INA, 8 U.S.C. having been a victim of qualifying or local judge. New 8 CFR 214.14(a)(3).
1101(a)(15)(J), may not change criminal activity; USCIS believes that this definition is
nonimmigrant status. VAWA 2005 —The petitioner possesses information reasonable and necessary to ensure the
amended section 248 of the INA, 8 concerning the qualifying criminal reliability of certifications. It also
U.S.C. 1258, so that even aliens within activity of which he or she was a should encourage certifying agencies to
the excepted classifications may seek a victim; develop internal policies and
change of nonimmigrant status if the —The petitioner has been, is being, or procedures so that certifications are
status sought is U nonimmigrant status. is likely to be helpful to a certifying properly vetted.
INA sec. 248(b), 8 U.S.C. 1258(b). This agency; Under this rule, the certifying official
rule adopts this statutory amendment in —The criminal activity is qualifying and must affirm the following in the
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revised 8 CFR 248.2(b) and makes occurred in the United States, certification: (1) That the person signing
structural modifications to 8 CFR 248.2 including in Indian country and the certificate is the head of the
to accommodate the revisions. The rule military installations, or the territories certifying agency or person(s) in a
also clarifies that the procedures for and possessions of the United States, supervisory role who has been
applying for U nonimmigrant status, or violated a U.S. federal law that specifically designated with the
even when changing nonimmigrant provides for extraterritorial authority to issue U nonimmigrant

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53024 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

status certifications on behalf of that whether a petitioner meets the demonstrating the incapacity or
agency, or a Federal, State, or local eligibility requirements as established incompetence of the applicant.
judge; (2) that the agency is a Federal, and defined in this rule. In addition to Evidence to further establish that the
State, or local law enforcement agency, Form I–918, Supplement B, this interim petitioner has provided the necessary
prosecutor, judge, or other authority that rule permits the petitioner to provide assistance in the investigation or
has responsibility for the detection, any additional evidence that is relevant prosecution of qualifying criminal
investigation, prosecution, conviction, and credible to help demonstrate that activity may include such
or sentencing of qualifying criminal the petitioner meets each of the documentation as: Trial transcripts,
activity; (3) that the petitioner has been eligibility requirements. New 8 CFR court documents, police reports, news
a victim of qualifying criminal activity 214.14(c)(2)(ii) and (iii). For petitioners articles, copies of reimbursement forms
that the certifying official’s agency is with interim relief, USCIS will consider for travel to and from court, and
investigating or prosecuting; (4) that the evidence previously submitted with the affidavits of other witnesses or officials.
petitioner possesses information request for interim relief as part of the If USCIS has reason to believe that there
concerning the qualifying criminal petition package. Petitioners with is a question about the petitioner’s
activity of which he or she has been a interim relief may file additional helpfulness to, or continuing
victim; (5) that the petitioner has been, evidence with Form I–918 to cooperation with, the investigation or
is being, or is likely to be helpful to an supplement this previously submitted prosecution, USCIS may contact the
investigation or prosecution of that evidence. New 8 CFR 214.14(c)(1). certifying official for further
qualifying criminal activity; and (6) that Evidence to further establish that the explanation. In cases where the
the qualifying criminal activity violated petitioner is a victim of qualifying petitioner is a child under the age of 16
U.S. law, or occurred in the United criminal activity may include: trial or is incapacitated or incompetent, this
States, its territories and possessions, transcripts, court documents, news requirement can be satisfied by the
Indian country, or at military articles, police reports, orders of parent, guardian, or next friend
installations abroad. New 8 CFR protection, and affidavits of other submitting the necessary evidence on
214.14(c)(2)(i). The certification also witnesses, such as medical personnel. behalf of the petitioner. Such person
should provide relevant, specific details Evidence to further establish the must provide evidence of their
about the nature of the crime being nature of the abuse suffered may qualifying relationship to the petitioner
investigated or prosecuted and describe, include such documentation as reports and evidence that the petitioner is a
in detail, the petitioner’s helpfulness to and affidavits from police, judges, other child under the age of 16, incapacitated,
the case. court officials, medical personnel, or incompetent. Evidence that was
USCIS developed the requirements for school officials, clergy, social workers, submitted to satisfy the possession of
Form I–918, Supplement B based upon and other social service agency information requirement will satisfy this
the eligibility requirements petitioners personnel. Petitioners who have requirement and need not be submitted
must meet and the purposes for which obtained an order of protection against twice.
the certification will be used. USCIS the perpetrator or taken other legal steps Examples of evidence to further
determined that since the certifying to protect themselves against the establish that the criminal activity is
agency is the primary point of contact perpetrator should submit copies of the qualifying and violated U.S. law or
between the petitioner and the criminal relating legal documents. A combination occurred in the United States include: A
justice system, the certifying agency is of documents such as a photograph of copy of the statutory provision(s)
in the best position to verify certain the visibly injured applicant supported showing the elements of the offense or
factual information. In addition, USCIS by affidavits of individuals who have factual information about the crime
does not believe that petitioners are in personal knowledge of the facts demonstrating that it is similar to the
the best position to know the specific regarding the criminal activity may be list of qualifying criminal activity
violation of U.S. law the certifying relevant as well. contained in section 101(a)(15)(U)(iii) of
agency is investigating or prosecuting, Evidence to further establish that the the INA, 8 U.S.C. 1101(a)(15)(U)(iii). If
or what specific statute provides the petitioner possesses information about the criminal activity occurred outside
certifying agency with the the qualifying criminal activity may the United States, the additional
extraterritorial jurisdiction to investigate include documents establishing that he evidence submitted may include a copy
or prosecute criminal activity that or she has knowledge of the details of of the statutory provision(s) providing
occurred outside the United States. the criminal activity. Examples of for the extraterritorial jurisdiction and
Therefore, USCIS determined that relevant evidence include: reports and documentation showing that the
information regarding the eligibility affidavits from police, judges, and other criminal activity violated federal law
requirements should be addressed by court officials. In cases where the and is prosecutable in a federal court.
the certifying agency on Form I–918, petitioner is a child under the age of 16,
or is incapacitated or incompetent, this c. Statement by the Petitioner
Supplement B. USCIS will use Form I–
918, Supplement B in the course of requirement can be satisfied by the In support of Form I–918, this rule
adjudicating whether the eligibility parent, guardian, or next friend requires the petitioner to submit a
requirements have been met. submitting the necessary evidence on separate statement describing the facts
behalf of the petitioner. Such person of his or her victimization. 8 CFR
b. Additional Evidence To Satisfy the must provide evidence of his or her 214.14(c)(2)(iii). USCIS is requiring that
Eligibility Requirements qualifying relationship to the petitioner the petitioner submit a statement
While USCIS will give a properly and evidence establishing the age, because USCIS believes that it is
executed certification on Form I–918, incapacity, or incompetence of the important to learn about the facts of the
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Supplement B, significant weight, petitioner. Examples of such evidence victimization from the petitioner in his
USCIS will not consider such include: birth certificates, court or her own words. This statement
certification to be conclusory evidence documents demonstrating recognition of should include the following
that the petitioner has met the eligibility an individual as the petitioner’s next information: The nature of the criminal
requirements. USCIS believes that it is friend, medical records, or reports of activity, when the criminal activity
in the best position to determine licensed medical professionals occurred, who was responsible, the

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events surrounding the criminal a. Eligibility 204(a)(1)(L) of the INA, 8 U.S.C.


activity, how the criminal activity came New 8 CFR 214.14(f)(1) sets forth two 1154(a)(1)(L), prohibits an alien victim
to be investigated or prosecuted, and eligibility requirements for derivative U from petitioning for derivative U
what substantial physical and/or mental nonimmigrant status. First, the alien nonimmigrant status on behalf of a
abuse was suffered as a result of having must be a qualifying family member. qualifying family member who
been the victim of the criminal activity. New 8 CFR 214.14(f)(1)(i). Second, the committed battery or extreme cruelty or
The statement also may include alien must be admissible to the United trafficking against the alien victim
information supporting any of the other States. New 8 CFR 214.14(f)(1)(ii); see which established his or her eligibility
eligibility requirements. also INA sec. 214(a)(1), 8 U.S.C. for U nonimmigrant status. The rule
incorporates this prohibition at new 8
When the petitioner is under the age 1184(a)(1); 8 CFR 214.1(a)(3)(i).
Generally, in order to be considered a CFR 214.14(f)(1). USCIS has interpreted
of 16, incapacitated, or incompetent, a
qualifying family member, the the prohibition as applying to qualifying
parent, guardian, or next friend must
relationship between the principal family members who committed
submit a statement in lieu of the qualifying criminal activity in a family
petitioner that contains as much petitioner and the family member must
violence or trafficking context. In
information surrounding the criminal exist at the time Form I–918 was filed.
making this determination, USCIS
activity and physical and/or mental New 8 CFR 214.14(f)(4). The
considered the plain text of section
abuse as possible. relationship must continue to exist at
204(a)(1)(L) of the INA, 8 U.S.C.
the time the petition for derivative
d. Petitioners Who Are Inadmissible 1154(a)(1)(L), and found it to be unclear
status is adjudicated, and at the time of
regarding its intended application. In
the qualifying family member’s
As stated earlier in this addition to trafficking, the statute lists
subsequent admission to the United
Supplementary Information, this rule battery and extreme cruelty as
States. Id. Otherwise, the family
requires petitioners seeking a waiver of disqualifying activity even though those
member would not meet section terms are not listed as qualifying
inadmissibility to file Form I–192,
101(a)(15)(U)(ii) of the INA, 8 U.S.C. criminal activity in section
‘‘Application for Advance Permission to
1101(a)(15)(U)(ii), describing who 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
Enter as Nonimmigrant.’’ New 8 CFR
qualifies as a family member. 1101(a)(15)(U)(iii), and are not included
212.17(a). USCIS has listed the Form I– Note that parents are only considered
192 in this rule as initial evidence in the standard of harm necessary to
qualifying family members if the establish eligibility for U nonimmigrant
which must be filed concurrently with principal is under 21 years of age and
Form I–918, along with a separate filing status. However, when the terms battery
a ‘‘child.’’ New 8 CFR 214.14(f)(1). or extreme cruelty are used in other
fee. New 8 CFR 214.14(c)(2)(iv). Form I– Although the statutory language at
192 is an established form to waive contexts in the INA, they are used to
section 101(a)(15)(U)(ii), 8 U.S.C. refer to harm occurring as a result of
grounds of inadmissibility for aliens 1101(a)(15)(U)(ii), naming parents as
seeking immigration benefits. See, e.g., domestic violence or child abuse. See
qualifying family members does not INA sections 204(a)(1)(A) & (B),
8 CFR 212.4 (general authority for specify that the principal must be a
waivers in nonimmigrant cases); 8 CFR 216(c)(4)(C), 240A(b)(2), 8 U.S.C.
child under the age of 21 for the parents 1154(a)(1)(A) & (B), 1186(c)(4)(C),
212.16 (providing for use of Form I–192 to qualify, USCIS believes that this
in T nonimmigrant status cases). 1229b. USCIS believes it is reasonable to
qualification is required by section conclude that by using these terms,
3. Derivative Family Members 101(b)(2) of the INA, 8 U.S.C. 1101(b)(2). Congress intended to prohibit approval
This provision defines the term, of petitions for U nonimmigrant status
Section 101(a)(15)(U)(ii) of the INA, 8 ‘‘child,’’ as an unmarried person under where the petition is based on
U.S.C. 1101(a)(15)(U)(ii), permits certain 21 years of age. INA sections 101(b)(1), qualifying criminal activity for which
family members accompanying or 8 U.S.C. 1101(b)(1). the qualifying family member is
following to join the alien victim to A special rule applies to unmarried responsible that occurred in a family
obtain U nonimmigrant status, siblings under age 18 of petitioners who violence or trafficking context.
regardless of whether or not they are in are under 21 years of age. For such
the United States or overseas. USCIS siblings, the statute provides that the b. Filing Procedures
refers to such family members as siblings’ age on the date that Form I–918 This rule requires that a principal
derivatives, and the alien victim as the is filed is controlling. INA sec. petitioner for U nonimmigrant status or
principal. Which family members are 101(a)(15)(U)(ii)(I), 8 U.S.C. a principal alien who has been granted
considered ‘‘qualifying’’ depends on the 1101(a)(15)(U)(ii)(I). Therefore, in new 8 U nonimmigrant status must petition for
age of the principal. If the principal is CFR 214.14(f)(4)(ii), if the principal derivative status on behalf of qualifying
under 21 years of age, qualifying family petitioner was under 21 years of age, family members by submitting a Form I–
members include the principal’s spouse, and requested U nonimmigrant status 918, Supplement A, ‘‘Petition for
children, unmarried siblings under 18 for an unmarried sibling under the age Qualifying Family Member of U–1
years of age (on the filing date of the of 18 at the time Form I–918 was filed, Recipient,’’ for each qualifying family
principal’s petition), and parents. INA USCIS will continue to consider such member. New 8 CFR 214.14(f)(2).
sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. sibling as a qualifying family member Principal petitioners can file Form I–
1101(a)(15)(U)(ii)(I). If the principal is for purposes of U nonimmigrant status 918, Supplement A either at the same
21 years of age or older, qualifying at the time of adjudication even if time or after filing his or her Form I–
family members include the spouse and circumstances change. This rule also 918. Id. Principal aliens who have
children of the principal. INA sec. provides that children born to the already received U nonimmigrant status
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101(a)(15)(U)(ii)(II), 8 U.S.C. principal petitioner after Form I–918 may file Form I–918, Supplement A at
1101(a)(15)(U)(ii)(II). This rule provides has been filed will be eligible for any time while maintaining U
the eligibility requirements and petition derivative U nonimmigrant status. New nonimmigrant status. Id. This provides
procedures for qualifying family 8 CFR 214.14(f)(4)(i). principals with maximum flexibility to
members seeking derivative status. See This rule excludes certain qualifying request derivative status for qualifying
new 8 CFR 214.14(f). family members from eligibility. Section family members.

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53026 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

This rule further requires that Form I– statute protects information relating to question about the petitioner’s
918, Supplement A must be applicants for U nonimmigrant status helpfulness to, or continuing
accompanied by supporting evidence from disclosure. 8 U.S.C. 1367(a)(2). cooperation with, the investigation or
(‘‘initial evidence’’) and the fees Moreover, the statute precludes prosecution, or any other aspect of the
required by the instructions to the form. adjudicators from making adverse petition, USCIS may contact the
Id. If the principal petitioner files Form determinations on inadmissibility or certifying official for further
I–918, Supplement A while his or her deportability with respect to petitions explanation. USCIS then will be able to
Form I–918 is pending adjudication for U nonimmigrant status based on verify the veracity of the contents of the
with USCIS, the principal petitioner information provided by the perpetrator petition and safeguard the integrity of
must accompany Form I–918, of abuse and criminal activity. 8 U.S.C. the U nonimmigrant status program.
Supplement A with a copy of his or her 1367(a)(1)(E). The number of grants of U
2. Prohibitions on Disclosure of
Form I–918. Id. If the principal already nonimmigrant status that may be made
has been granted U nonimmigrant in a fiscal year is limited by an annual Information
status, then he or she must accompany cap of 10,000. INA sec. 214(p)(2), 8 Information concerning U
Form I–918, Supplement A with a copy U.S.C. 1184(p)(2). nonimmigrant petitioners is protected
of the Form I–94 he or she received In this section of the SUPPLEMENTARY against disclosure in two ways. See 8
when the Form I–918 was approved. Id. INFORMATION, these parameters are U.S.C. 1367. First, adverse
This will be considered evidence of the discussed, as well as the steps that determinations of admissibility or
principal’s U nonimmigrant status. follow a decision to grant or deny a deportability cannot be made based on
Requiring evidence of the principal’s petition for U nonimmigrant status. information obtained solely from the
pending petition or status will enable perpetrator of substantial physical or
1. Credible Evidence
USCIS to match up the derivative mental abuse and the criminal activity.
petition with the principal’s petition. This rule adopts the statutory 8 U.S.C. 1367(a)(1)(E). Second, the
New 8 CFR 214.14(f)(3) sets forth the requirement that any credible evidence disclosure of information relating to the
initial evidence that must accompany relevant to the petition must be beneficiary of a pending or approved
each Form I–918, Supplement A: (1) considered in the adjudication of petition for U nonimmigrant status is
Evidence of the family member’s petitions for U nonimmigrant status. prohibited except in certain
qualifying relationship with the New 8 CFR 214.14(c)(4) & (f)(5). As in circumstances. 8 U.S.C. 1367(a)(2). The
principal; and (2) if the alien is the case of all other immigration statute allows information to be released
inadmissible under section 212(a) of the benefits, the burden of establishing to a sworn officer or employee of DHS,
INA, 8 U.S.C. 1182(a), Form I–192, with eligibility for U nonimmigrant status the Department of Justice, the
fee. Such initial evidence corresponds rests with the petitioner. Id. USCIS will Department of State, or a bureau or
to the two eligibility requirements for consider all evidence de novo and will agency of either of those Departments,
derivative U nonimmigrant status. not be bound by any of its prior for legitimate Department, bureau, or
determinations made during the course agency purposes. Id.
4. Designations of adjudicating an application for There are eight specific exemptions
This rule amends 8 CFR 214.1(a)(1) to interim relief on any essential element from the general nondisclosure rule:
codify the derivative subclassifications of U nonimmigrant status. Id. A grant of (1) At the discretion of the Secretary
established by section 101(a)(15)(U) of interim relief means only that the alien of Homeland Security or Attorney
the INA, 8 U.S.C. 1101(a)(15)(U). See presented prima facie evidence that he General, officials may disclose
new 8 CFR 214.1(a)(1)(ix). In addition, or she was eligible for U nonimmigrant information in the same manner and
the rule provides for the following status and does not constitute a binding circumstances as census information
designations for qualifying family determination that any given eligibility may be disclosed by the Secretary of
members of the principal applicant (U– requirement had been proven. In Commerce under 13 U.S.C. 8.
1): Spouse (U–2), child (U–3), the adjudicating Form I–918, USCIS will (2) At the discretion of the Secretary
child’s parents (U–4), and siblings (U– review all evidence submitted in of Homeland Security or Attorney
5). New 8 CFR 214.14(f)(1). This rule conjunction with the interim relief General, officials may provide for the
likewise adds these designations to application along with any additional disclosure of information to law
current 8 CFR 214.1(a)(2), to add to the evidence submitted by the petitioner in enforcement officials to be used solely
list of designations assigned to all other conjunction with his or her Form I–918, for a legitimate law enforcement
nonimmigrant classifications. These including the certification, Form I–918, purpose.
designations are a matter of Supplement B. (3) In connection with judicial review
administrative convenience, providing a This rule also provides that USCIS of a determination, information may be
shorthand notation for identifying the may review documentation submitted disclosed in a manner that protects the
principal petitioner and each derivative by the alien in conjunction with any confidentiality of such information.
based upon the relationship to the other applications he or she has made (4) Information may be disclosed if all
principal. for immigration benefits in the past. Id. the crime victims in the case are adults,
This will enable USCIS to review the and they have waived the general
C. Adjudication and Post-Adjudication petition for U nonimmigrant status in restrictions on disclosure of information
The statutory provisions establishing the context of the petitioner’s past provided by 8 U.S.C. 1367(a)(2).
U nonimmigrant status contain a immigration history and verify that (5) Information may be disclosed to
number of parameters guiding the statements made in his or her petition Federal, State, and local public and
adjudication of U nonimmigrant are consistent with information he or private agencies providing benefits, to
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petitions. Specifically, in determining she provided to USCIS in the past. In be used solely to make determinations
whether to grant U nonimmigrant status, addition, this rule provides that USCIS of eligibility for benefits pursuant to 8
the statute requires that the adjudicator may investigate any aspect of the U.S.C. 1641(c).
consider any credible evidence relevant petition. Id. This means that if, during (6) Information may be disclosed after
to the petition. See INA sec. 214(p)(4), its adjudication of Form I–918, USCIS a petition for U nonimmigrant status has
8 U.S.C. 1184(p)(4). In addition, the has reason to believe that there is a been finally denied.

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(7) Information may be disclosed on obligation to protect confidentiality. provide a stable mechanism through
closed cases to the chairmen and USCIS will make any disclosure to an which victims cooperating with law
ranking members of the Committee on investigative agency in a manner that enforcement agencies can regularize
the Judiciary of the Senate, or the provides the maximum confidentiality their immigration status.
Committee on the Judiciary of the House under the circumstances. Under this rule, once the numerical
of Representatives, for the exercise of In addition to disclosures to limit has been reached in a particular
congressional oversight authority, investigative agencies, DHS may have fiscal year, all pending and
provided the disclosure is made in a an obligation to provide portions of subsequently submitted petitions will
manner that protects the confidentiality petitions for U nonimmigrant status to continue to be reviewed in the normal
of the information and omits personally federal prosecutors for disclosure to process to determine eligibility. See new
identifying information (including defendants in pending criminal 8 CFR 214.14(d)(2). USCIS will deny
locational information about proceedings. This obligation stems from petitions that are not approvable.
individuals). constitutional requirements that pertain Eligible petitioners who are not granted
(8) With prior written consent from to the government’s duty to disclose U–1 nonimmigrant status due solely to
the principal petitioner or derivative information, including exculpatory the numerical limits will be notified by
family member, information may be evidence or impeachment material, to USCIS that they have been placed on a
disclosed to nonprofit, defendants. See U.S. Const. amend. V & waiting list. Id. Each fiscal year, as new
nongovernmental victims’ service VI; Brady v. Maryland, 373 U.S. 83, 87 numbers for U–1 nonimmigrant status
providers for the sole purpose of (1963); Giglio v. United States, 405 U.S. become available, USCIS will grant U
assisting the victim in obtaining victim 150, 154 (1972). Accordingly, this rule nonimmigrant status to petitioners on
services from programs with expertise incorporates this requirement at new 8 the waiting list. Id. Petitioners on the
working with immigrant victims. CFR 214.14(e)(1)(ix). waiting list will be given priority based
on the date the petition was properly
8 U.S.C. 1367(b). Appropriate 3. Annual Numerical Limitation on
filed. Id. Petitioners on the waiting list
disciplinary action must be taken and a Grants of U Nonimmigrant Status
must continue to meet the eligibility
monetary penalty of up to $5,000 may Before USCIS may grant U requirements for U nonimmigrant status
be imposed on anyone who willfully nonimmigrant status, it must consider and be admissible at the time status is
uses, publishes, or permits information the statutory cap on the number of granted. Id. After USCIS has granted U
to be disclosed in violation of the aliens who may receive a grant of status nonimmigrant status to petitioners on
nondisclosure provisions. 8 U.S.C. each fiscal year. See INA sec. 214(p)(2), the waiting list, USCIS will continue to
1367(c). This rule incorporates the 8 U.S.C.1184(p)(2). No more than 10,000 grant petitions, up to the annual limit,
prohibitions and restrictions on principal aliens may be granted U to new petitioners in the order in which
information relating to U nonimmigrant nonimmigrant status in a given fiscal each petition was properly filed. Id.
petitions into new 8 CFR 214.14(e). year (October 1 through September 30). This rule also provides that, USCIS
Within the bounds of the statutory INA sec. 214(p)(2)(A), 8 U.S.C. will give petitioners on the waiting list
prohibitions and restrictions against 1184(p)(2)(A). This numerical limitation deferred action or parole until the start
disclosure of information relating to a U does not apply to spouses, children, of the next fiscal year. Id. Those
nonimmigrant petitioner, USCIS may parents, and unmarried siblings who are petitioners will be eligible to apply for
provide information taken from the accompanying or following to join the employment authorization. Id. The rule
petition about any Federal, State or local principal alien victim. INA sec. further provides that petitioners on the
crimes to investigative agencies that 214(p)(2)(B), 8 U.S.C. 1184(p)(2)(B). waiting list will not accrue unlawful
have a reason to know based on a USCIS anticipates that within the first presence under section 212(a)(9)(B) of
legitimate law enforcement purpose. few fiscal years after publication of this the INA, 8 U.S.C. 1182(a)(9)(B). New 8
Possible agencies or bureaus to which regulation, it will receive petitions for U CFR 214.14(d)(3). However, at its
information may be disclosed include: nonimmigrant status from more than discretion, USCIS may remove a
The Federal Bureau of Investigation 10,000 principal aliens. USCIS is petitioner from the waiting list and
(FBI); the U.S. Attorney’s Office or the cognizant of the fact that law terminate deferred action or parole. Id.
Civil Rights or Criminal Divisions of the enforcement agencies and prosecutors For example, USCIS may terminate
Department of Justice; or U.S. need a stable mechanism through which deferred action or parole if the
Immigration and Customs Enforcement to regularize the status of victims and petitioner is convicted of a crime that
(ICE). As part of the adjudication witnesses, but is equally cognizant of renders him or her removable. USCIS
process, USCIS also may contact the the fact that Congress saw fit to limit the also may terminate deferred action or
certifying agency for the purpose of number of aliens who may be granted U parole if it becomes aware that a
assessing whether the petitioner is, has nonimmigrant status in any given fiscal petitioner has failed to disclose a
been, or is likely to be helpful to the year. USCIS has determined that to criminal conviction or has
investigation or prosecution of the balance the statutorily imposed misrepresented a material fact in his or
qualifying criminal activity. Because the numerical cap against the dual goals of her petition.
certifying agency has submitted a enhancing law enforcement’s ability to
certification on behalf of the petitioner investigate and prosecute criminal 4. Decisions on Petitions
and, therefore, has already been activity and providing protection to USCIS will issue decisions granting or
informed about the fact of the petition alien victims of crime, it will create a denying U nonimmigrant petitions in
as well as the facts upon which the waiting list should the cap be reached writing. New 8 CFR 214.14(c)(5)
petition is based, USCIS has determined in a given fiscal year before all petitions (principal petitioners); new 8 CFR
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that contacting the certifying agency are adjudicated. USCIS’s goal is to 214.14(f)(6) (derivative family
would not violate the statutory respect the intent of the numerical members). If USCIS denies a petition, it
prohibitions and restrictions against limitation imposed by Congress while will also provide reasons for the denial
disclosure. USCIS recognizes the still allowing the legislation to achieve in writing. New 8 CFR 214.14(c)(5)(ii);
sensitive nature of application maximum efficacy. USCIS believes that new 8 CFR 214.14(f)(6)(iii). In any case
information and takes seriously its this rule’s waiting list methodology will in which USCIS denies a petition for U

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53028 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

nonimmigrant status, the petitioner may 214.14(f)(6)(ii).12 The principal an aggregate of four years. Because
appeal to USCIS’s Administrative petitioner and any derivative family derivative status is based on the
Appeals Office (AAO) under established members should file for a U principal’s status, derivative status
procedures outlined in 8 CFR 103.3. Id. nonimmigrant visa with the designated initially will be approved for a period
U.S. Embassy or Consulate or port of that does not exceed the period initially
a. Granting U Nonimmigrant Status entry. If granted, the visa can be used to approved for the principal. New 8 CFR
travel to the United States for admission 214.14(g)(1). Just as with all other
If USCIS finds that the petitioner has
as a U nonimmigrant. nonimmigrant classifications, the U
satisfied the requirements for U
This rule provides that principal nonimmigrant’s Form I–94 issued to
nonimmigrant status, it will grant U
petitioners and derivative family evidence status will indicate the
nonimmigrant status to the petitioner approved period of stay. For petitioners
members who were granted interim
and derivative family members, unless who were previously accorded interim
relief and whose petition for U
the annual numerical limit applicable to relief, USCIS necessarily will indicate
nonimmigrant status is approved will be
principal petitioners has been reached. accorded U nonimmigrant status as of on Form I–94 an approved period of
New 8 CFR 214.14(c)(5)(i); new 8 CFR the date that the request for U interim stay that is less than four years.
214.14(f)(6). If a number is available for relief was approved. New 8 CFR Therefore, for example, USCIS will
the principal petitioner, USCIS will 214.14(c)(6); new 8 CFR 214.14(f)(6)(i). issue a petitioner, who was accorded
send a notice of approval on Form I– USCIS has determined that according interim relief two years ago, a Form I–
797, ‘‘Notice of Action,’’ to the principal status as of the date that interim relief 94 reflecting an approved period of stay
petitioner or, if the principal petitioner was approved is appropriate so that the for up to another two years upon the
is overseas, to the Department of State time a petitioner spent with interim grant of U nonimmigrant status.
for forwarding to the appropriate U.S. relief will count towards the three years This rule further provides that U
Embassy or Consulate or to the of continuous physical presence in U nonimmigrants can apply for an
appropriate port of entry (visa exempt nonimmigrant status required before the extension of status in two
alien). New 8 CFR 214.14(c)(5)(i)(A) and petitioner may adjust status to that of a circumstances. A U nonimmigrant may
(B). USCIS also will send to the lawful permanent resident under apply for an extension of status where
principal petitioner a notice of approval section 245(m) of the INA, 8 U.S.C. his or her status was granted for an
on Form I–797 for derivative family 1255(m). Memorandum from Michael approved period of stay of less than four
members for whom USCIS has approved Aytes, Acting Associate Director, years in the aggregate. New 8 CFR
Form I–918, Supplement A. New 8 CFR Domestic Operations, USCIS, 214.14(g)(2)(i). This may be the case, for
214.14(f)(6)(i) and (ii). If a number is not Applications for U Nonimmigrant Status example, where a U nonimmigrant is
available, USCIS will notify the (Jan. 6, 2006). In fact, the House Report outside the United States and
petitioner that, in accordance with new for VAWA 2005 indicates that members experiences delays in consular
8 CFR 214.14(d)(2), he or she has been of Congress expect this result. See H.R. processing. Because the petition for U
Rep. No. 109–233, at 114 (2005); see nonimmigrant status is granted for a
placed on the waiting list, given
also 151 Cong. Rec. E2605, E2608 specified four-year period, which runs
deferred action or parole, and may
(statement of Representative John from the date of approval by USCIS,
request employment authorization.
Conyers). Therefore, under this rule, delays in entering the United States
USCIS will also grant deferred action or would mean that the alien would not be
parole to derivative family members recipients of U nonimmigrant status will
admitted to the United States in U
with an opportunity to request be eligible to submit an application to
nonimmigrant status until after a
employment authorization. New 8 CFR adjust status three years after the date
portion of the four-year period stated in
214.14(d)(2). that interim relief was accorded, rather
the approved petition has already run.
than having to wait until three years The rule specifically addresses the
For those principal petitioners and
after the date on which USCIS approves situation where an overseas derivative
derivative family members who are
their petition for U nonimmigrant family member receives an approved
within the United States, a Form I–94, status.
‘‘Arrival-Departure Record,’’ indicating period of stay that expires on the same
U nonimmigrant status will be attached b. Duration of U Nonimmigrant Status date as the principal’s, but that is less
to the approval notice and will than four years because the derivative
Section 214(p)(6) of the INA, 8 U.S.C.
constitute evidence that the petitioner was unable to enter the United States in
1184(p)(6), provides that the duration of
has been granted U nonimmigrant a timely fashion due to delays in
U nonimmigrant status cannot exceed consular processing. Under this rule,
status. New 8 CFR 214.14(c)(5)(i)(A); four years. Extensions are permitted
new 8 CFR 214.14(f)(6)(i). For those such derivative may apply for an
upon certification from a certifying extension of status even though the
principal petitioners or qualifying agency that the alien’s presence in the
family members who are outside the principal cannot since the principal’s
United States is required to assist in the period of stay was already approved for
United States, USCIS will follow the investigation or prosecution of a four-year period. New 8 CFR
standard procedures for issuing grants qualifying criminal activity. This rule 214.14(g)(2)(i). Necessarily, an approved
as applied to other nonimmigrant incorporates this provision in new 8 period of stay based upon such
categories. USCIS will forward the CFR 214.14(g). extension of status application will
notice of approval to the Department of New 8 CFR 214.14(g)(1) provides that exceed the date on which the principal’s
State for delivery to the U.S. Embassy or U nonimmigrant status for both approved period of stay expired. The
Consulate designated on the petition, principals (U–1) and derivative family reason for this provision is so that the
which should be the U.S. Embassy or members (U–2, U–3, U–4, and U–5) may
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derivative is able to attain at least three


Consulate having jurisdiction over the be approved for a period not to exceed years in U nonimmigrant status. Such
area in which the alien is located, or to period of time in U nonimmigrant status
12 A visa exempt alien is an alien for whom a
the appropriate port of entry for a visa is necessary before the alien may apply
valid, unexpired passport is not required for
exempt alien. New 8 CFR admission to the United States. INA sec. to adjust status to that of a lawful
214.14(c)(5)(i)(B); new 8 CFR 212(d)(4)(B), 8 U.S.C. 1182(d)(4)(B); 8 CFR 212.1(i). permanent resident pursuant to section

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53029

245(m) of the INA, 8 U.S.C. 1255(m). To a. Referrals to Nongovernmental documentation for all classes of aliens.
permit extensions of status for Organizations This rule also includes more specific
derivatives in this rule, USCIS New 8 CFR 214.14(c)(5) and (f)(6) provisions regarding employment
considered the text of section 214(p)(6) adopt the requirement in section authorization documentation for U
of the INA, 8 U.S.C. 1184(p)(6). This 214(p)(3)(A), 8 U.S.C. 1184(p)(3)(A), nonimmigrants in new 8 CFR
statutory provision applies the four-year 214.14(c)(7) and 214.14(f)(7).
that, where appropriate, USCIS provide
limit for U nonimmigrant status to all U The EAD can serve as evidence of
U nonimmigrants referrals to
nonimmigrants equally, and not just to both employment authorization and
nongovernmental organizations. USCIS identity. 8 CFR 274a.2(b)(1)(v)(A)(4).
principal petitioners. In addition, it has determined that it is appropriate to
does not include a requirement that the Aliens seeking new employment or
provide such referrals to all U maintaining current employment can
derivative’s period of stay run nonimmigrants, including principals
concurrently with the principal’s period present their EAD to employers
and derivatives alike, because, as crime verifying employment authorization and
of stay. victims or family members of crime identity pursuant to the requirements of
To apply for an extension of U victims, they may be in need of section 274A(b) of the INA, 8 U.S.C.
nonimmigrant status under new 8 CFR additional assistance and information. 1324a(b), and 8 CFR 274a.2.
214.14(g)(2)(i), this rule provides that Accordingly, new 8 CFR 214.14(c)(5) For principal aliens seeking their first
the U nonimmigrant must file Form I– and (f)(6) require USCIS to include in EAD based upon U nonimmigrant
539, ‘‘Application to Extend/Change the notice approving the U status, USCIS will use the information
Nonimmigrant Status,’’ in accordance nonimmigrant petition a list of contained in Form I–918 to
with the instructions to the form. USCIS nongovernmental organizations. The automatically generate an EAD, such
requires this application of most nongovernmental organizations that will that a separate request for an EAD is not
nonimmigrants seeking to extend or be included on the list are those that can necessary. See new 8 CFR 214.14(c)(7).
change their nonimmigrant status. provide information and advice USCIS has designed the Form I–918 so
USCIS cannot grant an extension to regarding the U nonimmigrant’s options that it serves the dual purpose of
exceed an aggregate period of four years while in the United States, including requesting U nonimmigrant status and
in U nonimmigrant status. Id. information regarding options for long- employment authorization to streamline
term immigration relief. Such the application process. Therefore,
If the aggregate period of four years in
organizations can also provide the principal aliens will not have to file
U nonimmigrant status has been
principal with necessary resource tools. additional paperwork to obtain an
reached, a U nonimmigrant nevertheless
may apply for an extension of status b. Employment Authorization initial EAD.
beyond such period if the certifying For principal aliens applying for U
This rule provides for automatic nonimmigrant status from outside the
official attests that the alien’s presence employment authorization upon a grant
in the United States continues to be United States, this rule provides that the
of U nonimmigrant status, initial EAD will not be produced until
necessary to assist in the investigation implementing the requirement at the alien has been admitted to the
or prosecution of the qualifying criminal section 214(p)(3)(B) of the INA, 8 U.S.C. United States in U–1 nonimmigrant
activity. New 8 CFR 214.14(g)(2)(ii). 1184(p)(3)(B), that the Secretary of status. Id. To receive an EAD, the alien
Therefore, in order to obtain an Homeland Security confer employment must make a request to USCIS for an
extension of U nonimmigrant status on authorization on aliens granted U EAD accompanied by a copy of his or
this basis, the U nonimmigrant must file nonimmigrant status. Under new 8 CFR her Form I–94, ‘‘Arrival-Departure
Form I–539 in accordance with the 214.14(c)(7) and 8 CFR 214.14(f)(7), Record,’’ proving the alien’s admission
instructions to the form and a newly principal aliens and derivative family to the United States in U–1
executed Form I–918, Supplement B. Id. members granted U nonimmigrant nonimmigrant status. Id. No forms or
5. Benefits for U Nonimmigrants status are employment authorized filing fees are required. Id. Form I–94
incident to their U nonimmigrant status. should be submitted to the office having
Section 214(p)(3) of the INA, 8 U.S.C. This is also reflected in new 8 CFR jurisdiction over petitions for U
1184(p)(3), directs the Secretary of 274a.12(a)(19) and (20), where the rule nonimmigrant status as indicated on the
Homeland Security to provide those adds these two new categories of aliens instructions to Form I–918.
granted U nonimmigrant status certain to the existing list of aliens who are Derivative family members seeking an
benefits along with their status. The employment authorized incident to EAD must make their EAD request on a
Secretary of Homeland Security and status. Automatically conferring form separate from Form I–918,
other government officials, where employment authorization obviates the Supplement A requesting U
appropriate, must provide U need for the ministerial step of nonimmigrant status. To request an
nonimmigrants referrals to affirmatively granting employment EAD, derivative family members must
nongovernmental organizations which authorization during the adjudication of file Form I–765, ‘‘Application for
can advise such nonimmigrants of their each petition. Employment Authorization,’’ with the
options while in the United States and appropriate filing fee (or a request for a
the resources available to them. INA sec. c. Evidence of Employment
fee waiver) stated in the instructions to
214(p)(3)(A), 8 U.S.C. 1184(p)(3)(A). In Authorization
the form. New 8 CFR 214.14(f)(7);
addition, the Secretary of Homeland In addition to conferring employment revised 8 CFR 274a.13(a). USCIS could
Security must provide employment authorization automatically on U not design Form I–918, Supplement A
authorization to U nonimmigrants. INA nonimmigrants, this rule also provides to serve as a dual purpose form for
mstockstill on PROD1PC66 with RULES2

sec. 214(p)(3)(B), 8 U.S.C. 1184(p)(3)(B). for the issuance of evidence of derivative family members because the
This rule implements these employment authorization, an form is filed by the principal alien on
requirements in new 8 CFR 214.14(c)(5), Employment Authorization Document behalf of, rather than directly by,
(c)(7), (f)(6), and (f)(7), 8 CFR (EAD). To do so, this rule amends 8 CFR derivative family members.
274a.12(a)(19) and (20), and 8 CFR 274a.12(a) and 274a.13(a), which govern For derivative family members who
274a.13(a). employment authorization are within the United States, Form I–

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53030 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

765 may be filed concurrently with 6. Travel Outside the United States who may seek a waiver of the visa and
Form I–918, Supplement A, or it may be Aliens with U nonimmigrant status passport requirements for unforeseen
filed at a later time. New 8 CFR may travel outside the United States. emergencies. See revised 8 CFR
214.14(f)(7). For derivative family However, in order to return to the 212.1(g). This waiver may apply to a U
members who are outside the United United States, such aliens must obtain nonimmigrant who needs to travel
States, Form I–765 must be filed with a U nonimmigrant visa for re-entry to outside the United States but, due to an
the office having jurisdiction over the United States unless they are visa unforeseen emergency, is unable to
petitions for U nonimmigrant status, as exempt. 8 CFR 212.1. They also should obtain a passport from his or her
specified in the instructions to the Form keep in mind that if they accrued more country of citizenship or nationality or
I–765, after their admission to the than 180 days of ‘‘unlawful presence’’ a visa from a U.S. Embassy or Consulate
United States in U nonimmigrant status. prior to obtaining U nonimmigrant in order to re-enter the United States.
Id. They should include a copy of their status, they may be found inadmissible This waiver also may apply to a
approval notice for U nonimmigrant petitioner for U nonimmigrant status
upon their return to the United States.
classification, a copy of their passport, who is outside the United States, but
See INA sec. 212(a)(9)(B), 8 U.S.C.
and a copy of their Form I–94. This who needs to enter the United States
1182(a)(9)(B). Any alien other than a
due to an unforeseen emergency after
supporting documentation is necessary lawful permanent resident who was
Form I–918 is adjudicated but before he
to verify identity and confirm the alien’s unlawfully present in the United States
or she has received a visa from a U.S.
physical presence in the United States between 180 days and one year and
embassy or consular office or obtained
and U nonimmigrant status. departs the United States is barred from
a passport from his or her country of
Whether automatically generated or readmission to the United States for
citizenship or nationality. For example,
generated based on Form I–765, USCIS three years from the date of departure.
USCIS anticipates that this waiver could
will issue the initial EAD on Forms I– INA sec. 212(a)(9)(B)(i)(I), 8 U.S.C. be needed where government officials
766 or I–688B, valid for no longer than 1182(a)(9)(B)(i)(I). If the alien was from the alien victim’s home country
the approved period of stay in U unlawfully present for more than one are implicated in the criminal activity,
year, he or she is barred from seeking and, as a result, the petitioner is unable
nonimmigrant status. U nonimmigrants
readmission for a period of 10 years to obtain a passport or safely travel to
whose EADs will expire earlier may
from the date of departure. INA sec. the U.S. Embassy or Consulate to obtain
request a renewal EAD. Renewal
212(a)(9)(B)(i)(II), 8 U.S.C. a visa. A waiver may also be needed
requests must be made on Form I–765
1182(a)(9)(B)(i)(II). An alien is deemed where the perpetrator is not in custody,
in accordance with form instructions
to be unlawfully present in the United has made threats against the petitioner,
and with the appropriate fee or request States if he or she remains in the United
for a fee waiver. and the petitioner needs to enter the
States after the expiration of an United States immediately to ensure his
This rule also makes conforming authorized period of stay or is present or her safety.
amendments to 8 CFR parts 274a.12 and in the United States without being As under the current regulatory
274a.13. New 8 CFR 274a.12(a)(19) admitted or paroled. INA sec. provision, this rule maintains that all
provides that principal nonimmigrants 212(a)(9)(B)(ii), 8 U.S.C. eligible nonimmigrants must request a
in U–1 status are employment 1182(a)(9)(B)(ii). U nonimmigrant aliens waiver on Form I–193, ‘‘Application for
authorized incident to status and do not subject to the unlawful presence ground Waiver of Passport and/or Visa.’’
need to apply to USCIS for a document of inadmissibility may request a waiver Revised 8 CFR 212.1(g). New 8 CFR
evidencing this employment of inadmissibility on Form I–192, as 212.1(p) authorizes the director of the
authorization. New 8 CFR 274a.12(a)(20) discussed earlier in this Supplementary office having jurisdiction over the
and revised 8 CFR 274a.13(a) provide Information, prior to or upon their adjudication of Form I–918 to
that derivative family members in U–2, return to the United States. adjudicate the waiver application.
U–3, U–4, and U–5 nonimmigrant status For nonimmigrants seeking admission This rule makes a technical correction
are employment authorized incident to to the United States, a valid, unexpired to current 8 CFR 212.1(g) by deleting the
status, but must apply to USCIS for passport is required in addition to a reference to ‘‘Deputy Commissioner.’’
employment authorization valid visa, unless an exemption applies. This position no longer exists after DHS
documentation. See INA sec. 212(a)(7)(B), 8 U.S.C. took over the functions of the former
1182(a)(7)(B); 8 CFR 212.1. In Immigration and Naturalization Service
This rule also makes technical unforeseen emergency situations, these in March of 2003. See 6 U.S.C. 291(a).
corrections to 8 CFR parts 274a.12 and requirements may be waived for certain
274a.13(a) to eliminate certain errors. categories of nonimmigrants. INA sec. 7. Revocation of U Nonimmigrant Status
The corrections clarify: (1) That asylees 212(d)(4)(A), 8 U.S.C. 1182(d)(4)(A); 8 This rule establishes USCIS’s
described in 8 CFR 274a.12(a)(5) and T CFR 212.1(g). This rule extends authority to revoke its approval of Form
nonimmigrants described in 8 CFR eligibility to apply for this waiver to U I–918 and Form I–918, Supplement A,
274a.12(a)(16) do not need to apply to nonimmigrants and petitioners for U and any waivers of inadmissibility that
USCIS in order to receive a document nonimmigrant status. USCIS believes were granted in conjunction with the
evidencing their employment that such an extension is necessary petition. New 8 CFR 214.14(h).
authorization incident to status; and (2) because U nonimmigrants or petitioners Revocation authority flows from section
that aliens granted Family Unity for U nonimmigrant status, as crime 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1).
benefits under the LIFE Act described in victims, may be faced with threats to This provision authorizes the Secretary
8 CFR 274a.12(a)(14) and V their lives or safety which may make of Homeland Security to prescribe, by
nonimmigrants described in 8 CFR
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them unable to timely obtain a visa or regulation, the time and conditions of
274a.12(a)(15) must apply to USCIS in passport. admission of any nonimmigrant.
order to receive a document evidencing Accordingly, this rule amends 8 CFR Implicit in this authority is the authority
such employment authorization. This 212.1(g) to add U–1, U–2, U–3, U–4, and to prescribe the conditions under which
rule also reserves 8 CFR 274a.12(a)(17) U–5 nonimmigrants and those seeking nonimmigrant status may be revoked.
and (18) for future use. such status to the list of nonimmigrants Revocation of an approved U

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53031

nonimmigrant status petition eligibility requirement for U principal alien, the number will be
necessarily results in the termination of nonimmigrants, including derivatives, deemed to have been used and cannot
U nonimmigrant status. New 8 CFR seeking to adjust status to that of a be used again. In developing this rule,
214.14(h)(4). lawful permanent resident. See INA sec. USCIS considered providing for re-use
The rule establishes two forms of 245(m), 8 U.S.C. 1255(m). of the number. However, USCIS
revocation: Automatic and by notice. At new 8 CFR 214.14(h)(2)(ii), this determined that not only would it be
Automatic revocation applies where a rule provides that the notice of intent to infeasible to track such numbers, USCIS
principal alien with an approved U revoke must be in writing and contain does not believe it has the statutory
nonimmigrant petition who applied a statement of the grounds for the authority to recapture the numbers after
from outside the United States notifies revocation. This provision also states the end of each fiscal year.
USCIS that he or she will not use the that the alien may submit evidence in
approved petition to enter the United rebuttal within 30 days of the date of the 8. Removal Proceedings
States. New 8 CFR 214.14(h)(1). notice, which is the standard amount of This rule provides for another means
Revocation by notice is at the time given for rebutting a notice of for terminating U nonimmigrant status.
discretion of USCIS. See new 8 CFR intent to revoke. See, e.g., 8 CFR New 8 CFR 214.14(i) states that USCIS
214.14(h)(2). This rule establishes the 214.2(h)(11)(iii)(B); 8 CFR 214.11(s)(2). may exercise its existing authority to
following bases for revocations by The rule mandates that USCIS must institute removal proceedings under
notice: (1) Where the certifying official consider all relevant evidence presented section 239 of the INA, 8 U.S.C. 1229,
withdraws the U nonimmigrant status in deciding whether to revoke the for conduct committed after admission,
certification upon which the principal U approval of the petition. The rule for conduct or a condition that was not
nonimmigrant’s petition was based or provides that just as with the initial disclosed to USCIS prior to the granting
disavows the contents of the adjudication of Form I–918, the of U nonimmigrant status, for
certification in writing; (2) where determination of what is relevant misrepresentations of material facts in
approval of the petition was in error; (3) evidence and the weight to be given to the Form I–918, Form I–918,
where there was fraud in the petition; that evidence will be within the sole Supplement A, or supporting
(4) where a derivative’s relationship to discretion of USCIS. If USCIS revokes documentation, or after revocation of U
the principal has terminated; and (5) approval of a petition and thereby nonimmigrant status. Each of these
where the principal’s approved petition terminates U nonimmigrant status, circumstances may give rise to a ground
for U–1 nonimmigrant status is revoked. USCIS will provide the alien with a of removability under section 237(a) of
Id. USCIS has determined that written notice of revocation that the INA, 8 U.S.C. 1227(a).
revocation of a petition by notice in explains the specific reasons for the D. Filing and Biometric Services Fees
cases where the certification is revocation. New 8 CFR 214.14(h)(2)(ii).
withdrawn is appropriate because when For revocations by notice, this rule USCIS has determined that no fee will
that occurs, the principal no longer permits appeals to USCIS’s AAO. New be charged for filing Form I–918 or for
meets the requirements for U 8 CFR 214.14(h)(3). The rule requires derivative U nonimmigrant status for
nonimmigrant status as described by appeals to be submitted within 30 days qualifying family members. See 72 FR
section 101(a)(15)(U) of the INA, 8 of the date of the notice of revocation. 29851, at 29865. Petitioners must,
U.S.C. 1101(a)(15)(U), and therefore, is USCIS believes this is a reasonable however, submit the established fee for
no longer maintaining status. A amount of time for the petitioner to biometric services for each person ages
nonimmigrant who fails to maintain appeal the decision and is in keeping 14 through 79 inclusive with each U
nonimmigrant status is removable from with the desire to promote nonimmigrant status petition. New 8
the United States under section administrative efficiency and finality in CFR 214.14(c)(2)(iv). USCIS recognizes
237(a)(1)(C)(i) of the INA, 8 U.S.C. adjudications. In addition, a timeframe that many petitioners for U
1227(a)(1)(C)(i). USCIS has determined of 30 days to file an appeal is a standard nonimmigrant status may be unable to
that revocation of a petition by notice in period for filing an appeal. See, e.g., 8 pay the biometric services fee.
cases of fraud or error is appropriate CFR 103.3(a)(2)(i); 8 CFR Petitioners who are financially unable to
because both bases indicate that the 214.2(h)(12)(ii). Appeals are not pay the biometric services fee may
petitioner may have obtained a benefit permitted for automatic revocations. submit an application for a fee waiver,
for which he or she was not eligible. New 8 CFR 214.14(h)(3). Once the as outlined in 8 CFR 103.7(c). The
USCIS has also determined that certifying agency has withdrawn the granting of a fee waiver will be at the
revocation of a derivative petition where certification, the alien ceases to be sole discretion of USCIS. See 72 FR
the relationship to the principal has statutorily eligible for U nonimmigrant 29851, at 29865. Further guidance on
terminated or where the principal’s U– status, and there is no basis for an fee waivers can be found on USCIS’s
1 nonimmigrant status has been revoked appeal. Web site at http://www.uscis.gov/
is appropriate because, as a general Once USCIS revokes a principal graphics/formsfee/forms/index.htm.
matter, a derivative’s status is alien’s approved petition for U This program involves the personal
dependent upon the principal’s status. nonimmigrant status, USCIS will also well-being of a few applicants and
This rule classifies these bases for deny any pending U nonimmigrant petitioners, and the decision to waive
revocation as discretionary rather than petitions for qualifying family members. the petition fee reflects the
automatic because USCIS recognizes New 8 CFR 214.14(h)(4). Without an humanitarian purposes of the
that there may be instances in which approved petition for U nonimmigrant authorizing statutes. This blanket fee
revocation of the derivative petition is status for the principal, there is no exemption is because it is consistent
not warranted. For example, revocation statutory basis for granting U–2, U–3, with the legislative intent to assist
mstockstill on PROD1PC66 with RULES2

of the derivative petition may not be U–4, or U–5 derivative status. persons in these circumstances. Also,
warranted where the derivative is This rule provides that revocation of anecdotal evidence indicates that
providing valuable assistance to the a previously approved petition will applicants under these programs are
certifying agency in the investigation or have no effect on the annual cap. New generally deserving of a fee waiver.
prosecution of criminal activity. 8 CFR 214.14(h)(4). Therefore, once a U Thus, USCIS determined that these
Providing such assistance is an nonimmigrant status is granted to a programs would likely result in such a

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53032 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

high number of waiver requests that exception); Petry v. Block, 737 F.2d Regulatory Management Division, U.S.
adjudication of those requests would 1193, 1201 (D.C. Cir. 1984) (agency’s Citizenship and Immigration Services,
overtake the adjudication of the benefit good cause argument was justifiable ‘‘in Department of Homeland Security, 111
requests themselves. light of extremely limited timeframe Massachusetts Avenue, NW., 3rd Floor,
given by Congress in relation to amount Washington, DC 20529, rfs.regs@dhs.gov
IV. Regulatory Requirements of work required to produce rule.’’). (e-mail).
A. Administrative Procedure Act Section 828 of the Violence Against
Women and Department of Justice B. Regulatory Flexibility Act
USCIS has determined that delaying
this rule to allow public comment Reauthorization Act of 2005 (Pub. L. The Regulatory Flexibility Act (RFA)
would be impracticable and contrary to 109–162, January 5, 2006) requires DHS (5 U.S.C. 605(b)), as amended by the
the public interest; thus, this rule is to publish regulations required by that Small Business Regulatory Enforcement
being published as an interim final rule Act within 180 days after enactment and Fairness Act of 1996 (SBRFA),
(i.e., July 4, 2006). Unfortunately, the requires an agency to prepare and make
and is effective 30 days after
statutory and regulatory framework of available to the public a regulatory
publication. Nonetheless, USCIS invites
U.S. immigration laws is exceedingly flexibility analysis that describes the
comments and will address comments
complex. See Zadvydas v. Davis, 533 effect of the rule on small entities (i.e.,
in the final rule.
USCIS finds a compelling public need U.S. 678 (2001). Plus, these regulations small businesses, small organizations,
for rapid implementation of this rule have required input and coordination and small governmental jurisdictions).
justifying the exception allowed by the with law enforcement agencies affected RFA analysis is not required when a
by this rule to balance its humanitarian rule is exempt from notice and comment
Administrative Procedure Act (APA) to
goals and law enforcement interests. rulemaking under 5 U.S.C. 553(b).
the requirements for soliciting public
Accordingly, DHS finds that good USCIS has determined that this rule is
comment before a rule shall take effect. cause exists under 5 U.S.C. 553(b) to
5 U.S.C. 553(b)(3)(B). This exception exempt from notice and comment
make this interim rule effective 30 days rulemaking pursuant to 5 U.S.C.
should be used by agencies in cases, following publication in the Federal
such as this, where delay could result in 553(b)(B). Further, this regulation
Register, before closure of the 60-day directly regulates individuals, not small
serious harm. See, Jifry v. Fed. Aviation public comment period. DHS
Admin., 370 F.3d 1174 (D.C. Cir. 2004) entities as that term is defined under the
nevertheless invites written comments RFA. Therefore, an RFA analysis is not
(finding the exception excuses notice on this interim rule, and will consider
and comment where delay could result required for this rule.
any timely comments in preparing a
in serious harm). Congress created the final rule. C. Unfunded Mandates Reform Act of
new U classification to curtail criminal DHS notes that in compliance with 1995
activity, protect victims of crimes the Paperwork Reduction Act, USCIS
committed against them in the United published notices in the Federal This rule will not result in the
States, and encourage victims to fully Register requesting public comment on expenditure by State, local and tribal
participate in the investigation of the Form I–918, ‘‘Petition for U governments, in the aggregate, or by the
crimes and the prosecution of the Nonimmigrant Status,’’ Supplement A, private sector, of $100 million or more
perpetrators. See BIWPA sec. 1513(a)(2). ‘‘Petition for Qualifying Family Member in one year, and it will not significantly
Many immigrant crime victims fear of U–1 Recipient,’’ and Supplement B, or uniquely affect small governments.
coming forward to assist law ‘‘U Nonimmigrant Status Certification.’’ Therefore, no actions were deemed
enforcement until this rule is effective. See 70 FR 72460 (Dec. 5, 2005) (60-day necessary under the provisions of the
Thus, continued delay of this rule notice); 71 FR 32117 (June 2, 2006) (30- Unfunded Mandates Reform Act of
further exposes victims of these crimes day notice). The instructions to these 1995.
to danger, and leaves their legal status forms include descriptions of the D. Small Business Regulatory
in an indeterminate state. Moreover, the eligibility and evidentiary requirements Enforcement Fairness Act of 1996
delay prevents law enforcement for obtaining U nonimmigrant status.
agencies from receiving the benefits of USCIS received 55 comments in This rule is not a major rule as
the BIWPA and continues to expose the response to the 60-day notice. The defined by section 804 of the Small
U.S. to security risks and other effects comments addressed the Business Regulatory Enforcement Act of
of human trafficking. Therefore, delay in comprehension, readability, and burden 1996. This rule will not result in an
the implementation of these regulations estimate of the form, as well as the annual effect on the economy of $100
would be contrary to the public interest. substance of the form instructions. The million or more; a major increase in
Further, USCIS finds that the good substantive comments primarily focused costs or prices; or significant adverse
cause exception is warranted by the on seven general areas: (1) Changes effects on competition, employment,
statutorily imposed deadline and the required by intervening legislation; (2) investment, productivity, innovation, or
complicated nature of this rule. the certification process; (3) instructions on the ability of United States-based
Agencies may bypass public comment for interim relief recipients; (4) filing companies to compete with foreign-
when a statutorily imposed deadline is deadlines; (5) fees; (6) the admissibility based companies in domestic and
combined with a complicated statutory requirement; and (7) the evidence export markets.
or regulatory scheme and there is either standard. In response to these E. Executive Order 12866 (Regulatory
evidence that the agency has been comments, USCIS revised the forms for Planning and Review)
diligent in its efforts to comply with the the 30-day notice and incorporated the
statutory deadline or a compelling need comments, as appropriate, into this This rule is considered by USCIS to
mstockstill on PROD1PC66 with RULES2

for rapid implementation of the interim rule. USCIS received no be a significant regulatory action under
regulation. See Methodist Hosp. of comments in response to the 30-day Executive Order 12866, section 3(f),
Sacramento v. Shalala, 38 F.3d 1225 notice. Regulatory Planning and Review.
(D.C. Cir. 1994) (5 month statutory To review the forms, a summary of Accordingly, this regulation has been
deadline and complex regulatory the public comments, and USCIS’ submitted to the Office of Management
framework constituted good cause for response to the comments, contact the and Budget for review.

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53033

This rule establishes the requirements Petitioners and qualifying family transportation costs. The total cost of
and procedures for aliens seeking members will also be required to travel compliance to this rule each fiscal year
nonimmigrant status under the U to the nearest USCIS Application by 36,000 persons is $6,182,000
classification. The U nonimmigrant Support Center (ASC) to provide ($2,880,000 + $2,982,000 million +
classification is available to alien biometrics information. While travel $320,400).
victims of certain criminal activity who times and distances will vary, USCIS
2. Treatment of Petitions That Exceed
assist government officials in estimates the average round-trip to an
the Statutory Cap
investigating or prosecuting that ASC will be 20 miles, and that the
criminal activity, and provides average time for that trip will be an The number of petitions for U–1
temporary immigration benefits hour. It will take an average of one hour nonimmigrant status that USCIS may
(nonimmigrant status and employment for a petitioner or qualifying family grant is limited to 10,000 in any fiscal
authorization), potentially leading to member to wait for service, and to have year (October 1 through September 30).
permanent resident status. This rule his or her biometrics collected. Total INA sec. 214(p)(2), 8 U.S.C. 1184(p)(2).
requires and establishes an application time for each individual to comply with USCIS anticipates receiving 12,000
process for U nonimmigrant status and this requirement is two hours. petitions each fiscal year. Therefore, the
employment authorization, designating As previously discussed, USCIS potential exists that the number of
Form I–918 as the form that petitioners expects to receive a total of 36,000 forms approvable petitions per fiscal year will
must use to request U nonimmigrant (12,000 Forms I–918 and 24,000 Forms exceed the numerical limit (i.e., cap).
status. This rule also imposes petition I–918, Supplement A) annually. USCIS has identified the following four
requirements and processing fees. However, USCIS does not know how alternatives, the first being chosen for
many of these forms will be filed by this rule:
1. Costs to Petitioners adults on behalf of children. 1. USCIS would adjudicate petitions
USCIS estimates the total annual cost Consequently, it is difficult for USCIS to on a first in, first out basis. Petitions
of this interim rule to be $6,182,000. estimate the opportunity cost of time for received after the limit has been reached
This cost includes the biometric the 36,000 petitioners and qualifying would be reviewed to determine
services fee that the petitioner must pay family members with precision. For the whether or not they are approvable but
to USCIS, the opportunity cost of time purpose of this economic analysis, for the numerical cap. Approvable
needed to submit the required forms, USCIS will assume that all petitioners petitions that are reviewed after the
the opportunity cost of time required for and qualifying family members are numerical cap has been reached would
a visit to an Application Support Center, adults and use an opportunity cost of be placed on a waiting list and written
and the cost of traveling to an time based on national wage rates. notice would be sent to the petitioner.
Application Support Center. Below, Specifically, USCIS is using the mean Priority on the waiting list would be
these costs are described in more detail. national hourly wage rate from the based upon the date on which the
This rule requires any individual Bureau of Labor Statistics (BLS) for 2003 petition is filed. USCIS would provide
seeking U nonimmigrant status to pay as a proxy for the opportunity cost of an petitioners on the waiting list with
the prescribed biometric services fee. individual’s time. BLS estimates for interim relief until the start of the next
This fee is currently $80 per person. See ‘‘All Occupations’’ the mean hourly fiscal year in the form of deferred
72 FR 29851. wage was $17.75 in 2003. Using this action, parole, or a stay of removal. At
USCIS estimates that it will receive BLS wage data, USCIS estimates the the beginning of the next fiscal year,
12,000 Forms I–918 and 24,000 Forms total cost for petitioner time spent is petitions on the waiting list would be
I–918, Supplement A each fiscal year. $1,491,000 (12,000 persons × 7.0 hours granted first. Advantages to this
Therefore, USCIS estimates that this × $17.75) for Form I–918 petitioners, alternative include: assisting law
rule will cost petitioners $960,000 and $1,491,000 (24,000 persons × 3.5 enforcement agencies by allowing the
(12,000 × $80 biometric services charge) hours × $17.75) for Form I–918, alien victim to remain in the United
in fees for Forms I–918, and $1,920,000 Supplement A petitioners and States to assist in the investigation or
(24,000 × $80 biometric services charge) qualifying family members. prosecution of criminal activity while
in fees for Forms I–918, Supplement A. Additionally, there is the cost of waiting for new numbers to become
The total cost of this rule to petitioners travel. USCIS anticipates that most available; improving customer service
will be $2,880,000 in biometric services petitioners will drive privately-owned by allowing victims to remain in the
fees each fiscal year. vehicles to the ASCs. The General United States, giving them an
Additionally, USCIS estimates that Services Administration (GSA) opportunity to access victims services to
each Form I–918 petitioner will spend establishes a reimbursement rate that is which they may be entitled; and
5 hours complying with this rule. USCIS used when privately owned vehicles are providing employment authorization to
estimates that each petitioner will spend used by federal employees while on alien victims so they will have a lawful
75 minutes reading the Form I–918 official travel. We consider this GSA means through which to support
instructions. It will take 75 minutes to reimbursement rate to be a reasonable themselves and their families.
complete the form and 150 minutes to proxy for the cost of driving to an ASC. Disadvantages include additional
assemble and submit the form, for a This reimbursement rate fluctuates over administrative and case management
total of 300 minutes of each petitioner’s time; however, as of January 1, 2006, costs to USCIS due to the need to
time. USCIS estimates that petitioners GSA calculates the cost of operating a maintain a waiting list during the fiscal
also submitting Form I–918, privately-owned vehicle as 44.5 cents a year and to adjudicate interim relief. In
Supplement A will spend 1 hour and 30 mile. Therefore, USCIS calculates the addition, those applying for U
minutes complying with this rule. transportation costs as $320,400 (36,000 nonimmigrant status from outside the
persons × 44.5 cents per mile × 20
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USCIS estimates that each petitioner United States may be disadvantaged


will spend 30 minutes reading the miles). because they will not be able to enter
instructions to Form I–918, Supplement In summary, USCIS estimates the total the United States while waiting for a
A, 30 minutes to complete the form, and cost of the program would be $2,880,000 new number to become available.
30 minutes to assemble and submit the in biometric services fees, $2,982,000 2. USCIS would adjudicate petitions
form. million in time and $320,400 in on a first in, first out basis, establishing

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53034 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

a waiting list for petitions that are rejected which would result in financial family well-being by encouraging
pending or received after the numerical losses to the petitioners. vulnerable individuals who have been
cap has been reached. Priority on the 4. USCIS would adjudicate petitions victims of certain criminal activity, or in
waiting list would be based upon the on a first in, first out basis. However, some cases, whose family members have
date on which the petition was filed. new filings would be rejected once the been victims of certain criminal activity,
USCIS would not provide interim relief numerical cap is reached. No waiting to report the criminal activity, and by
to petitioners whose petitions are placed list would be established, nor would providing critical assistance and
on the waiting list. This means that interim relief be granted. Advantages to benefits. Additionally, this regulation
petitioners who are not in status would this approach include no additional allows qualifying family members to
be accruing unlawful presence and administrative or case management obtain U nonimmigrant status once the
would be removable. At the beginning costs since it would allow rejection once principal petitioner has received status.
of the next fiscal year, petitions on the the cap is reached, and equal treatment
for those applying from outside the I. Paperwork Reduction Act
waiting list would be adjudicated first.
United States. Disadvantages include:
The primary advantage of this This rule establishes application
depriving law enforcement of
alternative is that it eliminates the need requirements and procedures for aliens
cooperating alien victims for those
for petitioners to file a new petition to receive U nonimmigrant status,
whose petitions are rejected; depriving
each year and keeps petitions in rejected petitioners access to victims defined in section 101(a)(15)(U) of the
process. Disadvantages of this services to which they may be entitled; INA, 8 U.S.C. 1101(a)(15)(U). Some of
alternative include: little assurance that disadvantaging those who are unable to the information collection requirements
the alien victim will not be removed file early in the fiscal year; and contained in this rule have been cleared
from the United States; law enforcement potentially impeding case processing by the Office of Management and
has no assurance that the alien victim efficiency by causing adjudication to Budget (OMB) under the provisions of
will be present in the United States to occur in waves (i.e., busy during the the Paperwork Reduction Act. Clearance
assist in the investigation or prosecution beginning of the fiscal year and then numbers for these collections are
of criminal activity; without permission slow once the cap is reached). contained in 8 CFR 299.5, Display
to remain in the U.S., the alien victim USCIS chose the first alternative for this Control Numbers, and are noted herein.
may be deprived of victims services to rule because USCIS believes that it best Form I–192, ‘‘Application for Advance
which they may be entitled. This meets the goals of the BIWPA by both Permission to Enter as Nonimmigrant,’’
approach would also result in ensuring the protection of alien victims OMB Control Number 1615–0017; Form
additional administrative and case and minimizing the risk of disruptions I–193, ‘‘Application for Waiver of
management costs by creating the need to criminal investigations and Passport and/or Visa,’’ OMB Control
to maintain a waiting list during the prosecutions. Number 1653–0004; Form I–539,
fiscal year and could create a perpetual USCIS solicits comments on these ‘‘Application to Extend/Change
waiting list/backlog. alternatives, as well as other proposals Nonimmigrant Status,’’ OMB Control
3. USCIS would adjudicate petitions for managing the numerical limitation Number 1615–0003; Form I–765,
on a first in, first out basis. However, on grants of U nonimmigrant status. ‘‘Application for Employment
new filings would be reviewed to Authorization,’’ OMB Control Number
F. Executive Order 13132 (Federalism) 1615–0040.
identify particularly compelling cases
for adjudication. New filings would be This rule will not have substantial In addition, this rule requires that an
rejected once the numerical cap is direct effects on the States, on the alien submit a completed Form I–918,
reached. No official waiting list would relationship between the National ‘‘Petition for U Nonimmigrant Status,’’
be established; however, interim relief Government and the States, or on the and supporting documentation to apply
until the start of the next fiscal year distribution of power and for U nonimmigrant status. This Form
would be provided for some compelling responsibilities among the various I–918 and supporting documentation is
cases. If a case was not particularly levels of government. Therefore, in considered a new information collection
compelling, the filing would be denied accordance with section 6 of Executive under the Paperwork Reduction Act.
or rejected. The advantage to this Order 13132, it is determined that this OMB has approved this new
approach is that it would provide a rule does not have sufficient federalism information collection in accordance
mechanism to ensure that certain alien implications to warrant the preparation with the Paperwork Reduction Act of
victims needed for the investigation or of a federalism summary impact 1995 and assigned it OMB Control
prosecution of criminal activity would statement. Number 1615–0104.
be able to remain in the United States. G. Executive Order 12988 (Civil Justice
List of Subjects
Disadvantages include: difficulty in Reform)
establishing balanced standards This rule meets the applicable 8 CFR Part 103
regarding who will receive interim standards set forth in sections 3(a) and
relief; depriving alien victims not given Administrative practice and
3(b)(2) of Executive Order 12988.
interim relief of victims’ services to procedure, Authority delegations
which they may be entitled; and H. Family Assessment (Government agencies), Fees, Forms,
depriving law enforcement of assistance I have reviewed this regulation and Freedom of information, Privacy,
of victims not given interim relief. An have determined that it may affect Reporting and recordkeeping
additional disadvantage would be that family well-being as that term is defined requirements, Surety bonds.
mstockstill on PROD1PC66 with RULES2

petitioners would have to pay the filing in section 654 of the Treasury General 8 CFR Part 212
fee in order for USCIS to review the Appropriations Act, 1999, Public Law
petition to determine whether it was 105–277, Div. A. Accordingly, I have Administrative practice and
particularly compelling and merited assessed this action in accordance with procedure, Aliens, Immigration,
interim relief. A large percentage of the the criteria specified by section Passports and visas, Reporting and
petitions would likely be denied or 654(c)(1). This regulation will enhance recordkeeping requirements.

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53035

8 CFR Part 214 PART 212—DOCUMENTARY 214.14, must submit Form I–192,
REQUIREMENTS: NONIMMIGRANTS; ‘‘Application for Advance Permission to
Administrative practice and WAIVERS; ADMISSION OF CERTAIN Enter as Non-Immigrant,’’ in accordance
procedure, Aliens, Cultural exchange INADMISSABLE ALIENS; PAROLE with the form instructions, along with
programs, Employment, Foreign Form I–918, ‘‘Petition for U
officials, Health professions, Reporting ■ 3. The authority citation for part 212 Nonimmigrant Status,’’ or Form I–918,
and recordkeeping requirements, continues to read as follows: Supplement A, ‘‘Petition for Qualifying
Students, victims. Authority: 8 U.S.C. 1101 and note, 1102, Family Member of U–1 Recipient.’’ An
1103, 1182 and note, 1184, 1187, 1223, 1225, alien in U nonimmigrant status who is
8 CFR Part 248 1226, 1227. seeking a waiver of section 212(a)(9)(B)
Aliens, Reporting and recordkeeping ■ 4. Section 212.1 is amended by of the Act, 8 U.S.C. 1182(a)(9)(B)
requirements. revising paragraph (g) and adding a new (unlawful presence ground of
paragraph (p) to read as follows: inadmissibility triggered by departure
8 CFR Part 274a from the United States), must file Form
§ 212.1 Documentary requirements for I–192 prior to his or her application for
Administrative practice and nonimmigrants.
re-entry to the United States in
procedure, Aliens, Employment, * * * * * accordance with the form instructions.
Penalties, Reporting and recordkeeping (g) Unforeseen emergency. A (b) Treatment of waiver application.
requirements. nonimmigrant seeking admission to the (1) USCIS, in its discretion, may grant
United States must present an Form I–192 based on section 212(d)(14)
8 CFR Part 299 unexpired visa and passport valid for of the Act, 8 U.S.C. 1182(d)(14), if it
the amount of time set forth in section determines that it is in the public or
Immigration, Reporting and
212(a)(7)(B) of the Act, 8 U.S.C. national interest to exercise discretion
recordkeeping requirements.
1182(a)(7), or a valid biometric border to waive the applicable ground(s) of
■ Accordingly, chapter I of title 8 of the crossing card, issued by the DOS on inadmissibility. USCIS may not waive a
Code of Federal Regulations is amended Form DSP–150, at the time of ground of inadmissibility based upon
as follows: application for admission, unless the section 212(a)(3)(E) of the Act, 8 U.S.C.
nonimmigrant satisfies the requirements 1182(a)(3)(E). USCIS, in its discretion,
PART 103—POWERS AND DUTIES; described in one or more of the may grant Form I–192 based on section
AVAILABILITY OF RECORDS paragraphs (a) through (f) or (i), (o), or 212(d)(3) of the Act, 8 U.S.C. 1182(d)(3),
(p) of this section. Upon a except where the ground of
■ 1. The authority citation for part 103 nonimmigrant’s application on Form I– inadmissibility arises under sections
continues to read as follows: 193, ‘‘Application for Waiver of 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),
Authority: 5 U.S.C. 552, 552a; 8 U.S.C.
Passport and/or Visa,’’ a district director (3)(C), or (3)(E) of the Act, 8 U.S.C.
1101, 1103, 1304, 1356; 31 U.S.C. 9701; may, in the exercise of his or her 1182(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),
Public Law 107–296, 116 Stat. 2335 (6 U.S.C. discretion, on a case-by-case basis, (3)(C), or (3)(E).
1 et seq.); E.O. 12356, 47 FR 14874, 15557, waive the documentary requirements, if (2) In the case of applicants
3 CFR, 1982 Comp., p. 166; 8 CFR part 2. satisfied that the nonimmigrant cannot inadmissible on criminal or related
present the required documents because grounds, in exercising its discretion
■ 2. Section 103.7(b)(1) is amended by of an unforeseen emergency. The USCIS will consider the number and
adding, in proper alpha/numeric district director may at any time revoke severity of the offenses of which the
sequence, a new ‘‘Form I–918’’ and a waiver previously authorized pursuant applicant has been convicted. In cases
‘‘Form I–918, Supplement A’’ to read as to this paragraph and notify the involving violent or dangerous crimes or
follows: nonimmigrant in writing to that effect. inadmissibility based on the security
* * * * * and related grounds in section 212(a)(3)
§ 103.7 Fees. (p) Alien in U–1 through U–5 of the Act, USCIS will only exercise
* * * * * classification. Individuals seeking U–1 favorable discretion in extraordinary
through U–5 nonimmigrant status may circumstances.
(b) * * * avail themselves of the provisions of (3) There is no appeal of a decision to
(1) * * * paragraph (g) of this section, except that deny a waiver. However, nothing in this
Form I–918. For filing a petition to the authority to waive documentary paragraph is intended to prevent an
classify an alien as a nonimmigrant requirements resides with the director applicant from re-filing a request for a
under section 101(a)(15)(U)(i) of the Act, of the USCIS office having jurisdiction waiver of ground of inadmissibility in
8 U.S.C. 1101(a)(15)(U)(i)—$270. For over the adjudication of Form I–918, appropriate cases.
filing a petition to classify an alien as a ‘‘Petition for U Nonimmigrant Status.’’ (c) Revocation. The Secretary of
■ 5. Section 212.17 is added, to read as Homeland Security, at any time, may
nonimmigrant under section
follows: revoke a waiver previously authorized
101(a)(15)(U)(ii) of the Act, 8 U.S.C.
under section 212(d) of the Act, 8 U.S.C.
1101(a)(15)(U)(ii), on Form I–918, § 212.17 Applications for the exercise of 118(d). Under no circumstances will the
Supplement A concurrently with Form discretion relating to U nonimmigrant alien or any party acting on his or her
I–918—$120 per family member, up to status.
behalf have a right to appeal from a
a maximum amount of $540. (a) Filing the waiver application. An decision to revoke a waiver.
Form I–918, Supplement A. For filing alien applying for a waiver of
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a petition to classify an alien as a inadmissibility under section PART 214—NONIMMIGRANT CLASSES


nonimmigrant under section 212(d)(3)(B) or (d)(14) of the Act
(waivers of inadmissibility), 8 U.S.C. ■ 6. The authority citation for part 214
101(a)(15)(U)(ii) separately from Form I– is revised to read as follows:
1182(d)(3)(B) or (d)(14), in connection
918—$120.
with a petition for U nonimmigrant Authority: 8 U.S.C. 1101, 1102, 1103, 1182,
* * * * * status being filed pursuant to 8 CFR 1184, 1186a, 1187, 1221, 1281, 1282, 1301–

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53036 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

1305 and 1372; section 643, Pub. L. 104–208, (3) Certifying official means: murder; felonious assault; witness
110 Stat. 3009–708; Pub. L. 106–386, 114 (i) The head of the certifying agency, tampering; obstruction of justice;
Stat. 1477–1480; section 141 of the Compacts or any person(s) in a supervisory role perjury; or attempt, conspiracy, or
of Free Association with the Federated States who has been specifically designated by solicitation to commit any of the above
of Micronesia and the Republic of the
the head of the certifying agency to mentioned crimes. The term ‘‘any
Marshall Islands, and with the Government
of Palau, 48 U.S.C. 1901 note, and 1931 note, issue U nonimmigrant status similar activity’’ refers to criminal
respectively; 8 CFR part 2. certifications on behalf of that agency; offenses in which the nature and
or elements of the offenses are
■ 7. Section 214.1 is amended by: (ii) A Federal, State, or local judge. substantially similar to the statutorily
■ a. Adding a new paragraph (a)(1)(ix); (4) Indian Country is defined as: enumerated list of criminal activities.
and by (i) All land within the limits of any (10) Qualifying family member means,
■ b. Adding classification designations Indian reservation under the in the case of an alien victim 21 years
in proper numeric/alphabetical jurisdiction of the United States of age or older who is eligible for U
sequence in the table in paragraph Government, notwithstanding the nonimmigrant status as described in
(a)(2). issuance of any patent, and including section 101(a)(15)(U) of the Act, 8 U.S.C.
The additions read as follows: rights-of-way running through the 1101(a)(15)(U), the spouse or child(ren)
reservation; of such alien; and, in the case of an alien
§ 214.1 Requirements for admission,
extension, and maintenance of status.
(ii) All dependent Indian victim under the age of 21 who is
communities within the borders of the eligible for U nonimmigrant status as
(a) * * * United States whether within the
(1) * * * described in section 101(a)(15)(U) of the
original or subsequently acquired Act, qualifying family member means
(ix) Section 101(a)(15)(U)(ii) is
territory thereof, and whether within or the spouse, child(ren), parents, or
divided into (U)(ii), (U)(iii), (U)(iv), and
without the limits of a state; and unmarried siblings under the age of 18
(U)(v) for the spouse, child, parent, and
(iii) All Indian allotments, the Indian of such an alien.
siblings, respectively, of a
titles to which have not been (11) Territories and Possessions of the
nonimmigrant classified under section
extinguished, including rights-of-way United States means American Samoa,
101(a)(15)(U)(i); and
running through such allotments. Swains Island, Bajo Nuevo (the Petrel
(2) * * *
(5) Investigation or prosecution refers Islands), Baker Island, Howland Island,
Section Designation
to the detection or investigation of a Jarvis Island, Johnston Atoll, Kingman
qualifying crime or criminal activity, as Reef, Midway Atoll, Navassa Island,
101(a)(15)(U)(i) .......... U–1. well as to the prosecution, conviction, Northern Mariana Islands, Palmyra
101(a)(15)(U)(ii) ......... U–2, U–3, U–4, U–5. or sentencing of the perpetrator of the Atoll, Serranilla Bank, and Wake Atoll.
qualifying crime or criminal activity. (12) U nonimmigrant status
* * * * * (6) Military Installation means any certification means Form I–918,
■ 8. A new § 214.14 is added to read as facility, base, camp, post, encampment, Supplement B, ‘‘U Nonimmigrant Status
follows: station, yard, center, port, aircraft, Certification,’’ which confirms that the
vehicle, or vessel under the jurisdiction petitioner has been helpful, is being
§ 214.14 Alien victims of certain qualifying of the Department of Defense, including helpful, or is likely to be helpful in the
criminal activity. any leased facility, or any other location investigation or prosecution of the
(a) Definitions. As used in this under military control. qualifying criminal activity of which he
section, the term: (7) Next friend means a person who or she is a victim.
(1) BIWPA means Battered Immigrant appears in a lawsuit to act for the (13) U interim relief refers to the
Women Protection Act of 2000 of the benefit of an alien under the age of 16 interim benefits that were provided by
Victims of Trafficking and Violence or incapacitated or incompetent, who USCIS to petitioners for U
Protection Act of 2000, div. B, Violence has suffered substantial physical or nonimmigrant status, who requested
Against Women Act of 2000, tit. V, Pub. mental abuse as a result of being a such benefits and who were deemed
L. 106–386, 114 Stat. 1464, (2000), victim of qualifying criminal activity. prima facie eligible for U nonimmigrant
amended by Violence Against Women The next friend is not a party to the status prior to the publication of the
and Department of Justice legal proceeding and is not appointed as implementing regulations.
Reauthorization Act of 2005, tit. VIII, a guardian. (14) Victim of qualifying criminal
Pub. L. 109–162, 119 Stat. 2960 (2006), (8) Physical or mental abuse means activity generally means an alien who
amended by Violence Against Women injury or harm to the victim’s physical has suffered direct and proximate harm
and Department of Justice person, or harm to or impairment of the as a result of the commission of
Reauthorization Act—Technical emotional or psychological soundness qualifying criminal activity.
Corrections, Pub. L. 109–271, 120 Stat. of the victim. (i) The alien spouse, children under
750 (2006). (9) Qualifying crime or qualifying 21 years of age and, if the direct victim
(2) Certifying agency means a Federal, criminal activity includes one or more is under 21 years of age, parents and
State, or local law enforcement agency, of the following or any similar activities unmarried siblings under 18 years of
prosecutor, judge, or other authority, in violation of Federal, State or local age, will be considered victims of
that has responsibility for the criminal law of the United States: Rape; qualifying criminal activity where the
investigation or prosecution of a torture; trafficking; incest; domestic direct victim is deceased due to murder
qualifying crime or criminal activity. violence; sexual assault; abusive sexual or manslaughter, or is incompetent or
This definition includes agencies that contact; prostitution; sexual incapacitated, and therefore unable to
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have criminal investigative jurisdiction exploitation; female genital mutilation; provide information concerning the
in their respective areas of expertise, being held hostage; peonage; criminal activity or be helpful in the
including, but not limited to, child involuntary servitude; slave trade; investigation or prosecution of the
protective services, the Equal kidnapping; abduction; unlawful criminal activity. For purposes of
Employment Opportunity Commission, criminal restraint; false imprisonment; determining eligibility under this
and the Department of Labor. blackmail; extortion; manslaughter; definition, USCIS will consider the age

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53037

of the victim at the time the qualifying leading a certifying official to determine proceedings under section 240 of the
criminal activity occurred. that the petitioner has, is, or is likely to Act, 8 U.S.C. 1229a, or in exclusion or
(ii) A petitioner may be considered a provide assistance to the investigation deportation proceedings initiated under
victim of witness tampering, obstruction or prosecution of the qualifying criminal former sections 236 or 242 of the Act,
of justice, or perjury, including any activity. In the event that the alien has 8 U.S.C. 1226 and 1252 (as in effect
attempt, solicitation, or conspiracy to not yet reached 16 years of age on the prior to April 1, 1997), and who would
commit one or more of those offenses, date on which an act constituting an like to apply for U nonimmigrant status
if: element of the qualifying criminal must file a Form I–918 directly with
(A) The petitioner has been directly activity first occurred, a parent, USCIS. U.S. Immigration and Customs
and proximately harmed by the guardian or next friend of the alien may Enforcement (ICE) counsel may agree, as
perpetrator of the witness tampering, possess the information regarding a a matter of discretion, to file, at the
obstruction of justice, or perjury; and qualifying crime. In addition, if the request of the alien petitioner, a joint
(B) There are reasonable grounds to alien is incapacitated or incompetent, a motion to terminate proceedings
conclude that the perpetrator committed parent, guardian, or next friend may without prejudice with the immigration
the witness tampering, obstruction of possess the information regarding the judge or Board of Immigration Appeals,
justice, or perjury offense, at least in qualifying crime; whichever is appropriate, while a
principal part, as a means: (3) The alien has been helpful, is petition for U nonimmigrant status is
(1) To avoid or frustrate efforts to being helpful, or is likely to be helpful being adjudicated by USCIS.
investigate, arrest, prosecute, or to a certifying agency in the (ii) Petitioners with final orders of
otherwise bring to justice the investigation or prosecution of the removal, deportation, or exclusion. An
perpetrator for other criminal activity; qualifying criminal activity upon which alien who is the subject of a final order
or his or her petition is based, and since of removal, deportation, or exclusion is
(2) To further the perpetrator’s abuse the initiation of cooperation, has not not precluded from filing a petition for
or exploitation of or undue control over refused or failed to provide information U–1 nonimmigrant status directly with
the petitioner through manipulation of and assistance reasonably requested. In USCIS. The filing of a petition for U–1
the legal system. the event that the alien has not yet nonimmigrant status has no effect on
(iii) A person who is culpable for the reached 16 years of age on the date on ICE’s authority to execute a final order,
qualifying criminal activity being which an act constituting an element of although the alien may file a request for
investigated or prosecuted is excluded the qualifying criminal activity first a stay of removal pursuant to 8 CFR
from being recognized as a victim of occurred, a parent, guardian or next 241.6(a) and 8 CFR 1241.6(a). If the
qualifying criminal activity. friend of the alien may provide the alien is in detention pending execution
(b) Eligibility. An alien is eligible for required assistance. In addition, if the of the final order, the time during which
U–1 nonimmigrant status if he or she petitioner is incapacitated or a stay is in effect will extend the period
demonstrates all of the following in incompetent and, therefore, unable to be of detention (under the standards of 8
accordance with paragraph (c) of this helpful in the investigation or CFR 241.4) reasonably necessary to
section: prosecution of the qualifying criminal bring about the petitioner’s removal.
(1) The alien has suffered substantial activity, a parent, guardian, or next (2) Initial evidence. Form I–918 must
physical or mental abuse as a result of friend may provide the required include the following initial evidence:
having been a victim of qualifying assistance; and (i) Form I–918, Supplement B, ‘‘U
criminal activity. Whether abuse is (4) The qualifying criminal activity Nonimmigrant Status Certification,’’
substantial is based on a number of occurred in the United States (including signed by a certifying official within the
factors, including but not limited to: Indian country and U.S. military six months immediately preceding the
The nature of the injury inflicted or installations) or in the territories or filing of Form I–918. The certification
suffered; the severity of the perpetrator’s possessions of the United States, or must state that: the person signing the
conduct; the severity of the harm violated a U.S. federal law that provides certificate is the head of the certifying
suffered; the duration of the infliction of for extraterritorial jurisdiction to agency, or any person(s) in a
the harm; and the extent to which there prosecute the offense in a U.S. federal supervisory role who has been
is permanent or serious harm to the court. specifically designated by the head of
appearance, health, or physical or (c) Application procedures for U the certifying agency to issue U
mental soundness of the victim, nonimmigrant status—(1) Filing a nonimmigrant status certifications on
including aggravation of pre-existing petition. USCIS has sole jurisdiction behalf of that agency, or is a Federal,
conditions. No single factor is a over all petitions for U nonimmigrant State, or local judge; the agency is a
prerequisite to establish that the abuse status. An alien seeking U–1 Federal, State, or local law enforcement
suffered was substantial. Also, the nonimmigrant status must submit, by agency, or prosecutor, judge or other
existence of one or more of the factors mail, Form I–918, ‘‘Petition for U authority, that has responsibility for the
automatically does not create a Nonimmigrant Status,’’ applicable fees detection, investigation, prosecution,
presumption that the abuse suffered was (or request for a fee waiver as provided conviction, or sentencing of qualifying
substantial. A series of acts taken in 8 CFR 103.7(c)), and initial evidence criminal activity; the applicant has been
together may be considered to constitute to USCIS in accordance with this a victim of qualifying criminal activity
substantial physical or mental abuse paragraph and the instructions to Form that the certifying official’s agency is
even where no single act alone rises to I–918. A petitioner who received investigating or prosecuting; the
that level; interim relief is not required to submit petitioner possesses information
(2) The alien possesses credible and initial evidence with Form I–918 if he concerning the qualifying criminal
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reliable information establishing that he or she wishes to rely on the law activity of which he or she has been a
or she has knowledge of the details enforcement certification and other victim; the petitioner has been, is being,
concerning the qualifying criminal evidence that was submitted with the or is likely to be helpful to an
activity upon which his or her petition request for interim relief. investigation or prosecution of that
is based. The alien must possess specific (i) Petitioners in pending immigration qualifying criminal activity; and the
facts regarding the criminal activity proceedings. An alien who is in removal qualifying criminal activity violated

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53038 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

U.S. law, or occurred in the United shall conduct a de novo review of all USCIS will notify the alien of such
States, its territories, its possessions, evidence submitted in connection with approval on Form I–797, ‘‘Notice of
Indian country, or at military Form I–918 and may investigate any Action,’’ and will forward notice to the
installations abroad. aspect of the petition. Evidence Department of State for delivery to the
(ii) Any additional evidence that the previously submitted for this or other U.S. Embassy or Consulate having
petitioner wants USCIS to consider to immigration benefit or relief may be jurisdiction over the area in which the
establish that: the petitioner is a victim used by USCIS in evaluating the alien is located, or, for a visa exempt
of qualifying criminal activity; the eligibility of a petitioner for U–1 alien, to the appropriate port of entry.
petitioner has suffered substantial nonimmigrant status. However, USCIS (ii) Denial of Form I–918. USCIS will
physical or mental abuse as a result of will not be bound by its previous factual provide written notification to the
being a victim of qualifying criminal determinations. USCIS will determine, petitioner of the reasons for the denial.
activity; the petitioner (or, in the case of in its sole discretion, the evidentiary The petitioner may appeal a denial of
a child under the age of 16 or petitioner value of previously or concurrently Form I–918 to the Administrative
who is incompetent or incapacitated, a submitted evidence, including Form I– Appeals Office (AAO) in accordance
parent, guardian or next friend of the 918, Supplement B, ‘‘U Nonimmigrant with the provisions of 8 CFR 103.3. For
petitioner) possesses information Status Certification.’’ petitioners who appeal a denial of their
establishing that he or she has (5) Decision. After completing its de Form I–918 to the AAO, the denial will
knowledge of the details concerning the novo review of the petition and not be deemed administratively final
qualifying criminal activity of which he evidence, USCIS will issue a written until the AAO issues a decision
or she was a victim and upon which his decision approving or denying Form I– affirming the denial. Upon USCIS’ final
or her application is based; the 918 and notify the petitioner of this denial of a petition for a petitioner who
petitioner (or, in the case of a child decision. USCIS will include in a was in removal proceedings that were
under the age of 16 or petitioner who is decision approving Form I–918 a list of terminated pursuant to 8 CFR
incompetent or incapacitated, a parent, nongovernmental organizations to 214.14(c)(1)(i), DHS may file a new
guardian or next friend of the petitioner) which the petitioner can refer regarding Notice to Appear (see section 239 of the
has been helpful, is being helpful, or is his or her options while in the United Act, 8 U.S.C. 1229) to place the
likely to be helpful to a Federal, State, States and available resources. individual in proceedings again. For
or local law enforcement agency, (i) Approval of Form I–918, generally. petitioners who are subject to an order
prosecutor, or authority, or Federal or If USCIS determines that the petitioner of removal, deportation, or exclusion
State judge, investigating or prosecuting has met the requirements for U–1 and whose order has been stayed,
the criminal activity of which the nonimmigrant status, USCIS will USCIS’ denial of the petition will result
petitioner is a victim; or the criminal approve Form I–918. For a petitioner in the stay being lifted automatically as
activity is qualifying and occurred in who is within the United States, USCIS of the date the denial becomes
the United States (including Indian also will concurrently grant U–1 administratively final.
country and U.S. military installations) nonimmigrant status, subject to the (6) Petitioners granted U interim
or in the territories or possessions of the annual limitation as provided in relief. Petitioners who were granted U
United States, or violates a U.S. federal paragraph (d) of this section. For a interim relief as defined in paragraph
law that provides for extraterritorial petitioner who is subject to an order of (a)(13) of this section and whose Form
jurisdiction to prosecute the offense in exclusion, deportation, or removal I–918 is approved will be accorded U–
a U.S. federal court; issued by the Secretary, the order will 1 nonimmigrant status as of the date
(iii) A signed statement by the be deemed canceled by operation of law that a request for U interim relief was
petitioner describing the facts of the as of the date of USCIS’ approval of initially approved.
victimization. The statement also may Form I–918. A petitioner who is subject (7) Employment authorization. An
include information supporting any of to an order of exclusion, deportation, or alien granted U–1 nonimmigrant status
the eligibility requirements set out in removal issued by an immigration judge is employment authorized incident to
paragraph (b) of this section. When the or the Board may seek cancellation of status. USCIS automatically will issue
petitioner is under the age of 16, such order by filing, with the an initial Employment Authorization
incapacitated, or incompetent, a parent, immigration judge or the Board, a Document (EAD) to such aliens who are
guardian, or next friend may submit a motion to reopen and terminate removal in the United States. For principal
statement on behalf of the petitioner; proceedings. ICE counsel may agree, as aliens who applied from outside the
and a matter of discretion, to join such a United States, the initial EAD will not
(iv) If the petitioner is inadmissible, motion to overcome any applicable time be issued until the petitioner has been
Form I–192, ‘‘Application for Advance and numerical limitations of 8 CFR admitted to the United States in U
Permission to Enter as Non-Immigrant,’’ 1003.2 and 1003.23. nonimmigrant status. After admission,
in accordance with 8 CFR 212.17. (A) Notice of Approval of Form I–918 the alien may receive an initial EAD,
(3) Biometric capture. All petitioners for U–1 petitioners within the United upon request and submission of a copy
for U–1 nonimmigrant status must States. After USCIS approves Form I– of his or her Form I–94, ‘‘Arrival-
submit to biometric capture and pay a 918 for an alien who filed his or her Departure Record,’’ to the USCIS office
biometric capture fee. USCIS will notify petition from within the United States, having jurisdiction over the
the petitioner of the proper time and USCIS will notify the alien of such adjudication of petitions for U
location to appear for biometric capture approval on Form I–797, ‘‘Notice of nonimmigrant status. No additional fee
after the petitioner files Form I–918. Action,’’ and include Form I–94, is required. An alien granted U–1
(4) Evidentiary standards and burden ‘‘Arrival-Departure Record,’’ indicating nonimmigrant status seeking to renew
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of proof. The burden shall be on the U–1 nonimmigrant status. his or her expiring EAD or replace an
petitioner to demonstrate eligibility for (B) Notice of Approval of Form I–918 EAD that was lost, stolen, or destroyed,
U–1 nonimmigrant status. The for U–1 petitioners outside the United must file Form I–765 in accordance with
petitioner may submit any credible States. After USCIS approves Form I– the instructions to the form.
evidence relating to his or her Form I– 918 for an alien who filed his or her (d) Annual cap on U–1 nonimmigrant
918 for consideration by USCIS. USCIS petition from outside the United States, status—(1) General. In accordance with

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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations 53039

section 214(p)(2) of the Act, 8 U.S.C. for a legitimate law enforcement accompanying or following to join such
1184(p)(2), the total number of aliens purpose; principal alien. A qualifying family
who may be issued a U–1 nonimmigrant (iii) In conjunction with judicial member who committed the qualifying
visa or granted U–1 nonimmigrant review of a determination in a manner criminal activity in a family violence or
status may not exceed 10,000 in any that protects the confidentiality of such trafficking context which established
fiscal year. information; the principal alien’s eligibility for U
(2) Waiting list. All eligible petitioners (iv) After adult petitioners for U nonimmigrant status shall not be
who, due solely to the cap, are not nonimmigrant status or U nonimmigrant granted U–2, U–3, U–4, or U–5
granted U–1 nonimmigrant status must status holders have provided written nonimmigrant status. To be eligible for
be placed on a waiting list and receive consent to waive the restrictions U–2, U–3, U–4, or U–5 nonimmigrant
written notice of such placement. prohibiting the release of information; status, it must be demonstrated that:
Priority on the waiting list will be (v) To Federal, State, and local public (i) The alien for whom U–2, U–3, U–
determined by the date the petition was and private agencies providing benefits, 4, or U–5 status is being sought is a
filed with the oldest petitions receiving to be used solely in making qualifying family member, as defined in
the highest priority. In the next fiscal determinations of eligibility for benefits paragraph (a)(10) of this section; and
year, USCIS will issue a number to each pursuant to 8 U.S.C. 1641(c); (ii) The qualifying family member is
petition on the waiting list, in the order (vi) After a petition for U admissible to the United States.
of highest priority, providing the nonimmigrant status has been denied in (2) Filing procedures. A petitioner for
petitioner remains admissible and a final decision; U–1 nonimmigrant status may apply for
eligible for U nonimmigrant status. After (vii) To the chairmen and ranking derivative U nonimmigrant status on
members of the Committee on the behalf of qualifying family members by
U–1 nonimmigrant status has been
Judiciary of the Senate or the Committee submitting a Form I–918, Supplement
issued to qualifying petitioners on the
on the Judiciary of the House of A, ‘‘Petition for Qualifying Family
waiting list, any remaining U–1
Representatives, for the exercise of Member of U–1 Recipient,’’ for each
nonimmigrant numbers for that fiscal
congressional oversight authority, family member either at the same time
year will be issued to new qualifying
provided the disclosure relates to the petition for U–1 nonimmigrant
petitioners in the order that the
information about a closed case and is status is filed, or at a later date. An alien
petitions were properly filed. USCIS
made in a manner that protects the who has been granted U–1
will grant deferred action or parole to
confidentiality of the information and nonimmigrant status may apply for
U–1 petitioners and qualifying family
omits personally identifying derivative U nonimmigrant status on
members while the U–1 petitioners are behalf of qualifying family members by
on the waiting list. USCIS, in its information (including locational
information about individuals); submitting Form I–918, Supplement A
discretion, may authorize employment for each family member. All Forms I–
(viii) With prior written consent from
for such petitioners and qualifying 918, Supplement A must be
the petitioner or derivative family
family members. accompanied by initial evidence and the
members, to nonprofit,
(3) Unlawful presence. During the nongovernmental victims’ service required fees specified in the
time a petitioner for U nonimmigrant providers for the sole purpose of instructions to the form. Forms I–918,
status who was granted deferred action assisting the victim in obtaining victim Supplement A that are not filed at the
or parole is on the waiting list, no services from programs with expertise same time as Form I–918 but are filed
accrual of unlawful presence under working with immigrant victims; or at a later date must be accompanied by
section 212(a)(9)(B) of the INA, 8 U.S.C. (ix) To federal prosecutors to comply a copy of the Form I–918 that was filed
1182(a)(9)(B), will result. However, a with constitutional obligations to by the principal petitioner or a copy of
petitioner may be removed from the provide statements by witnesses and his or her Form I–94 demonstrating
waiting list, and the deferred action or certain other documents to defendants proof of U–1 nonimmigrant status, as
parole may be terminated at the in pending federal criminal applicable.
discretion of USCIS. proceedings. (i) Qualifying family members in
(e) Restrictions on use and disclosure (2) Agencies receiving information pending immigration proceedings. The
of information relating to petitioners for under this section, whether principal alien of a qualifying family
U nonimmigrant classification—(1) governmental or non-governmental, are member who is in removal proceedings
General. The use or disclosure (other bound by the confidentiality provisions under section 240 of the Act, 8 U.S.C.
than to a sworn officer or employee of and other restrictions set out in 8 U.S.C. 1229a, or in exclusion or deportation
DHS, the Department of Justice, the 1367. proceedings initiated under former
Department of State, or a bureau or (3) Officials of the Department of sections 236 or 242 of the Act, 8 U.S.C.
agency of any of those departments, for Homeland Security are prohibited from 1226 and 1252 (as in effect prior to
legitimate department, bureau, or making adverse determinations of April 1, 1997), and who is seeking U
agency purposes) of any information admissibility or deportability based on nonimmigrant status, must file a Form
relating to the beneficiary of a pending information obtained solely from the I–918, Supplement A directly with
or approved petition for U perpetrator of substantial physical or USCIS. ICE counsel may agree to file, at
nonimmigrant status is prohibited mental abuse and the criminal activity. the request of the qualifying family
unless the disclosure is made: (f) Admission of qualifying family member, a joint motion to terminate
(i) By the Secretary of Homeland members—(1) Eligibility. An alien who proceedings without prejudice with the
Security, at his discretion, in the same has petitioned for or has been granted immigration judge or Board of
manner and circumstances as census U–1 nonimmigrant status (i.e., principal Immigration Appeals, whichever is
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information may be disclosed by the alien) may petition for the admission of appropriate, while the petition for U
Secretary of Commerce under 13 U.S.C. a qualifying family member in a U–2 nonimmigrant status is being
8; (spouse), U–3 (child), U–4 (parent of a adjudicated by USCIS.
(ii) By the Secretary of Homeland U–1 alien who is a child under 21 years (ii) Qualifying family members with
Security, at his discretion, to law of age), or U–5 (unmarried sibling under final orders of removal, deportation, or
enforcement officials to be used solely the age of 18) derivative status, if exclusion. An alien who is the subject

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of a final order of removal, deportation, in a decision approving Form I–918 a appeal the denial of Form I–918,
or exclusion is not precluded from filing list of nongovernmental organizations to Supplement A to the Administrative
a petition for U–2, U–3, U–4, or U–5 which the qualifying family member can Appeals Office in accordance with the
nonimmigrant status directly with refer regarding his or her options while provisions of 8 CFR 103.3. Upon USCIS’
USCIS. The filing of a petition for U–2, in the United States and available final denial of Form I–918, Supplement
U–3, U–4, or U–5 nonimmigrant status resources. For a qualifying family A for a qualifying family member who
has no effect on ICE’s authority to member who is subject to an order of was in removal proceedings that were
execute a final order, although the alien exclusion, deportation, or removal terminated pursuant to 8 CFR
may file a request for a stay of removal issued by the Secretary, the order will 214.14(f)(2)(i), DHS may file a new
pursuant to 8 CFR 241.6(a) and 8 CFR be deemed canceled by operation of law Notice to Appear (see section 239 of the
1241.6(a). If the alien is in detention as of the date of USCIS’ approval of INA, 8 U.S.C. 1229) to place the
pending execution of the final order, the Form I–918, Supplement A. A individual in proceedings again. For
time during which a stay is in effect will qualifying family member who is qualifying family members who are
extend the period of detention (under subject to an order of exclusion, subject to an order of removal,
the standards of 8 CFR 241.4) deportation, or removal issued by an deportation, or exclusion and whose
reasonably necessary to bring about the immigration judge or the Board may order has been stayed, USCIS’ denial of
alien’s removal. seek cancellation of such order by filing, the petition will result in the stay being
(3) Initial evidence. Form I–918, with the immigration judge or the lifted automatically as of the date the
Supplement A, must include the Board, a motion to reopen and terminate denial becomes administratively final.
following initial evidence: removal proceedings. ICE counsel may (7) Employment authorization. An
(i) Evidence demonstrating the agree, as a matter of discretion, to join alien granted U–2, U–3, U–4, or U–5
relationship of a qualifying family such a motion to overcome any nonimmigrant status is employment
member, as provided in paragraph (f)(4) applicable time and numerical authorized incident to status. To obtain
of this section; limitations of 8 CFR 1003.2 and an Employment Authorization
(ii) If the qualifying family member is 1003.23. Document (EAD), such alien must file
inadmissible, Form I–192, ‘‘Application (i) Approvals for qualifying family Form I–765, ‘‘Application for
for Advance Permission to Enter as a members within the United States. Employment Authorization,’’ with the
Non-Immigrant,’’ in accordance with 8 When USCIS approves a Form I–918, appropriate fee or a request for a fee
CFR 212.17. Supplement A for a qualifying family waiver, in accordance with the
(4) Relationship. Except as set forth in member who is within the United instructions to the form. For qualifying
paragraphs (f)(4)(i) and (ii) of this States, it will concurrently grant that family members within the United
section, the relationship between the U– alien U–2, U–3, U–4, or U–5 States, the Form I–765 may be filed
1 principal alien and the qualifying nonimmigrant status. USCIS will notify concurrently with Form I–918,
family member must exist at the time the principal of such approval on Form Supplement A, or at any time thereafter.
Form I–918 was filed, and the I–797, ‘‘Notice of Action,’’ with Form I– For qualifying family members who are
relationship must continue to exist at 94, ‘‘Arrival-Departure Record,’’ outside the United States, Form I–765
the time Form I–918, Supplement A is indicating U–2, U–3, U–4, or U–5 only may be filed after admission to the
adjudicated, and at the time of the nonimmigrant status. Aliens who were United States in U nonimmigrant status.
qualifying family member’s subsequent previously granted U interim relief as (g) Duration of U nonimmigrant
admission to the United States. defined in paragraph (a)(13) of this status—(1) In general. U nonimmigrant
(i) If the U–1 principal alien proves section will be accorded U status may be approved for a period not
that he or she has become the parent of nonimmigrant status as of the date that to exceed 4 years in the aggregate. A
a child after Form I–918 was filed, the the request for U interim relief was qualifying family member granted U–2,
child shall be eligible to accompany or approved. Aliens who are granted U–2, U–3, U–4, and U–5 nonimmigrant status
follow to join the U–1 principal alien. U–3, U–4, or U–5 nonimmigrant status will be approved for an initial period
(ii) If the principal alien was under 21 are not subject to an annual numerical that does not exceed the expiration date
years of age at the time he or she filed limit. USCIS may not approve Form I– of the initial period approved for the
Form I–918, and filed Form I–918, 918, Supplement A unless it has principal alien.
Supplement A for an unmarried sibling approved the principal alien’s Form I– (2) Extension of status. (i) Where a U
under the age of 18, USCIS will 918. nonimmigrant’s approved period of stay
continue to consider such sibling as a (ii) Approvals for qualifying family on Form I–94 is less than 4 years, he or
qualifying family member for purposes members outside the United States. she may file Form I–539, ‘‘Application
of U nonimmigrant status even if the When USCIS approves Form I–918, to Extend/Change Nonimmigrant
principal alien is no longer under 21 Supplement A for a qualifying family Status,’’ to request an extension of U
years of age at the time of adjudication, member who is outside the United nonimmigrant status for an aggregate
and even if the sibling is no longer States, USCIS will notify the principal period not to exceed 4 years. USCIS may
under 18 years of age at the time of alien of such approval on Form I–797. approve an extension of status for a
adjudication. USCIS will forward the approved Form qualifying family member beyond the
(5) Biometric capture and evidentiary I–918, Supplement A to the Department date when the U–1 nonimmigrant’s
standards. The provisions for biometric of State for delivery to the U.S. Embassy status expires when the qualifying
capture and evidentiary standards in or Consulate having jurisdiction over family member is unable to enter the
paragraphs (c)(3) and (c)(4) of this the area in which the qualifying family United States timely due to delays in
section also are applicable to petitions member is located, or, for a visa exempt consular processing, and an extension of
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for qualifying family members. alien, to the appropriate port of entry. status is necessary to ensure that the
(6) Decision. USCIS will issue a (iii) Denial of the Form I–918, qualifying family member is able to
written decision approving or denying Supplement A. In accordance with 8 attain at least 3 years in nonimmigrant
Form I–918, Supplement A and send CFR 103.3(a)(1), USCIS will provide status for purposes of adjusting status
notice of this decision to the U–1 written notification of the reasons for under section 245(m) of the Act, 8
principal petitioner. USCIS will include the denial. The principal alien may U.S.C. 1255.

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(ii) Extensions of U nonimmigrant appealed to the Administrative Appeals forth respectively in § 214.15(f) or
status beyond the 4-year period are Office in accordance with 8 CFR 103.3 § 214.14 of this chapter.
available upon attestation by the within 30 days after the date of the * * * * *
certifying official that the alien’s notice of revocation. Automatic ■ 11. Section 248.2 is amended by:
presence in the United States continues revocations may not be appealed. ■ a. Revising the introductory text;
to be necessary to assist in the (4) Effects of revocation of approval.
■ b. Redesignating the revised
investigation or prosecution of Revocation of a principal alien’s
introductory text through paragraph (f)
qualifying criminal activity. In order to approved Form I–918 will result in
as paragraphs (a) introductory text
obtain an extension of U nonimmigrant termination of status for the principal
through (a)(6); and by
status based upon such an attestation, alien, as well as in the denial of any
■ c. Adding a new paragraph (b) to read
the alien must file Form I–539 and a pending Form I–918, Supplement A
as follows:
newly executed Form I–918, filed for qualifying family members
Supplement B in accordance with the seeking U–2, U–3, U–4, or U–5 § 248.2 Ineligibile Classes.
instructions to Form I–539. nonimmigrant status. Revocation of a (a) Except as described in paragraph
(h) Revocation of approved petitions qualifying family member’s approved (b) of this section, the following
for U nonimmigrant status—(1) Form I–918, Supplement A will result categories of aliens are not eligible to
Automatic revocation. An approved in termination of status for the change their nonimmigrant status under
petition for U–1 nonimmigrant status qualifying family member. Revocation section 248 of the Act, 8 U.S.C. 1258:
will be revoked automatically if, of an approved Form I–918 or Form I–
918, Supplement A also revokes any * * * * *
pursuant to 8 CFR 214.14(d)(1), the (b) The prohibition against a change
beneficiary of the approved petition waiver of inadmissibility granted in
conjunction with such petition. of nonimmigrant status for the
notifies the USCIS office that approved categories of aliens described in
the petition that he or she will not apply (i) Removal proceedings. Nothing in
this section prohibits USCIS from paragraphs (a)(1) through (6) of this
for admission to the United States and, section is inapplicable to aliens
therefore, the petition will not be used. instituting removal proceedings under
section 240 of the Act, 8 U.S.C. 1229(a), applying for a change of nonimmigrant
(2) Revocation on notice. (i) USCIS
for conduct committed after admission, status to that of a nonimmigrant under
may revoke an approved petition for U
for conduct or a condition that was not section 101(a)(15)(U) of the Act, 8 U.S.C.
nonimmigrant status following a notice
disclosed to USCIS prior to the granting 1101(a)(15)(U).
of intent to revoke. USCIS may revoke
an approved petition for U of U nonimmigrant status, for
PART 274a—CONTROL OF
nonimmigrant status based on one or misrepresentations of material facts in
EMPLOYMENT OF ALIENS
more of the following reasons: Form I–918 or Form I–918, Supplement
(A) The certifying official withdraws A and supporting documentation, or ■ 12. The authority citation for section
the U nonimmigrant status certification after revocation of U nonimmigrant 274a continues to read as follows:
referred to in 8 CFR 214.14(c)(2)(i) or status.
Authority: 8 U.S.C. 1101, 1103, 1324a; 8
disavows the contents in writing; CFR part 2.
(B) Approval of the petition was in PART 248—CHANGE OF
error; NONIMMIGRANT CLASSIFICATION ■ 13. Section 274a.12 is amended by:
(C) Where there was fraud in the ■ a. Revising paragraph (a) introductory
■ 9. The authority citation for section
petition; text;
(D) In the case of a U–2, U–3, U–4, or 248 continues to read as follows:
■ b. Amending paragraph (a)(14) by
U–5 nonimmigrant, the relationship to Authority: 8 U.S.C. 1101, 1103, 1184, 1258; removing the word ‘‘or’’ at the end of
the principal petitioner has terminated; 8 CFR part 2.
the paragraph;
or ■ 10. Section 248.1 is amended by ■ c. Removing the period at the end of
(E) In the case of a U–2, U–3, U–4, or revising paragraph (a) to read as follows: paragraph (a)(16) and inserting a
U–5 nonimmigrant, the principal U–1’s semicolon in its place;
nonimmigrant status is revoked. § 248.1 Eligibility.
■ d. Adding and reserving paragraphs
(ii) The notice of intent to revoke (a) General. Except for those classes (a)(17) and (18); and by
must be in writing and contain a enumerated in § 248.2, any alien ■ e. Adding new paragraphs (a)(19) and
statement of the grounds for the lawfully admitted to the United States (20).
revocation and the time period allowed as a nonimmigrant, including an alien The revision and additions read as
for the U nonimmigrant’s rebuttal. The who acquired such status pursuant to follows:
alien may submit evidence in rebuttal section 247 of the Act, 8 U.S.C. 1257,
within 30 days of the date of the notice. who is continuing to maintain his or her § 274a.12 Classes of aliens authorized to
USCIS shall consider all relevant nonimmigrant status, may apply to have accept employment.
evidence presented in deciding whether his or her nonimmigrant classification (a) Aliens authorized employment
to revoke the approved petition for U changed to any nonimmigrant incident to status. Pursuant to the
nonimmigrant status. The determination classification other than that of a spouse statutory or regulatory reference cited,
of what is relevant evidence and the or fianc(e), or the child of such alien, the following classes of aliens are
weight to be given to that evidence will under section 101(a)(15)(K) of the Act, authorized to be employed in the United
be within the sole discretion of USCIS. 8 U.S.C. 1101(a)(15)(K), or as an alien in States without restrictions as to location
If USCIS revokes approval of a petition transit under section 101(a)(15)(C) of the or type of employment as a condition of
and thereby terminates U nonimmigrant Act, 8 U.S.C. 1101(a)(15)(C). An alien their admission or subsequent change to
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status, USCIS will provide the alien defined by section 101(a)(15)(V), or one of the indicated classes. Any alien
with a written notice of revocation that 101(a)(15)(U) of the Act, 8 U.S.C. who is within a class of aliens described
explains the specific reasons for the 1101(a)(15)(V) or 8 U.S.C. in paragraphs (a)(3), (a)(4), (a)(6)–(a)(8),
revocation. 1101(a)(15)(U), may be accorded (a)(10)–(a)(15), or (a)(20) of this section,
(3) Appeal of a revocation of nonimmigrant status in the United and who seeks to be employed in the
approval. A revocation on notice may be States by following the procedures set United States, must apply to U.S.

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53042 Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / Rules and Regulations

Citizenship and Immigration Services CFR 214.14, for the period of time in 765) in order to obtain documentation
(USCIS) for a document evidencing such that status, as evidenced by an evidencing this fact.
employment authorization. USCIS may, employment authorization document * * * * *
in its discretion, determine the validity issued by USCIS to the alien.
period assigned to any document issued * * * * * PART 299—IMMIGRATION FORMS
evidencing an alien’s authorization to
work in the United States. ■ 14. Section 274a.13 is amended by ■ 15. The authority citation for part 299
* * * * * revising paragraph (a) introductory text continues to read as follows:
(17) [Reserved] to read as follows: Authority: 8 U.S.C. 1101 and note, 1103; 8
(18) [Reserved] CFR part 2.
§ 274a.13 Application for employment
(19) Any alien in U–1 nonimmigrant authorization. ■ 16. Section 299.1 is amended in the
status, pursuant to 8 CFR 214.14, for the table by adding the entries for Forms ‘‘I–
period of time in that status, as (a) General. Aliens authorized to be
918,’’ ‘‘I–918 Supplement A,’’ and ‘‘I–
evidenced by an employment employed under section 274a.12(a)(3), 918 Supplement B’’ in the proper alpha/
authorization document issued by (a)(4), (a)(6)–(8), (a)(10)–(15), and (a)(20) numeric sequence.
USCIS to the alien. must file an Application for
(20) Any alien in U–2, U–3, U–4, or Employment Authorization (Form I– § 299.1 Prescribed forms.
U–5 nonimmigrant status, pursuant to 8 * * * * *

Edition
Form No. Title
date

* * * * * * *
I–918 ................................................................................. 8/15/07 Petition for U Nonimmigrant Status.
I–918 Supplement A ......................................................... 8/15/07 Petition for Qualifying Family Member of U–1 Recipient.
I–918 Supplement B ......................................................... 8/15/07 U Nonimmigrant Status Certification.

* * * * * * *

■ 17. Section 299.5 is amended in the 918 Supplement B’’ in the proper alpha/ § 299.5 Display of control numbers.
table by adding the entries for Forms ‘‘I– numeric sequence. * * * * *
918,’’ ‘‘I–918 Supplement A,’’ and ‘‘I–

Currently assigned
Form No. Form title OMB control No.

* * * * * * *
I–918 .......................................................................... Petition for U Nonimmigrant Status ....................................................... 1615–0104
I–918 Supplement A .................................................. Petition for Qualifying Family Member of U–1 Recipient ...................... 1615–0104
I–918 Supplement B .................................................. U Nonimmigrant Status Certification ..................................................... 1615–0104

* * * * * * *

Dated: September 4, 2007.


Michael Chertoff,
Secretary.
[FR Doc. E7–17807 Filed 9–14–07; 8:45 am]
BILLING CODE 4410–10–P
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