Sunday, January 17, 2010

Ortega v. Holder: Declaration of nationality

Individuals can file an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. section 1503(a). In an action for a declaration of nationality pursuant to 8 U.S.C. section 1503(a), district court's grant of the government's motion to dismiss for lack of subject matter jurisdiction is reversed and remanded as the language of section 1503(a)(1), read within the context of section 1503(a) and also read in conjunction with related provisions of Title 8, makes it clear that Congress intended individuals to pursue one of two routes to establish claims for nationality.

No. 08-3642 (01/15/2010):

Ortega v. Holder (Ripple)
Oral Argument | Full Text

Labels: , ,

Wednesday, October 8, 2008

Citizenship, Acquisition and Derivation, Child Citizenship Act

Citizenship: Acquisition and Derivation.

(a) Introduction. (revision dated 07/18/2005) In addition to the naturalization process, the United States recognizes the U.S. citizenship of individuals gained through other means. A Certificate of Citizenship documents citizenship that is obtained other than through birth in the United States or naturalization under section 310 of the Act.

Form N-600 Application for Certificate of Citizenship is used to request the Certificate of Citizenship provided for in section 341 of the Act. Form N-643 was created after Congress provided for the naturalization of adopted children in 1986. The Child Citizenship Act of 2000 (CCA), P.L.106-395 , became effective on February 27, 2001 and led to revisions to the forms to apply for Certificates of Citizenship.

Application and petition forms, and documents issued to support an application or petition, such as Form I-130 Petition for Alien Relative, labor certifications, Form DS 2019, medical examinations, affidavits, formal consultations, letters of current employment and other statements, must be submitted in the original unless previously filed with USCIS. Official documents issued by the USCIS need not be submitted in the original unless required by USCIS. Unless otherwise required by the applicable regulation or form's instructions, a legible photocopy of any other supporting document may be submitted. (This paragraph added 07/18/2005.)

USCIS may, at any time, request submission of an original document for review. The request will state a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying application or benefit. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an origi nal document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document by submitting a properly completed and signed G-884 to the adjudicating USCIS office. (This paragraph added 07/18/2005.)

Please note that it is up to the applicant to establish eligibility for the Certificate of Citizenship. In general, issuance of the certificate provides evidence of U.S. Citizenship vested in the applicant. Denial of an application does not necessarily mean that the applicant is not a citizen. The evidence submitted in support of the application may not have been sufficient. Proper evidence may establish otherwise.

(b) Definition of Child for Naturalization and Citizenship . The definition of “child” for naturalization and citizenship is more restrictive than that used for immigration or adjustment of status. The definition for child as used in naturalization and citizenship (Title III) is found at section 101(c) of the Act. This definition does not include stepchildren. Adopted children are provided for when they are included specifically in any section of the INA that applies to citizenship. Before February 27, 2001, section 321of the Act governed citizenship for children born out of wedlock.

Legitimation is a concern when determining acquisition or derivation of citizenship. You must also be aware of the specific rules requiring the child’s legitimation under section 101(c) of the Act and determine the citizenship status of the father. If the natural father was a citizen at the time of the child’s birth, then section 309 and section 301 of the Act may apply, depending on the child’s date of birth.

Generally, the child must be legitimated while under 16 years of age, unless another section of the Act refers to a specific age. For example, under section 309 of the Act, the child needs to be legitimated by his or her father before age 18.

(c) “Acquisition” of U.S. Citizenship . Prior to the effective date of the CCA (February 27, 2001), “acquisition” referred to citizenship acquired at birth. The relevant statutory provisions dealing with acquisition are section 301 , section 303 , section 309 , and section 324 of the Act. You will find Naturalization Charts 1 and 2 (at Appendix 71-1 and Appendix 71-2 of this field manual) helpful in adjudicating acquisition claims.

Sections 301 and 309 of the Act provide for citizenship at birth.

Section 320 of the Act, as amended by the Child Citizenship Act, provides that the child “acquires” citizenship when certain conditions are met. Section 320 will be discussed under the “derivation” of citizenship, as it more closely resembles derivation statutes.

Section 324 of the Act provides for reacquisition of citizenship under certain conditions and was amended in 1994 to provide for the reacquisition of citizenship by certain section 301 citizens.

(1) Sections 301 and 309 of the Act . Form N-600 is used to apply for a certificate of citizenship when citizenship is acquired at birth under section 301 and section 309 of the Act. When adjudicating applications under these sections, the Act and conditions that exist at the time of birth of the applicant govern. Because these sections have been modified extensively over the past century, officers adjudicating these applications must be familiar with the Naturalization charts, with the issues that are covered in the Interpretations and changes in terminology through public laws. For example, P. L. 104-51 changed the term “illegitimate” to “out of wedlock” in section 101(b)(1)(D) of the Act.

Children Born in Wedlock. The provisions of section 301 of the Act have governed the acquisition of citizenship at birth by children born in wedlock since 1952. Prior laws and statutes are extensively covered in the Interpretations. Most issues that have arisen pertain to cases where only one parent is a U.S. citizen and the other is an alien. Keep in mind the definition of child and that stepchildren are not eligible for citizenship through this process.
Children Born Out of Wedlock. Prior to the Act of October 1, 1978, children born out of wedlock acquired citizenship through the mother if the mother had resided in the U.S. for one year. To acquire citizenship through his or her father, a child born out of wedlock needed to be legitimated or to meet other requirements depending upon when the child was born and when the child turned 16, 18 or 21. It should be noted that section 309 of the Act provides that section 301 of the Act applies to a child born out of wedlock when citizenship is claimed through the father. Therefore in adjudicating an application under section 309, it is not enough to establish that the father meets the requirements stated in section 309(a) or section 309(b) of the Act. Once it is established that the father and child qualify under section 309(a) or 309(b), the father must then establish that he had the required physical presence and residence under section 301(g) of the Act at the time of the child’s birth.

The general requirements for “Acquisition” are:

• Citizenship: The parent must be a citizen of the United States at the time of the child’s birth.
•Residence and Physical Presence: The Act has consistently required residence and physical presence in the United States or outlying possessions prior to the birth of the child. Officers should be aware that the definition of outlying possession has not been constant. For example, the Philippines were considered an outlying possession from 1899 to July 4, 1946. See section 101(a)(29) of the Act. Currently, the Act defines outlying possession as American Samoa and Swains Island.

Officers should also review section 301(g) of the Act for the conditions under which time spent outside the U.S. as a member of the military or working for certain U.S. government or international organizations may qualify as residence and physical presence in the U.S.

• Certificate: If approved an “AA” or “AB” certificate is issued. The date of citizenship is the birth date of the applicant.
• Retention Requirements: Until the Act of October 1, 1978 U.S. citizens who had acquired citizenship through birth outside the U.S. to one U.S. citizen parent had to meet residence and physical presence requirements in order to retain U.S. citizenship. Although the Act eliminated retention requirements for those born after 1952, it may be possible that a person born in 1952 and subject to the provisions of the 1940 Act would have failed to retain citizenship. For those born before 1952, consult Interpretation 301.1(b)(6) for a com plete discussion of the retention requirements.

(2) Section 324 of the Act: Resumption of Citizenship . The Act of October 24, 1994, Pub. L. 103-416, amended section 324 of the Act effective April 24, 1995 to provide that an alien who was formerly a citizen under section 301 or a preceding statute, but had failed to meet the retention requirements and had lost citizenship, could regain citizenship by taking the oath of allegiance. Section 324 does not change the period of time during which the person was considered an alien. Children born to such a person during the time they were not a citizen are considered to be born to an alien parent. Upon approval of an application under Section 324(d) the effective dat e will be the date of oath. The N-600 should be noted with the period of time that the applicant was not to be considered a citizen.

In preparing the Certificate of Citizenship (“AA” or “AB”) for such an applicant the following shall be noted on the Certificate:

• The effective date of citizenship is the date of oath. The date of citizenship must be marked with an asterisk.

• The reverse side of the certificate shall be endorsed in clear bold type : “(applicant’s name), a citizen of the United States by birth, from date of birth (DOB), to the present, excluding the periods of noncitizenship from to .”

(d) “Derivation” of U.S. Citizenship . Prior to the enactment of the CCA on February 27, 2001, “derivation” applied to citizenship that is obtained through an action after birth, such as naturalization of a parent. Derivation statutes are section 320 and section 321 of the Act in effect prior to Feb 27, 2001(see Appendix 71-6). You will find Naturalization Chart 3 (at Appendix 71-3) helpful in adjudicating derivation claims.

Because of changes in the Act, officers adjudicating these applications must have available to them prior sections 320, 321, and 322 of the Act. Applications for Certificates of Citizenship may deal with events that occurred prior to the current law, and officers must be aware of the prior standards for acquisition or derivation. The Interpretations will most often provide guidance on such issues as residence and physical presence. It should be noted that the Interpretations section 320 also covered prior s ection 321 and should be referred to when needed in cases involving derivation prior to the CCA.

(1) Child Citizenship Act, Pub. L. 106-395, Revised Section 320 of the Act . The Child Citizenship Act (CCA), effective February 27, 2001, amended section 320 of the Act and removed section 321. Although the CCA uses the term “acquires,” it is sufficiently similar to sections 320 and 321 in effect before February 27, 2001 to be considered a derivation statute. Officers adjudicating applications filed after February 27, 2001 should review the regulations at 8 CFR 320 which were published after the implementation of the CCA. The revised section 320 became the only method for children in the U.S. under the age of 18 to acquire citizenship. See also Appendix 71-7.

The CCA applies to adopted children and certain foreign-born natural children. A child adopted by a U.S. citizen parent is eligible for the CCA if the child satisfies the requirements applicable to adopted children under section 101(b) of the Act, including children described in section 101(b)(1)(E) and section 101(b)(1)(F) of the Act.

The CCA also applies to children who meet the requirements of section 101(c) of the Act. This includes unmarried children born in wedlock and legitimated children. An alien child who was born out of wedlock and has not been legitimated is eligible for derivative citizenship when the mother of such a child becomes a naturalized citizen under section 320 and 322 of the Act. Section 321 , in effect until February 26, 2001, had a specific reference to children born out of wedlock who were not legitimated.

A child of a naturalizing parent is also covered by the CCA provided that the child meets the definition of section 101(c) or section 101(b)(1)(E) or (F) of the Act. The CCA only requires one U.S. citizen parent to confer automatic citizenship. The naturalization of a single alien parent, regardless of his or her marital status or the immigration status of the other parent, is sufficient for a child to be eligible for citizenship under CCA.

The CCA applies to children residing in the U.S. pursuant to a lawful admission for permanent residence. Children who had previously been granted lawful permanent residence but were outside the U.S. temporarily on February 27, 2001 became citizens upon their return to the U.S.

For children who acquired citizenship on the date the CCA went into effect, the Certificate of Citizenship reflects February 27, 2001 as the date of acquisition. Children whose date of citizenship is February 27, 2001 are those who were still under age 18 and who met all the other requirements of section 320 of the Act (i.e., lawful permanent residence, living with and in the legal and physical custody of the U.S. citizen parent) on February 27, 2001.

After February 27, 2001, the date reflected on an individual’s certificate of citizenship will be the date when the last requirement needed to acquire citizenship automatically under section 320 of the Act is met. This date can be either:

• the date on which an alien parent of a qualifying child naturalizes, or
• the date on which a qualifying child is lawfully admitted for permanent residence, or
• if adopted, the date on which a qualifying child, who has been lawfully admitted as a permanent resident, has been finally adopted by a U.S. citizen or had such an adoption recognized by the state where the child resides.

Upon approval of the application the applicant is issued an “A” certificate.

(2) Derivation prior to the enactment of the CCA (before February 26, 2001) . Until the effective date of the CCA (February 27, 2001), derivation was dependent upon the naturalization of a parent. Prior to February 27, 2001, section 320 of the Act applied to a child who was born to a U.S. Citizen parent and an alien parent, while section 321 of the Act applied to a child born in wedlock to two alien parents and a child born out of wedlock to an alien mother (See old sections 320 and 321 in Appendix 71-6 of this field manual). Over the years, the citations concerning adopted childre n changed. Be sure to review the dates of adoption and the law in effect at the time. See Interpretations 320.1(d)(1), Interpretations 320.1(d)(1)(2) and Interpretations 320.1(d)(1)(3).

• Requirements: The basic requirements for both sections were the naturalization of an alien parent or parents, as applicable, the lawful admission for permanent residence of the alien child, and the satisfaction of these and any other statutory requirements before age 18. Since the order in which the requirements were satisfied was not stated in the statute, as long as the applicant meets the requirement of the statute before age 18 the applicant derives U.S. citizenship.

The exception was an adopted child during certain time periods. Therefore, for example, under the prior INA section 321(a)(3), citizenship would be derived when a divorce occurred after naturalization of one parent and the naturalized parent obtained legal custody of the child. The date of derivation would be the date of divorce.

• Legitimation and Legal Custody: Although the common application was based upon the naturalization of two alien parents, two important issues when adjudicating claims for derivation under section 321 of the Act are legitimation and legal custody. Section 321 allowed derivation when the two alien parents had a legal separation and the parent having legal custody naturalized. Interpretations 320.1(a)(6) contains a discussion of legal custody and legal separation which were valid for certain time periods. Officers should become familiar with the law of the states in their office’s jurisdiction with respect to legal custody. Generally, legal custody is custody granted by a competent governmental authority or by a statute. See also the current definition of legal custody in 8 CFR 320.1 and 8 CFR 322.1.

Provided all other statutory requirements are met, a child whose paternity has not been established by legitimation before the age of 16 may derive citizenship through the mother (see section 101(c) and section 321(a)(3) of the Act) . Remember that the age for legitimation has varied over the years from 16, 18 or 21 depending on the period and statute in effect.

Early volumes of the published decisions contain many decisions on legitimation and foreign legitimation. You may also consult the Foreign Affairs Manual or inquire with the Library of Congress if there are questions that still need to be resolved regarding the legitimation requirements of a particular country. Check the Library of Congress opinions on the Intranet before sending a request for an opinion. See Chapter 14.10 of this field manual regarding procedures for requesting Library of Congress research .

• Date of Citizenship: The date of citizenship for most applicants will be the date of the last action to occur before age 18. This will be one of the following:

– naturalization of parent(s).

– legal custody when there has been a legal separation.

–death of an alien parent when the other parent has naturalized

–naturalization of a surviving parent

– lawful admission for permanent residence.

For an adopted child, the date of citizenship will be the date of naturalization for the adopting parent if the other conditions are met.

(3) Other Persons Eligible for Certificates of Citizenship . The CCA amended section 322 of the Act to cover foreign-born children not eligible under section 320 of the Act who are residing outside the United States with a United States citizen parent.

Note: Until the Form N-600K, Application for Citizenship and Issuance of a Certificate under section 322, is available, a parent seeking naturalization for a foreign born child under this section may apply on the Form N-600; parents of an adopted child may also use Form N-643.

In order for a child born and residing outside the United States to acquire citizenship under section 322 of the Act, the United States citizen parent must apply for naturalization on behalf of the child. (See Appendix 71-7 of this field manual and 8 CFR 322.)

As of November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act, P.L. 107-273, amended section 322 of the Act to allow the addition of U.S. citizen grandparents and U.S. citizen legal guardians as eligible to apply for naturalization on behalf of a child born and residing outside the United States. Under this amended provision, application by the U.S. citizen grandparent or U.S. citizen legal guardian can be made within 5 years of the death of a U.S. citizen parent of a child who could otherwise have been the beneficiary of an application pursuant to section 322. The law does not authorize applications pursuant to section 322 by any person other than a U.S. citizen parent except in cases in which a U.S. citizen parent has died. (See Appendix 71-8 of this field manual.)

The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance. The naturalization process for such a child cannot take place overseas. The application is filed with the U.S. office where the child and applicant wish to appear for the interview. The U.S. office reviews the application, and if it appears to be approvable, will send the applicant and the child an appointment notice. The appointment letter should be taken to a U.S. Consulate or the consular section of a U.S. Embassy in order to obtain a nonimmigrant visa for the child, if a visa is required for entry. The child may be admitted under any nonimmigrant classification. “Admission” is defined under section 101(a)(13) of the Act; “parole” is not considered an admission. (See also 9 FAM 41.31 Note 11.6).

You will need to determine if the child is maintaining lawful status. A child is considered to have maintained lawful status if his or her nonimmigrant classification has not expired or been revoked if he or she has not violated the terms of his or her visa.

If the child qualifies under section 101(b)(1)(E) of the Act as having been adopted and has been in the legal custody and resides with the U.S. citizen parent for two years, documentation establishing the legal custody and residence must be submitted with the application. If the application is based upon a child as defined in section 101(b)(1)(F) of the Act, the application must be supported by an approved Form I-600 or evidence that the child has been admitted for lawful permanent residence with the immigr ant classification of IR-3 or IR-4.

Particular care should be taken to ensure that the U.S. citizen parent or U.S. citizen grandparent has the required residence and physical presence in the United States to transmit citizenship. Unlike in other sections of law, the U.S. citizen’s grandparent’s residence could have been before or after the birth of the child and application. Assuming the alien child meets all other requirements of section 322 , an alien child remains eligible after the death of the citizen parent's own citizen parent, so long as the citizen parent's own citizen parent met the physical presence requirement in section 322(a)(2)(B) at the time of death. (See LINK) to Policy Memorandum 94, dated April 17, 2003, "Effect of Grandparent's Death on Naturalization under INA Section 322.")

A child becomes a citizen under section 322 of the Act as of the date of the approval of the application and the takes the oath of allegiance, unless the oath is waived due to young age. The application must be approved and the oath taken before the child reaches his or her 18 th birthday. The child will receive an “A” certificate.

(e) Filing the Application and Initial Processing . Forms N-600 and N-643 are filed with the USCIS office in the United States having jurisdiction over the place of residence of the applicant. Overseas applicants may file the application with any office of the USCIS within the United States.

Upon receipt of the form, the application must be examined to assure that it is complete, presents a prima facie case of eligibility for the issuance of a certificate of citizenship and has the required fee and photographs. Applicants must submit any additional documentary evidence necessary to support their citizenship claim. Any document in a foreign language requires an English translation.

Further clerical operations will be necessary: obtaining or creating the applicant’s “A” file, verifying the naturalization of parent(s), verifying the military service of a parent, securing additional necessary documentation and other related files.

Former Form N–601, Status N-600 Application, was the processing worksheet for all N–600 cases. The N–601 has since been eliminated, but is exhibited in Appendix 71-9 to provide elements for a locally developed processing worksheet. Offices should use either Form N–601 or a locally developed processing sheet to record the status of the application. The processing sheet shall be maintained on the right side of the A-file.

You will need to determine if an interview is required. See 8 CFR 341.2(a)(1) to determine if the interview can be waived. All applications for certificates of citizenship filed under section 322 of the Act require an interview with the applicant and the child. See also Appendix 71-7 of this field manual.

• N-643 waiver of child's appearance: If the child is under 14 years of age on the date of the scheduled interview, and there are no circumstances in the case giving rise to the suspicion that the child is an impostor, or has abandoned residence in the United States, the child shall not be required to appear before an officer if the parent or guardian is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2, and to identify a photograph of the child as that of his/her son or daughter. If the child’s appearance before the officer in connection with the N-643 application is waived, the oath requirement shall be regarded as also waived, and the words "oath and personal appearance waived" shall be noted in the report section provided on Form N-643.

• N-600 waiver of child’s appearance: When the person(s) through whom citizenship was acquired or derived is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2 and to identify a photograph of the child as that of his son or daughter, the child's appearance before the officer in connection with the N-600 application, and the oath requirement in his case, shall be regarded as waived as long as there is no suspicion that the child is an impostor and no other s uch consideration.

(1) Initial Documentation . The documentary evidence in support of the N-600 application is not required if such evidence is available for use in other files. The instructions of the Form N-600 state that if the required documents are available, you should request the file to obtain them before asking the applicant to submit duplicate copies.

An unexpired United States passport issued for 5 or 10 years is now considered prima facie evidence of U.S. citizenship. Because it does not provide the actual basis upon which citizenship was acquired or derived, the submission of additional documentation may be required or the passport file may be requested. If after review there are differences or discrepancies between the USCIS information and the Passport Office records which would indicate that the application should not be approved, no action should be taken until the Passport Office has an opportunity to review and decide whether to revoke the passport.

If the applicant indicates that he or she did apply for some sort of documentation from the State Department, you may send a completed Form N-602 to the Director of the Washington District office. Clearly describe the document requested. Similarly, if documents requested are unusual in nature, they should be described in reasonable detail. Furthermore, if there appears to be a question concerning the legitimacy of the applicant, the validity of his parents’ marriage, or some other matter which may be expect ed to be resolved upon the basis of the documents requested, this fact should be appropriately stated in Form N-602. If there is some reason to believe that the applicant or parent has expatriated, briefly explain the facts on the form. You may attach supplementary sheets if there is not enough room on the Form N-602. Washington Investigations will verify the information or document requested with the Department of State. You should review the Foreign Affairs Manual Volume 9 Appendix C to determine the avai lability of documents from the applicant’s country of birth. The manual can be found on the Internet at:

A record of admission on Form I-94 may have been created during the period that retention requirements existed for some U.S. citizen children born abroad. These Forms I-94 are maintained in Headquarters Records for a United States citizen born abroad and entering the United States for the first time. Many are stored on microfiche and microfilm; in 1983, HQ Records started automating the I-94s. To request information about these files, you will need to send a fax to the Office of Records Management Certifica tion Unit at (202) 305-1737. You will need to include the name of the person or applicant, the date of birth, date of entry and the Form I- 94 number or admission number.

(2) Assumed name/Signature . When the applicant has assumed, or is known by a name other than a true name, but has not changed the name in accordance with the law of the jurisdiction where it was assumed, the certificate of citizenship shall be issued in the applicant's true name followed by the words "also known as" and the assumed name. However, in such a case the applicant shall be required to sign only the true name on the certificate and on the photographs submitted with the application. The certificate shall be signed by the ap plicant unless the applicant is a child unable to sign his/her name, in which case the certificate shall be signed by the parent or guardian, and the signature shall read "(insert name of child) by (insert name of parent or guardian, indicating which)."

(3) Assembling the Record of Proceeding . It is required that the officer properly identify and assemble the record material so that the record will be complete, that it may be read without taking the file apart, and that the papers in it are in the same order in every case handled. If an affidavit or sworn statement is taken, or a supplementary report is prepared by the officer to clear up a discrepancy or establishing that a discrepancy defeats the claimed citizenship, this affidavit, statement, or report should be attached to and remain a part of the file.

The order of the various papers shall be, to the extent possible, as follows:

(A) Form N-600 and supplementary sheets.
(B) Officer’s memo(s), if any.
(C) Affidavits or recorded statements taken by officer examining applicant or the person(s) acting in applicant’s behalf
(D) Documents from the applicant
(E) Other evidence, such as verification of naturalization, reports from Department of State

Form N-601 or the processing sheet shall be maintained as the uppermost piece of material on the right-hand side of the A-file.

(f) Adjudicating the Application .

(1) The Interview . Information gathered by the examiner during the review or examination may form a basis for revocation of the basic naturalization, or for criminal prosecution, or a basis of action upon similar applications in later years. You should review every answer in Form N-600, Form N-643, and Form N-600 Supplement A for completeness, accuracy, veracity and understanding by the applicant (or his parent or guardian if he is under 14). Each and every correction or change on the application or supplementary sheets, in cluding changes to improve legibility, shall be consecutively numbered, even though several changes may form a part of a single item within an answer. All changes and the numbers must be made in red ink.

The officer should quickly determine the identity of the person appearing for examination and his competency. The officer must be satisfied before administering the oath (or affirmation) that all persons understand the nature of the oath (or affirmation) and the significance of their testimony and of testifying under oath or affirmation.

The officer and all persons who are to be placed under oath or affirmation shall stand, if physically able, and have his right hand raised during the administration of the oath. The applicant, or his parent or guardian if he is under 14, shall be examined first.

Where it is necessary to develop and explain inconsistencies or discrepancies as a part of the record, every effort shall be made to obtain complete details in the form of a brief summary indicating what the applicant or witness said, rather than the officer’s conclusions, and if the matter is deemed important, a sworn (affirmed) statement shall be obtained. (See Chapter 15.6 of this field manual)

All documents shall be carefully examined and all persons interviewed with regard to all of the matters bearing on not only whether citizenship was derived or acquired as claimed but also whether the applicant is currently a citizen of the United States. In cases in which primary documentary evidence cannot be obtained, secondary evidence may be used.

The examination should cover such matters as identity and relationship; marital history; legitimacy or legitimation, where material; residence of the person(s) through whom claiming, both before and after naturalization; residence and physical presence before the applicant’s birth on the part of the person(s) through whom claiming; retention requirements; and expatriatory acts, including, where women are concerned, loss of citizenship by marriage to an alien.

Allegations as to naturalization may be supported by the Naturalization Certificate. If the certificate is unavailable or suspect, the allegations shall be checked against the relating file, other USCIS records, court records, or other verification of naturalization, and a determination made regarding whether the record of naturalization found relates to the applicant’s case.

Full details shall be set out for each link in the chain of citizenship for both the applicant and the person(s) through whom citizenship is claimed, and all elements essential to such citizenship shall be proved. Where a parent is a non-citizen national of the United States and that status is material to the applicant’s claim, this element shall also be fully developed.

Keep in mind the definitions of the terms “United States” and “outlying possessions” under the applicable section of law and clearly distinguish between “residence” and “physical presence” where necessary. (See section 101(a)(38), section 101(a)(29) and section 101(a)(33) of the Act).

All essential information furnished by the applicant or the person acting in his behalf which cannot be inserted in the application shall be made a part of the record by a separate detailed statement under oath or affirmation from the applicant or that person. If the nature and extent of military service in the Armed Forces of the United States are material to the claim of citizenship, Form N-426, or DD Form 214 issued to personnel at the time of discharge, shall be used to verify the information, unless th e verification relates to a person on active duty with the armed forces. In such event, a certification from the serviceman’s commanding officer, satisfactory in form and content, may be accepted.

(2) A Review of a Number of Important Data Elements on the Forms .

• PRC Number : Check the information on the Permanent Resident Card (PRC), if any, with the information in the appropriate box on the application and against the file number. This may reveal that a new file may have been created upon receipt of the application, even though an A-file previously existed. The examining officer must determine whether files should have been consolidated.
• Name : The applicant’s present full, true and correct name without abbreviation (and maiden name, if any) shall be shown. Any variation in name from that which is supported by the documents available shall be explained as part of the record.
•Birth data : The date and place of birth are especially important when derivation is through a parent, as they bear materially on identity of the applicant, legitimacy, requisite age to derive or retain citizenship, and relationship. They may also be material factors in considering whether particular conduct resulted in expatriation. The date of birth must be accurate and must be checked against all data in the file, such as the birth certificate, visa or other record of entry data, and alien registration record. Tran slations should be checked if possible with regard to dates, against the document translated, since translators may mark down an incorrect date in the translation. Where the date of birth is material, any variation in the record shall be fully explained as a part of the record and the examiner’s conclusion regarding which date is correct shall be supported by a memorandum containing his reasoning.
• Arrival data : Allegations regarding arrival shall be checked against arrival data in the file. If the applicant traveled on a United States passport and was admitted as a United States citizen, the passport number, together with the date and place of issuance, shall be shown.

If a lawful admission to the United State for permanent residence is material to the applicant’s citizenship, the officer must determine whether applicant’s entry constituted such an admission; whether the visa or record verified relates to the applicant; and whether entry on that date brings the applicant within the terms of the relevant statute. If retention requirements are applicable, the officer shall also determine whether they have been satisfied so far as timeliness of entry into the United States a nd residence or physical presence are concerned.

If the applicant claims United States citizenship at birth (“AA” or “AB” certificate), but was admitted to the United States as an alien, the facts shall be fully developed, particularly to ascertain whether expatriation has occurred. The explanation shall be included in a sworn (affirmed) statement made by the applicant, or, if time does not permit the taking of a statement, a memorandum shall be prepared by the examining officer setting forth the applicant’s explanation. Such sworn (affirmed) statement or memorandum shall be made a part of the record. If it appears the State Department has a relating file which should be consulted, a report indicating what the file shows should be obtained and included in the record.

When the applicant arrived before July 1, 1924, and lawful admission for permanent residence is material, the information set forth should be compared with data in official verifying records to determine that the record of arrival found relates. The verifying record should be carefully checked against data supplied by the applicant, since it may reveal discrepancies as to name, age, parentage, absences of parents or a prior application, possibly of another person, on which the same arrival record was used. Material discrepancies shall be explained in a memorandum made a part of the record, and where the discrepancies indicate possible fraud, a sworn (affirmed) statement should be taken and made a part of the record.
• Absences : The information in this item is essential to determining whether the applicant may have expatriated, or whether there was a failure to comply with applicable retention requirements. The date of an absence may be significant in itself if it occurred during a war period when service in the armed forces of the foreign state might reasonably be expected to have been performed with expatriative effect. It should be thoroughly explored with the applicant, parent to elicit all relevant facts bearing upon the iss ue. If you have determined expatriation occurred, develop a written summary of the facts.

After admitted absences have been recorded appropriately, the applicant shall be asked whether there were any other absences and, when the information in that respect is complete, the words “No other” shall be written in this space. The word “None” shall be written in the space for this item if there have been no absences.

• Required evidence of residence, physical presence : Documentary evidence of residence or physical presence required for acquisition or retention of citizenship must be submitted. Prior to 1978 records of admissions at ports of entry were often prepared by inspecting officers for United States children born abroad, upon the occasion of their first arrival in the United States. Such arrivals can be verified by consulting Headquarters records.

Public Law 95-432, effective October 10, 1978, repealed the retention requirements of former section 301(b) of the Act. The amending legislation was prospective only and did not restore citizenship to anyone who, prior to October 10, 1978, had lost citizenship by failure to retain it in accordance with former section 301(b) of the Act. The Act of October 10, 1978 also redesignated section 301(a)(1) to (7) as section 301(a) to (g).

Public Law 103-416, effective April 24, 1995, provided that aliens who had lost citizenship by failure to meet the retention requirements could regain their citizenship by taking the oath of allegiance. (See section 324 of the Act.) That provision, though, states that the effect is prospective only and during the period between loss and reacquisition the citizen was an alien. See discussion in section (c)(2) of this field manual chapter.

•Person through whom citizenship claimed : Only one block should be checked.
• Information about parents : The information called for is that relating to the natural or adoptive parents, as pertinent.
•Photographs and name shown on certificate : A person’s name may have been changed by a common law change, which permits the adoption of a name at will, provided it is not done for a fraudulent purpose. In many states, however, the right of common law change has been abrogated, or permitted only before a certain date. When it is found that a person may validly claim a name other than that given at birth, the space for name on the form shall be corrected to show such name other than the name at birth if not already shown. When it cannot be establishe d there has been a change of name by any legally valid method, the “also known as” procedure for including the assumed name in the citizenship certificate should be employed.
• Relating files : Relating files of other family members may be examined in cases where there is only secondary documentary proof, or where there is reason to suspect fraud, or where the relating file contains a document which should be made available to the applicant which bears upon the eligibility of the applicant.
• Prior application : If a prior application was denied, unless the denial was because of a ruling which has since been changed or abrogated, the evidence supporting the new application shall be carefully checked by the examining officer to determine whether it is sufficient to warrant a change in the previous determination. Any change shall be supported by documentary evidence.
•Signature : Be certain the application is properly signed by the applicant if he or she is 14 years of age or older; otherwise by his parent or guardian.
•Affidavit : The affidavit is found at the end of the application. Insert the proper word to designate the person executing the application. Draw a line through the words “and of attached supplementary pages numbered ( ) to ( ), inclusive” if there are no supplementary pages; otherwise, if any answers have been continued on supplementary sheets, number the pages and insert the numbers in the parenthesis.

Number any corrections and insert the numbers in the parenthesis. If there are no corrections draw a line through the words “and that corrections numbered ( ) to ( ) were made by me or at my request.” Make certain that the person executing the affidavit fully understands the allegations and corrections in the application and supplementary sheets before he signs the affidavit.

•Examination of Person(s) Through Whom Claiming and Other Witnesses . A witness shall be called to testify at the examiner’s option only if that person’s testimony is needed to prove a particular point, and only if alternative proof is unavailable or more difficult to produce than the witness.

When required by the examiner, the best witness is usually a close relative of the applicant, since generally such a relative, particularly an older one, is well qualified to testify to the relationship between the applicant and the person(s) through whom citizenship is claimed.

Unless there are material discrepancies, an issue of fact to be resolved, a question of expatriation, possibility of revocation of naturalization, or criminal prosecution, the written testimony of the person(s) through whom citizenship is claimed, or that of the witness(es) is not required. When material discrepancies or other circumstances require that the testimony be taken and recorded (written), a supplemental report clarifying the discrepancies, explaining the circumstances, or establishing that such d o in fact defeat the claim to citizenship shall accompany the application

(3) Supplementary Actions .

(A) Question-and-Answer Statements and Affidavits . When the evidence of applicant’s eligibility or ineligibility for a certificate of citizenship consists largely of testimony rather than of primary or secondary documentary evidence, it is necessary to record the testimony in a sworn (or affirmed) question-and-answer statement, or an affidavit, preferably the former. Such sworn (affirmed) statements shall be taken also where there is a complex or controversial question of fact, as for example, with regard to applicant’s age or identity. (See Chapter 15.6 of this field manual.)

(B) Blood Tests . The burden is upon the applicant to establish relationship to a United States citizen and ordinarily such proof is easily adduced in the form of primary documentary evidence. In many cases this solid documentary evidence is lacking, and although oral evidence may be received in such cases, it may be appropriate to require reinforcement of such evidence with less fallible proof in the form of blood tests. The officer should follow the policy as set forth in Chapter 21.2(d)(1) of this field manual.

(4) Making a Decision . The burden of proof is upon the applicant to establish his right to the certificate.

(A) Review of Evidence. All of the evidence of record must be reviewed to determine whether the applicant has satisfactorily established all the links in the claim to citizenship. Although this is an administrative proceeding not circumscribed by the rules of evidence applicable to judicial proceedings, it should be kept in mind that the record may subsequently be reviewed in judicial proceedings. The decision on the application, therefore, should be supported by evidence in the record of proceeding.

The evidence submitted by the applicant may be primary or secondary. Essential facts relating to birth, death, marriage, and divorce shall be established by official public records, if available. Only if the officer is satisfied that the applicant has made a reasonable but unsuccessful effort to procure such a record, or has official knowledge that it is unobtainable, may the officer accept as sufficient other secondary evidence that the applicant presents.

A document is most valuable when it is a record created contemporaneously with, or reasonably proximate to, the happening of the event recorded. A delayed or nunc pro tunc record created long after the event does not have the evidentiary value that attaches to a record created contemporaneously with the event. Such a delayed record must be shown to be based upon probative supporting evidence. Where the record contains little or no corroborative evidence, the applicant must produce further, more convincing e vidence. Inquiry should also be made not only into the manner in which the delayed record was created, but also into the reasons for the delay. The likelihood that the facts are as alleged should also be considered in relation to all information developed.

(B) Failure to Appear . The notice to appear for an examination shall be given not less than 2 weeks before the scheduled date of interview. If the applicant fails to appear for the examination, or to otherwise explain his/her absence, or does not request an alternative examination or does not respond to Form N-14 within the allotted time, the application shall be denied in accordance with 8 CFR 103.2(b)(13).

(C) Continuing a Case . Form N-14 may be used to request submission of documentary evidence or additional information from an applicant at any stage of the proceedings. The applicant shall be given a date by which to submit the documentation in accordance with 8 CFR 103.2(b)(8).

(D) Approval . Upon completion of the examination of the applicant (or of the person acting on behalf of an underage applicant) if one is conducted, the officer conducting the examination shall complete the affidavit of the application.

If the appearance of the child has been waived under the words “upon personal appearance” shall be stricken from the opening sentence in the “Report and Recommendation on Application.” No conditional or contingent recommendation is to be made therein. The recommendation shown is to be unqualifiedly either to grant or to deny the application.

The delivery of the certificate shall be withheld until the Form I-151/I-551 (PRC) is surrendered. Be sure to obtain PRC, reentry or other Service or USCIS-issued document. If it is alleged such documents were lost or destroyed, the applicant’s (or his parent’s or guardian’s) claim in this regard should be recorded on a lost PRC affidavit, Record of Sworn Statement (Missing PRC).

You must complete the stipulation regarding the manner in which citizenship has been acquired or derived. For example, if the applicant claims citizenship at birth, the item shall reflect the manner in which the person through whom citizenship is claimed acquired citizenship; whether such person was a United States citizen at the time of the applicant’s birth; whether such person resided or was physically present in the United States prior to the applicant’s birth and, where applicable, the period of such r esidence or physical presence. Appendix 71-5 of this field manual contains sample stipulations representative of cases in various categories. These stipulations do not exhaust the factual situation in which citizenship may be derived or acquired, but they are to be used verbatim when appropriate to the case and will serve as guides in drafting other stipulations to meet different factual situations.

(D) Denial . If the application is denied, notice of the denial and an opportunity to appeal therefrom shall be given to the applicant on Form I-292. If the applicant wishes to appeal the denial, he or she must file the appeal within 30 days of the date of the decision with the office that made the original decision. The notice of appeal must be filed on Form I-290B, Notice of Appeal to the Administrative Appeal Office (AAO). The appeal will be decided by the AAO.

Labels: , , , , , ,

Friday, March 28, 2008

Chicago Immigration Court, Deportation and Removal

Labels: , , , , ,

Tuesday, January 22, 2008

Repatriation of Vietnam Citizens

From: Koroma, Kadia H [] Sent: Tuesday, January 22, 2008 11:57 AM To: undisclosed-recipients: Subject: ICE Assistant Secretary Myers signs historical MOU with Vietnam Importance: High

January 22, 2008

Contact: Public Affairs

(202) 514-2648

News Release

ICE Assistant Secretary Myers signs historical MOU with Vietnam MOU will allow for the repatriation of Vietnam Citizens who entered the United States on or after July 12, 1995

WASHINGTON, D.C. - A path to diplomatic cooperation and partnership between the U.S. and Vietnam was sealed today after Homeland Security Assistant Secretary for Immigration and Customs Enforcement Julie L. Myers and Deputy Foreign Minister for the Government of Vietnam Mr. Dao Viet Trung signed a memorandum of agreement (MOU). The MOU, signed during a special ceremony at the Vietnamese Ministry of Foreign Affairs Office in Hanoi lays out a framework for the prompt and efficient repatriation of Vietnamese nationals who have been ordered removed by the U.S. Government.

The repatriation MOU is the culmination of almost a decade of negotiations between the United States Department of State and the government of Vietnam. Under this agreement, Vietnamese nationals who arrived in the United States on or after July 12, 1995 are subject to return to Vietnam. To date, this will affect approximately 1,500 Vietnamese nationals currently living in the U.S.

"This agreement between our countries reflects the commitment of our respective nations to come together and craft viable partnerships that work for both of us," said Julie L. Myers. "Agreements such as this are the building blocks of diplomacy. This agreement allows us to carry out a judge's order to remove individuals from our country in a safe and humane manner."

As part of the agreement the U.S. government will pay for the cost of repatriating individuals under the agreement. Once the Vietnamese government has issued a travel document, the U.S. Government will provide at least fifteen (15) days notice of the flight and travel arrangements by which the person will be returned to Vietnam.

On par with hundreds of other ICE repatriation missions across the globe, ICE will also manage the repatriation of Vietnamese nationals with equal care and commitment. The missions will be carried out in an orderly and safe way, and with respect for the individual human dignity of the person being repatriated.

The Vietnamese Government will provide a prompt response to the U.S. Government on cases referred for their review. If it is determined that a person whose name and file has been provided to the Vietnamese Government is a national of Vietnam and has been ordered to be removed from the U.S., the Vietnamese Government will issue a travel document authorizing that person's return to Vietnam.

The MOU will enter into force sixty (60) days from the date of signature, January 22, 2008 and will be valid for five years. The MOU will be extended automatically for terms of three years thereafter unless written notice not to extend is given by one government to the other at least six months prior to the expiration date of the Agreement. The MOU may be amended or supplemented by written agreement of the Vietnamese government and the U.S. government through appropriate diplomatic channels.

Efficient and expedient removal procedures are an important part of ICE's strategy to support the Secure Border Initiative (SBI), a comprehensive multi-year plan by the Department of Homeland Security to secure America's borders and reduce illegal migration.

Under SBI, Homeland Security seeks to gain operational control of both the northern and southern borders, while re-engineering the detention and removal system to ensure that illegal aliens are removed from the country quickly and efficiently. SBI also involves strong interior enforcement efforts, including enhanced worksite enforcement investigations and intensified efforts to track down and remove illegal aliens inside this country.

U.S. Immigration and Customs Enforcement was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities.

Labels: , , , ,

Wednesday, September 5, 2007

USCIS Civil Surgeons Locator, Adjustment of status, Permanent Resident, Green Card, Civil Surgeons Illinois, Medical Exam Form I-693

All applicants for adjustment of status are required to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the U.S. Citizenship and Immigration Service (USCIS). The designated civil surgeon is responsible for the entire medical examination, and will record the results on Form I-693. The required medical exam consists of a physical examination, a tuberculin (TB) skin test and a serologic (blood) test. The designated civil surgeon must perform these tests in accordance with the Technical Instruction for the Medical Examination of Aliens in the United States, published by the Centers for Disease Control and Prevention (CDC). The Form I-693 will be given to you in a sealed envelope to present to the USCIS. You should not open the sealed envelope. The requirements of the medical examination are as follows:

PHYSICAL EXAMINATION: Required of ALL applicants.

TUBERCULIN (TB) SKIN TEST: Required of ALL APPLICANTS TWO YEARS OF AGE AND OLDER. Applicants under the age of two may be required to have a tuberculin skin test if tuberculosis is suspected, if the applicant has a history of contact with a known TB case, and/or if there is any other reason to suspect TB. A chest x-ray is required only if the reaction to the TB skin test is 5mm or greater.

SEROLOGIC (BLOOD) TEST: Required of ALL APPLICANTS 15 YEARS OF AGE AND OLDER. The serologic test will include tests for the virus that causes the acquired immune deficiency syndrome (AIDS). Applicants under the age of 15 must be tested if there is reason to suspect HIV infection.

USCIS Civil Surgeons Locator office_type=CIV

From: Michael Aytes /s/ Associate Director, Domestic Operations
Date: January 3, 2007

Re: Extension of Validity of Medical Certifications on Form I-693

This memorandum temporarily extends the validity of civil surgeon endorsements on Form I-693 for certain adjustment of status applicants.

For adjustment of status applicants, the endorsement of a civil surgeon on Form I-693, Medical Examination of Aliens Seeking Adjustment of Status, is generally valid for one year. Some adjustment of status applications are concurrently filed with an immigrant visa petition as provided for at 8 CFR 245.2(a) (2).

These applications are filed with a Form I-693 as required by 8 CFR 245.5. Some of these applications remain pending for more than the one-year validity period.

In a policy memorandum dated January 11, 2006, U.S. Citizenship and Immigration Services (CIS) extended the validity of the civil surgeon endorsement on Form I-693 until the adjustment of status application could be adjudicated. This policy was issued in consultation with the Centers for Disease Control and Prevention (CDC) and is limited to those applications where no Class A or Class B medical condition was certified. The policy is in effect until January 1, 2007.

Due to the continuing backlog of some concurrently filed adjustment of status applications, the validity of the civil surgeon’s endorsement on Form I-693, when submitted in support of a concurrently filed adjustment of status application as provided for at 8 CFR 245.2(a) (2), is extended until the time of adjudication if no Class A or Class B medical condition is certified by the civil surgeon. This policy will be in effect until January 1, 2008.

Download Memo:


Medical Examinations.

(a) Medical Grounds of Inadmissibility Defined . Section 212(a)(1)(A) of the Act designates four categories that render an applicant for a visa, admission, or adjustment of status inadmissible on medical grounds. The medical grounds are determined according to the regulations published by the Department of Health and Human Services (HHS) at 42 CFR part 34. The required medical exam, discussed in Chapter 23.3(b), below, must be performed according to the specific guidelines published by the Centers for Disease Control and Prevention (CDC). These are the Technical Instructions for the Medical Examination of Aliens in the United States , used by civil surgeons in the United States, and the Technical Instructions for the Medical Examination of Aliens , used by panel physicians abroad. ( Technical Instructions) . The Technical Instructions have the force of a regulation. See 42 CFR 34.3(f). They can be accessed online at: . If the medical condition found by the panel physician or civil surgeon falls under any of the four categories described below, the civil surgeon or panel physician must certify it as Class A in order for the applicant to be inadmissible on medical grounds. Class B medical conditions are defined at 42 CFR § 34.2(e) as physical or mental abnormalities, diseases, or disabilities serious in degree or permanent in nature amounting to a substantial departure from normal well-being; however, they do not render the applicant inadmissible on medical grounds. Waivers are discussed in Chapter 41.3.

(1) Section 212(a)(1)(A)(i) of the Act . This ground of inadmissibility covers individuals who are found to have a communicable disease of public health significance, including, “. . . infection with the etiologic agent for acquired immune deficiency syndrome.” The HHS regulations that define a communicable disease of public health significance are found at 42 CFR § 34.2(b). The following eight conditions are listed: chancroid; gonorrhea; granuloma inguinale; acquired immune deficiency syndrome (HIV/AIDS); Hansen’s disease (infectious leprosy); lymphogranuloma venereum; infectious state syphilis; and infectious tuberculosis (TB). Note that, for TB, only Class A TB renders the applicant inadmissible under section 212(a)(1)(A)(i) of the Act. Under current CDC guidelines, Class A TB means tuberculosis that is clinically active and infectious (communicable).

(2) Section 212(a)(1)(A)(ii) of the Act . This ground covers only immigrant visa and adjustment of applicants who have not received all of the required vaccinations. See Chapter 23.3(g) further below.

(3) Section 212(a)(1)(A)(iii) of the Act . This ground covers individuals who have a physical or mental disorder or harmful behavior associated with that disorder. It is further divided into two subcategories:

(I) Current physical or mental disorders, with harmful behavior associated with that disorder; and

(II) Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

Note 1: Harmful behavior is defined under section 212(a)(1)(A)(iii) of the Act as behavior that “. . . may pose, or has posed, a threat to the property, safety, or welfare of the alien or others . . . .”

Note 2: Mental retardation no longer renders an applicant inadmissible on medical grounds, unless the civil surgeon or panel physician determines that the applicant is also exhibiting or has exhibited in the past, associated harmful behavior, as described in Note 1.

(4) Section 212(a)(1)(A)(iv) of the Act . This ground of inadmissibility covers individuals who are found to be drug abusers or drug addicts. The Technical Instructions published by the CDC refer to the nonmedical use of a psychoactive substance, and make an exception for experimentation. The CDC has instructed civil surgeons and panel physicians to use their clinical judgement and/or seek a consultation when facing a situation where the applicant’s medical history indicates past nonmedical use of a psychoactive substance or when there is a clinical question as to whether the use was experimental or part of a pattern of abuse. If you have valid reasons to question the com pleteness or accuracy of the medical exam report, you may direct the applicant to return to the civil surgeon or panel physician for a reexamination or ask the CDC to review the medical report.

(b) Aliens Required to Have a Medical Examination . Because section 212(a)(1)(A) of the Act states that all medical-related grounds of inadmissibility are determined “. . . in accordance with regulations prescribed by the Secretary of Health and Human Services,” the applicant’s own admission is not sufficient to uphold a finding of inadmissibility on medical grounds. A medical examination performed by panel physician designated by the Department of State or a civil surgeon designated by the district director is required. Hill v. INS, 714 F 2d. 1470 (9 th Cir. 1983). The following requirements apply with respect to medical examinations.

(1) Immigrant Visa Applicants . Per section 221(d) of the Act, all individuals applying for an immigrant visa must submit to a medical examination before the visa is issued.

(2) Refugees Applying for Admission under Section 207 of the Act . Per section 207(c)(1) of the Act, all individuals applying for admission as refugees must, among other requirements, establish that they are admissible to the United States, or establish eligibility for a waiver as provided under section 207(c)(3) of the Act. Because the medical grounds of inadmissibility under section 212(a)(1)(A) of the Act apply, a medical exam is required. For a discussion of the vaccination requirements specifically as they apply to refugees, refer to Chapter 23.3(g)(4)(C).

(3) Adjustment of Status Applicants . Per section 245(a)(2) of the Act, an individual applying for adjustment of status to that of a permanent resident must be “eligible to receive an immigrant visa and [be] admissible to the United States for permanent residence. . . .” Thus, to comply with the visa issuance requirements of sections 221(d) and 245(a)(2) of the Act, and the medical grounds of inadmissibility under section 212(a)(1)(A) of the Act, all individuals applying for adjustment of status under section 245 of the Act are required to ha ve as part of their applications for adjustment of status:

• A valid medical examination (Form I-693, Medical Examination of Aliens Seeking Adjustment of Status ), properly endorsed by a physician authorized to conduct medical examinations for this purpose; and

• A certificate establishing compliance with the vaccination requirements described in section 212(a)(1)(A)(ii) of the Act, unless otherwise exempt. For ease of reading, the vaccination supplement to Form I-693 is referred to in this guidance as the “vaccination sign-off.”

(4) Presumption of Lawful Admission Cases, Section 249 Registry Cases, and Section 289 Indian Cases . A medical examination is not required.

(5) Nonimmigrants .

(A) General . Per section 221(d) of the Act, a consular officer may, prior to the issuance of a nonimmigrant visa, require the applicant to submit to a physical or mental examination or both, if considered necessary to determine whether the applicant is eligible to receive the visa. Similarly, CBP officers at ports-of-entry may require a nonimmigrant (arriving with or without a visa) to submit to a medical examination if necessary to determine whether a medical ground of inadmissibility under section 212(a)(1)(A) of th e Act applies.

(B) Nonimmigrants under Section 101(a)(15)(K) or (V) of the Act . Individuals outside the United States applying for nonimmigrant visas under any provision of section 101(a)(15)(K) or (V) of the Act must undergo a medical exam by a panel physician as part of the visa application process. Individuals in the United States applying for change of status to that of a “V” nonimmigrant pursuant to section 214(o) of the Act must submit with their application a medical exam report (Form I-693) completed by a designated civil surgeon. The vaccination requirements of section 212(a )(1)(A)(ii) of the Act do not apply at this stage of the process. See also Chapter 23.3(g)(4)(J).

(c) Authorized Civil Surgeons . If Form I-693 and the accompanying vaccination supplement have been endorsed by anyone other than a designated civil surgeon, they must be returned to the applicant for corrective action. To verify whether the physician that performed the medical exam is a civil surgeon, go to the USCIS website. The list of designated civil surgeons is found at the end of each individual office profile. Select the office and check the civil surgeon list maintained in the local office profile for the USCIS district where the medical exam was performed. If you cannot access this information from the USCIS intranet, refer to Appendix 23-1 of this field manual from the latest version of I-LINK. The civil surgeon listing found in Appendix 23-1 is divided into three parts (23-1A, 23-1B, and 23-1C) representing the Eastern, Central, and Western regions, respectively. Note, however, that the civil surgeon list maintained on the website is updated daily. Therefore, try to clarify any discrepancies through your district/sub-office and/or your regional point of contact (POC), before you return the case for evidence (RFE the case). If you have reaso n to doubt the authenticity of the endorsement by a civil surgeon within your district, refer to the file maintained in your district office. If you have doubts about the authenticity of an endorsement by a civil surgeon located in another district, consult informally (i.e., by telephone and fax machine) with the Adjudications section of that district office. If informal consultation does not clear up all doubts, refer the matter formally through a request for an auxiliary investigation (see AFM Chapter 10.14 ). See AFM Chapter 83 for the procedures to be followed for certifying, reviewing, and decertifying civil surgeons.

(d) Submission of the Medical Examination Report . According to Form I-485, Application to Register Permanent Residence or Adjust Status , which was last revised on February 27, 2000, the following instructions apply:

• Applications Filed at a Service Center : Individuals applying through a USCIS Service Center (including asylees adjusting under section 209 of the Act), must submit the medical examination report with the adjustment of status application. Note that refugees need only submit the vaccination supplement to Form I-693 (not the entire Form I-693) if there were no medical grounds of inadmissibility that arose during the initial medical exam performed overseas. See 8 CFR § 209.1(c).

• Applications Filed at a District Office : Individuals applying for adjustment of status through a district or sub-office do not submit Form I-693 with the initial filing. Rather, they should be provided instructions about the medical examination in conjunction with the notice of their in-person interview. See Chapter 23.3(g) for information about the specific situations applicable to K and V nonimmigrants.

(e) Validity of Medical Certifications.

(1) General . [Revised as of January 3, 2008; AD 07-22.] Form I-693 is normally valid for a period of 1 year from the date it was endorsed by the civil surgeon. In accordance with the agreements reached between USCIS and the CDC, if the adjustment of status application has been pending for over 1 year and Form I-693 was included with the initial filing, the adjudicating officer may accept a medical exam report that is more than 1 year old because of the pending adjustment of status application, IF there was no Class A or B medical condition noted. This agreement is in effect until January 1, 2008. See January 3, 2007, Extension of Validity of Medical Certifications on Form I-693.

(2) K and V nonimmigrants . A new medical exam is not required in order to apply for adjustment of status to that of a lawful permanent resident, if one of the following scenarios exists:

• The applicant is a K or V nonimmigrant and the medical exam did not reveal any Class A or B medical condition, and the application for adjustment of status was filed within 1 year of the date of the original medical exam. If these requirements are met, the medical exam remains valid until the date USCIS adjudicates the adjustment of status application; or

• The applicant is a K or V nonimmigrant who received a conditional waiver under section 212(g) of the Act in conjunction with the K or V nonimmigrant visa or the change of status to V. The section 245 adjustment of status application must be filed with USCIS within 1 year of the date of the original medical exam, and the applicant must submit evidence of compliance with the specific terms and conditions imposed on the waiver. The medical exam remains valid until the date USCIS adjudicates the adjustment of status application. If these requirements have not been met, a new medical examination is required. And, if that new medical examination reveals a Class A medical condition, a new waiver application will also be required. In such cases, determine whether the applicant complied with the terms and conditions of the first waiver. That determination should be given considerable weight in the adjudication of a subsequent waiver application.

Note: Although there may be cases where a new medical exam is not required, compliance with the vaccination requirements is still required, as the vaccination sign-off was not included as part of the original medical exam report. See Chapter 23.3(g)(4)(J).

(f) Review of Form I-693 . For those applicants required to undergo a complete medical exam, review Form I-693 to ensure compliance with the following requirements:

(1) Form I-693 Must Be Signed by a Designated Civil Surgeon . To verify whether the physician who performed the medical exam is a designated civil surgeon, refer to the instructions in Chapter 23.3(b).

(2) Form I-693 Must Be Completed Legibly in English and Must Be in a Sealed Envelope . The results must be typed or printed legibly and placed in an envelope sealed by the civil surgeon. If Form I-693 has not been dated and signed by the civil surgeon, has not been completed legibly in English, or if the envelope was not sealed by the civil surgeon or there is evidence of tampering with the sealed envelope, return a copy of the I-693 to the applicant for corrective action.

(3) Form I-693 Must Clearly Indicate That All Required Tests Were Performed and the Results . The medical examination must include all evaluations/assessments/tests necessary to determine whether the applicant is inadmissible on medical grounds under section 212(a)(1)(A) of the Act. Findings of physical and mental disorders and drug abuse must be indicated in the "Remarks" section of Form I-693. If an applicant has been referred for further evaluation for a communicable disease of public health significance, physical or mental disorders with associated harmful behavior, psychoactive substance abus e or other physical or mental abnormalities, diseases or disabilities, the medical report must be accompanied by a definitive diagnosis (or a short list of likely diagnoses) and a statement as to whether the presence or absence of a Class A or Class B medical condition has been established. If the findings have not been clearly stated, return a copy of Form I-693 to the applicant for corrective action.

(4) Form I-693 Must Be Accompanied by a Properly Completed Vaccination Supplement, Unless the Applicant Is Applying for “Adjustment” of Status to V . For a complete discussion of the vaccination requirements and review of the vaccination supplement, refer to Chapter 23.3(g). For a discussion of waiver issues related to the vaccination requirements, see Chapter 41.3(b).

(5) Required Testing . All applicants must undergo a general physical examination and a mental status evaluation. In addition, other tests may be required depending on the applicant’s age and/or possible exposure to a particular disease. If all required tests/evaluations have not been performed, return a copy Form I-693 to the applicant for corrective action.

• Tuberculin (TB) Skin Test : All applicants 2 years of age and older must have a tuberculin skin test (TST). Civil surgeons may require an applicant who is less than 2 years of age to have a TST if he or she has a history of contact with a known TB case, or if there is any other reason to suspect TB disease. If the applicant’s reaction to the TST is 4 millimeters or less, no further testing is required. A chest X-ray is required only when the reaction to the TST is 5 millimeters or more. If the civil surgeon has performed a chest x-r ay for TB, but not a TST, the USCIS office that granted the civil surgeon designation should advise the civil surgeon in writing of the deficiency and of the need to comply with CDC’s Technical Instructions . Forward a copy of the letter and Form I-693 to CDC at the following address:

Chief, Migration Health Assessment Section

Division of Global Migration and Quarantine (E03)

Centers for Disease Control and Prevention (CDC)

Atlanta, Georgia 30333.

If the same civil surgeon receives two such letters of corrective action, the District Director may take appropriate steps to revoke the civil surgeon designation. See Chapter 83.4(c).

• Serologic (blood) tests . All applicants 15 years of age and older must undergo serologic (blood) testing for syphilis and human immunodeficiency virus (HIV) infection. Applicants under the age of 15 must undergo serologic testing if there is reason for the civil surgeon or for DHS to suspect infection.


Section 212(a)(1)(A)(ii) of the Act requires all immigrant visa and adjustment of status applicants to establish that they have been vaccinated against certain vaccine-preventable diseases. Section 212(g)(2) of the Act authorizes waivers in certain instances. To implement the vaccination requirements and the corresponding waiver provisions, USCIS developed streamlined procedures whereby certain individuals may be granted a waiver without the need to file a form or pay a fee. Furthermore, those applicants who are not covered under the streamlined procedures may apply for a waiver on an individual basis. Refer to Chapter 41.3(b) for additional information about these procedures.

(1) Vaccination Requirements Defined . Section 341 of the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) created an additional medical ground of inadmissibility under section 212(a)(1)(A)(ii) of the Act relating to vaccinations. Individuals who are subject to the vaccination requirements who have not complied (or who are unable to submit acceptable proof of compliance) are inadmissible under section 212(a)(1)(A)(ii) of the Act, unless they are fully vaccinated or receive a waiver.

(2) Effective Date . The vaccination requirements became effective on the IIRIRA enactment date, September 30, 1996, and apply with respect to all immigrant visa and adjustment of status applications filed on or after that date.

(3) Required Vaccinations . Section 212(a)(1)(A)(ii) of the Act specifies the following vaccinations: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type b, and hepatitis B. Section 212(a)(1)(A)(ii) of the Act states that the applicant is also required to have any other vaccinations recommended by the Advisory Committee on Immunization Practices (ACIP). The ACIP provides guidelines on appropriate doses of vaccines at specific intervals for specific age groups. The varicella, influenza, and pneumococcal vaccines are also required, because they are currently recommended by the ACIP.

(4) Applicability . Section 212(a)(1)(A)(ii) of the Act states that the vaccination requirements apply with respect to anyone who “. . . seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence . . . .” Thus, the applicability of the vaccination requirements depends on the specific immigration benefit the applicant is seeking. The following list clarifies these distinctions for purposes of section 212(a)(1)(A)(ii) of the Act:

(A) Adjustment of Status and Immigrant Visa Applicants . All adjustment of status and immigrant visa applications filed on or after September 30, 1996, must be sufficient to establish compliance with the vaccination requirements under section 212(a)(1)(A)(ii) of the Act or eligibility for a waiver. The waiver provisions and application procedures are addressed in Chapter 41.3 of this field manual.

(B) Refugees Making an Initial Application for Admission under Section 207 of the Act . USCIS has determined that the vaccination requirements do not apply to individuals seeking admission to the United States as refugees under section 207 of the Act, because there is no application for an immigrant visa or for adjustment of status at this stage of the process. Therefore, the results of a medical examination performed abroad for a refugee seeking admission to the United States under section 207 of the Act need not include the results of a vaccination assessment. DHS officers at ports-of-entry shoul d not refuse admission to refugees solely because they have not yet complied with the vaccination requirements.

(C) Refugees Applying for Adjustment of Status under Section 209 of the Act . Refugees must satisfy the vaccination requirements under section 212(a)(1)(A)(ii) of the Act when they apply for adjustment of status under section 209 of the Act, 1 year following their admission under section 207 of the Act.

The regulations at 8 CFR § 209.1(c) state that "[u]nless there were medical grounds for exclusion at the time of arrival, a United States Public Health Service medical examination is not required." The term “medical ground for exclusion” means only Class A medical conditions. Therefore, a refugee who received a medical exam in conjunction with the initial application for admission under section 207 of the Act generally does not need to repeat the entire medical exam. He or she does, however, need the vaccin ation sign-off from the civil surgeon when adjusting under section 209 of the Act 1 year later. Consequently, USCIS officers should not require refugees to repeat the entire medical exam if it did not reveal a Class A medical condition. A refugee who was found to have any Class B medical condition that would result in any medical ineligibility under section 212(a)(1)(A) of the Act, without proper medical care or follow up, must submit evidence establishing compliance with any follow up examinations or treatment, as may have been required as a condition of the original admission.

Although a new medical examination may not be required, the refugee must nevertheless establish compliance with the vaccination requirements of section 212(a)(1)(A)(ii) of the Act at the time of adjustment under section 209 of the Act, by submitting a vaccination supplement completed by a designated civil surgeon or in certain cases, by a state or local health department official. For information about the designation of state and local health departments as civil surgeons for refugees adjusting under secti on 209 of the Act who need only the vaccination sign-off, refer to Chapter 83.4(b) of this field manual.

(D) Asylees Making an Initial Application for Asylum under Section 208 of the Act . Individuals applying for asylum under section 208 of the Act are not subject to the vaccination requirements under section 212(a)(1)(A)(ii) of the Act. They are not required to undergo a medical exam.

(E) Asylees Applying for Adjustment under Section 209 of the Act . If the asylum application is approved and the individual applies for adjustment of status under section 209 of the Act and 8 CFR § 209.2 at least 1 year later, a complete medical exam is required, including a vaccination assessment, as required under section 212(a)(1)(A)(ii) of the Act. See 8 CFR § 209.2(d).

Note : Regarding Kurdish asylees paroled under Operation Pacific Haven, the INS determined, in consultation with the Centers for Disease Control and Prevention (CDC), that medical examinations performed under Operation Pacific Haven for Kurdish asylees either before arrival or while on Guam are acceptable for purposes of adjustment of status under section 209 of the Act and 8 CFR § 209.2. Kurdish asylees were given copies of these medical reports and should include them with the adjustment application. If the Ku rdish asylee no longer has a copy of the medical report, a new medical exam must be performed by a designated civil surgeon, including the vaccination assessment. In all cases, the adjustment application under 8 CFR § 209.2 submitted by a Kurdish asylee must also include the vaccination sign-off.

(F) Registry Applicants under Section 249 of the Act . Aliens applying for the creation of a record of admission for permanent residence are not required to undergo a medical examination or comply with the vaccination requirements. This is because section 212(a)(1) of the Act is not among the grounds of inadmissibility or ineligibility specified in section 249 of the Act.

(G) North American Indians . American Indians born in Canada who meet the requirements described in the regulations at 8 CFR §§ 289.1 and 289.2 may be regarded as having been lawfully admitted for lawful permanent residence. Because such lawful admission is recorded on Form I-181, and neither an immigrant visa nor an adjustment of status application is required, the applicant is not required to establish compliance with the vaccination requirements. Therefore, officers at ports-of-entry should not consider the vaccination requirement s in determining the eligibility of North American Indians seeking benefits under section 289 of the Act and 8 CFR part 289.

(H) Children of Returning Residents (XA and NA Babies) . This group covers children born abroad either subsequent to the issuance of an immigrant visa to a parent applying for admission while the visa remains valid, or during the temporary visit abroad of a mother who is a national or permanent resident of the United States. Until further notice, continue admitting these two groups of children under the procedures in effect prior to the implementation of IIRIRA (i.e., with no medical or vaccination requirement).

(I) Nonimmigrants . Except as provided in paragraphs (J) and (K), individuals applying for a nonimmigrant visa under any provision of section 101(a)(15) of the Act or for admission to the United States as a nonimmigrant, are not required to comply with section 212(a)(1)(A)(ii) of the Act relating to vaccinations.

(J) Special Considerations for K and V Nonimmigrants . The plain language in section 212(a)(1)(A)(ii) of the Act regarding the vaccination requirements refers to applicants for immigrant visas and for adjustment of status. Applicants for visas under section 101(a)(15)(K) or (V) of the Act are not applicants for immigrant visas at this stage of the process. DOS and USCIS have agreed that the required medical examination for K and V nonimmigrants outside of the United States will include the vaccination assessment described in section 212(a)(1)(A)(ii) of the Ac t. The vaccination assessment will be performed in anticipation of the adjustment of status application, to give the applicants the opportunity to retrieve the records for those vaccinations they have already received, while they are still abroad. Individuals in the United States applying for change of status to V will not be required to undergo a vaccination assessment in conjunction with their medical exam, but civil surgeons are not precluded from advising them about the vaccination requirements in antic ipation of their adjustment of status application.

While some panel physicians may elect to indicate the vaccinations already received on the vaccination supplement, consular officers will not refuse the K or V visa and CBP officers will not refuse admission to a K or V nonimmigrant, solely because all of the vaccination requirements have not been met. When the panel physician's report indicates that the applicant lacks certain required vaccines, consular officers will attach a single-page addendum to Form DS-2053 (Formerly Form OF-157), Medical Examination for Immigrant or Refugee Applicant , and the accompanying worksheets, advising the applicant of the need to comply with the vaccination requirements upon the application for adjustment of status in the United States.

(K) Vaccination Requirements for K and V Nonimmigrants Adjusting Status to That of Lawful Permanent Resident under Section 245 of the Act . In certain instances, K and V nonimmigrants are not required to repeat the original medical examination that was performed to obtain that nonimmigrant classification. See Chapter 23.3(d)(2). When this is the case, only the vaccination sign-off is required. The vaccination sign-off must have been done by a designated civil surgeon. If the applicant obtained a K or V nonimmigrant visa overseas, the medical exam report completed by the panel physician overseas, Form DS-2053 and accompanying worksheets, should already be in the alien’s A-File, if it was surrendered at the port-of-entry with the visa packet. Note that, in completing the vaccination sign-off, the designated civil surgeon may accept the vaccination supplement to Form DS-2053 completed by the panel physician overseas and proof of additional vaccines received following the applicant's admission to the United States. If the applicant was granted a change of status to V in the United States under section 214(o) of the Act, the medical exam report completed by the civil surgeon should be in the A-file created at the time that the change of status was initially granted. The applicant will need to return to the civil surge on for the vaccination sign-off. If, however, the requirements of Chapter 23.3(d)(2) have not been met, a new medical examination is required, including the vaccination assessment specified under section 212(a)(1)(A)(ii) of the Act.

(L) Exceptions for Orphans . On November 12, 1997, the President signed into law Pub. L. 105-73. This bill amended section 212(a)(1)(A)(ii) of the Act by creating section 212(a)(1)(A)(ii)(C) to provide exceptions to the vaccination requirements for internationally adopted children 10 years of age or younger. This exception covers children 10 years of age or younger classified as orphans under section 101(b)(1)(F) who are applying for immigrant visas as immediate relatives under section 201(b) of the Act (IR-3 and-4 visas). In order f or the child to benefit from the exception, the adopting parent(s) must sign an affidavit prior to visa issuance. The adopting parent(s) must affirm that the child will receive the required vaccination within 30 days of admission to the United States or at the earliest time that it is medically appropriate. However, noncompliance with the vaccination requirements following the child's admission to the United States is not a ground for removal under section 237 of the Act.

DOS has developed a standard affidavit form to ensure that adopting parents are aware of the possibility of an exception from the vaccination requirements provided under section 212(a)(1)(A)(ii)(C) of the Act, and of their obligation to ensure that the child is vaccinated following admission. The affidavit must be made under oath or affirmation in the presence of either the consular officer or a notary public, and the completed form must be included with Form OF 157.

When the adoptive or prospective adoptive parent cannot sign the affidavit in good faith because of religious or moral objections to vaccinations, the child will require a waiver under section 212(g)(2)(C) of the Act. The requirements for this waiver are described in Chapter 41.3(b) of this field manual.

Labels: , , , , , ,