Visas: Special Immigrant Visas-U.S. Government Employee Special Immigrant Visas for Service Abroad, 36323-36327 [2020-12344]
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Federal Register / Vol. 85, No. 116 / Tuesday, June 16, 2020 / Rules and Regulations
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By the Commission.
Issued: May 8, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2020–12945 Filed 6–15–20; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF STATE
22 CFR Part 42.34
[Public Notice: 11104]
RIN 1400–AE77
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Visas: Special Immigrant Visas—U.S.
Government Employee Special
Immigrant Visas for Service Abroad
Department of State.
Final rule.
AGENCY:
ACTION:
The Immigration and
Nationality Act provides for the granting
of special immigrant status for certain
SUMMARY:
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aliens who have been employed by, and
performed faithful service for, the U.S.
government abroad for at least fifteen
years. This rule codifies in regulation
the eligibility criteria for special
immigrant status of such aliens and the
application process for applicants.
DATES: This rule is effective December
16, 2020.
FOR FURTHER INFORMATION CONTACT:
Taylor Beaumont, Acting Chief,
Legislation and Regulations Division,
Visa Services, Bureau of Consular
Affairs, Department of State, VisaRegs@
state.gov.
SUPPLEMENTARY INFORMATION:
What is the effect of this regulation?
Section 101(a)(27)(D) of the
Immigration and Nationality Act (INA),
8 U.S.C. 1101(a)(27)(D), authorizes the
granting of special immigrant status in
exceptional circumstances for
employees, or honorably retired former
employees, of the U.S. government
abroad, or of the American Institute in
Taiwan, who have performed faithful
service for a total of fifteen years or
more, in addition to their accompanying
spouse and children. For special
immigration status to be granted, this
provision requires that the principal
officer of a Foreign Service
establishment recommend granting of
special immigrant status in an exercise
of discretion to aliens in exceptional
circumstances. The statute provides that
the Secretary of State may choose to
approve such a recommendation after
finding that it is in the national interest
to grant such status, for the status to be
conferred. Upon notification that the
Secretary of State, or designee, has
approved a recommendation and found
that granting special immigrant status is
in the national interest, the applicant
must submit a completed Form DS–
1884, Petition to Classify Special
Immigrant Under INA 203(b)(4) as an
Employee or Former Employee of the
U.S. Government Abroad, to the
Department of State (‘‘Department’’)
within one year. Once the DS–1884 is
submitted and approved, the employee
must submit an immigrant visa
application, which a consular officer
adjudicates in accordance with relevant
provisions in the INA. If the consular
officer approves the visa application
and issues the visa, the applicant then
has six months to immigrate to the
United States. To avoid potential
confusion, the Department emphasizes
that this regulation affects only the
granting of special immigrant status to
long term employees of the U.S.
government abroad under INA section
101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D);
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this regulation does not affect the
granting of special immigrant status
under any of the authorities for special
immigrant status, including any of the
other provisions in INA section
101(a)(27), 8 U.S.C. 1101(a)(27), or those
specific to nationals of Iraq and
Afghanistan.
This rule codifies the circumstances
that will be considered ‘‘exceptional’’
for purposes of assessing special
immigrant status qualification. The
scope of ‘‘exceptional circumstances’’
set out in this rule departs, in certain
respects, from the Department’s policies
that preceded this rule, which were
articulated only in the Foreign Affairs
Manual (FAM), specifically 9 FAM
502.5–3(C)(2)(d), not in the CFR.
Specifically, the excluded criteria,
formerly in 9 FAM 502.5–
3(C)(2)(d)(3)(c)(ii)–(vi), that will no
longer constitute exceptional
circumstances, are: Recognition with
multiple individual awards; high
visibility in a sensitive position; control
over key aspects of the operations or
overall functioning of a Foreign Service
post; valuable services and assistance to
the U.S. community at post apart from
performance of official duties; and
faithful service in a country foreign to
the employee that resulted in the
employee losing economic and social
ties to his or her home country. The
regulation also adds two new criteria
that will constitute exceptional
circumstances moving forward,
specifically: Recognition with a
‘‘Foreign Service National of the Year’’
award; and disclosure of waste, fraud,
abuse, or other issues that result in
significant action against an offending
party. The FAM will be revised in
accordance with this rule on the
effective date of this rule.
The rule also makes several technical
and organizational edits to 22 CFR
42.32. This rule moves relevant portions
of 22 CFR 42.32(d)(2) on special
immigrant status (specific to INA
section 101(a)(27)(D), 8 U.S.C.
1101(a)(27)(d)) into a new section, 22
CFR 42.34; and 22 CFR 42.32(d)(2) is
amended to include a cross reference to
22 CFR 42.34. The new 22 CFR 42.34
expands upon the application process
and the qualifications for special
immigrant status, and more clearly
organizes these topics.
This rule also eliminates 22 CFR
42.32(d)(2)(ii), Special immigrant status
for certain aliens employed at the
United States mission in Hong Kong,
because the window to apply for special
immigrant status under this section
closed on January 1, 2002. The
remaining provisions of 22 CFR
42.32(d)(2), including 22 CFR
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42.32(d)(2)(i) and 22 CFR
42.32(d)(2)(iii)–(vi), are revised and
moved to 22 CFR 42.34 and
consolidated with current guidance
drawn from 9 FAM 502.5–3. Sections
42.32(d)(2)(i)(A) and (C) are moved to
section 42.34(b), and the Department
has revised the description of
accompanying or following-to-join
spouses and children to more precisely
align with INA section 203(d), 8 U.S.C.
1153(d). The description of followingto-join spouses and children that is
being superseded by this rule had stated
they were ‘‘entitled to a derivative status
corresponding to the classification and
priority date of the beneficiary of the
petition.’’ This language has been
amended to remove reference to
‘‘derivative status’’ to more accurately
reflect INA section 203(d), 8 U.S.C.
1153(d), which states that such spouses
and children if not otherwise entitled to
an immigrant status and the immediate
issuance of a visa, are entitled to the
same classification and priority date of
the beneficiary of the petition. Text
formerly in section 42.32(d)(2)(i)(B) is
now consolidated with the definition of
‘‘qualifying full-time service’’ in section
42.34(c)(1).
In the definitions section, the rule
clarifies what is meant by fulfilling 15
years of qualifying full-time service,
explaining that it can be achieved in a
number of ways. For example, working
full-time for 10 years and half-time for
at least 10 more would qualify the
employee for consideration.
The rule also codifies a definition of
‘‘faithful service,’’ which is a statutory
requirement for special immigrant status
under INA section 101(a)(27)(D), 8
U.S.C. 1101(a)(27)(D). This definition
reflects longstanding Department
practice and guidance on what
constitutes ‘‘faithful service,’’ and the
responsibility of the principal officer to
determine that the alien’s service has
been faithful. Department guidance that
preceded this rule, and will continue,
instructs principal officers at foreign
service post to consider employees’
disciplinary records and other similar
factors in making this assessment.
The Department has also incorporated
into the regulation, with some changes,
guidance at 9 FAM 502.5–
3(C)(2)(d)(3)(a)(iii) since March 27,
2019, explaining that ‘‘exceptional
circumstances’’ includes situations
where the United States and the host
country have strained relations and the
employee may be subjected to
persecution or pressure to divulge
information. Because the term
‘‘persecution,’’ as defined in certain
other U.S. legal contexts, does not
accurately reflect the Department’s
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policy relative to finding exceptional
circumstances for this special immigrant
status, the regulation adopts a standard
of ‘‘retribution,’’ to more accurately
reflect the Department’s policy and
practice in this area. The Department
does not anticipate this change in
terminology will affect the application
of this exceptional circumstance
provision, because the Department, for
the purposes of this provision, has
historically considered conduct to be
‘‘persecution’’ within the meaning of the
FAM guidance, as amended, despite not
necessarily meeting the elements of
‘‘persecution’’ as defined in other
contexts, such as in the asylum context,
and as informed by the Board of
Immigration Appeals and opinions by
the Attorney General. Since the
inception of this program, as a matter of
policy, the Department has viewed 20 or
more years of faithful service as prima
facie evidence of ‘‘exceptional
circumstances,’’ because the employee
has devoted such a large portion of his
or her career to the U.S. government.
This rule retains that understanding.
Section 42.32(d)(2)(iii) is now
§ 42.34(b)(2). The last sentence from 22
CFR 42.32(d)(2)(iv), stating ‘‘In cases
described in § 42.33(d)(2)(ii), the
validity of the petition shall not in any
case extend beyond January 1, 2002’’ is
not included in this rule, because it no
longer applies.
This rule makes technical, but nonsubstantive changes to the text
previously in § 42.32(d)(2)(v), and now
in § 42.32(b)(5). First, the rule adds ‘‘or
designee’s’’ after ‘‘Secretary of State,’’
and removes the ‘‘’s’’ after ‘‘Secretary of
State.’’ This rule also re-phrases the
former reference to the Secretary of
State’s ‘‘approval of special immigrant
status’’ to ‘‘approval of the principal
officer’s recommendation’’ for
consistency with other references in this
rule. Additional reorganization includes
moving § 42.32(d)(2)(iv) to § 42.34(b)(4);
§ 42.32(d)(2)(vi) to § 42.34(b)(1); and
§ 42.32(d)(2)(vii) to § 42.34(b)(3).
What law or directive authorizes the
rulemaking?
Pursuant to INA section 104(a), 8
U.S.C. 1104(a), the Secretary of State
may establish regulations necessary for
the administration of the INA. INA
section 101(a)(27)(D), 8 U.S.C.
1101(a)(27)(D), provides for the granting
of special immigrant status in
exceptional circumstances to
immigrants who are employees, or
honorably retired former employees, of
the U.S. government abroad, or of the
American Institute in Taiwan, and who
have performed faithful service for at
least 15 years, as well as their
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accompanying spouse and children.
Further, INA section 101(a)(27)(D), 8
U.S.C. 1101(a)(27)(D), provides that the
Secretary of State must approve each
recommendation and find that it is in
the national interest to grant special
immigrant status. INA section 203(b)(4),
8 U.S.C. 1153(b)(4), allocates visas to be
made available to qualified special
immigrants each fiscal year.
What problem does the rulemaking
address, and how does this rulemaking
address it?
Until now, Department regulations
have not addressed the criteria used by
the Department in implementing
statutory eligibility standards for special
immigrant status. Certain criteria that
were included in Volume 9 of the FAM
were subjective or otherwise led to
inconsistency in recommendations
submitted by different overseas posts.
This likely resulted in uncertainty for
special immigrant status applicants and,
potentially, inconsistent results for
similarly situated applicants. The
Department is revising the eligibility
criteria to exclude the most subjective of
criteria and adding new objective bases
for establishing exceptional
circumstances. The Department aims to
promote consistency in adjudications of
applications for special immigrant
status. Codifying these objective criteria
is intended to increase the likelihood
that similar service is rewarded
similarly around the world and increase
the fairness and integrity of the special
immigrant status process through more
consistent application of the law. These
transparent standards will aid the U.S.
government abroad in recruiting and
retaining loyal and committed foreign
nationals.
How will the Department implement
this rule?
There is a six-month delay in the
effective date of this rule for the
Department to continue the orderly
adjudication of cases that are ready or
nearly ready for consideration by the
principal officer or the Secretary, or
designee. The new standards will apply
to all recommendations from the
principal officer of a Foreign Service
establishment submitted to the
Department for consideration by the
Secretary of State, or designee, on or
after the effective date. The Department
considers a recommendation to be
submitted when the Department has
received the principal officer’s
recommendation through the proper
submission methods from post. This
rulemaking provides prospective
applicants seeking to qualify under INA
section 101(a)(27)(D), 8 U.S.C.
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1101(a)(27)(D), for special immigrant
status notice regarding the Department’s
implementation of the program.
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Regulatory Findings
Administrative Procedure Act
This rule relates to a foreign affairs
function, and consequently, in
accordance with 5 U.S.C. 553(a)(1), it is
not subject to the notice-and-comment
rule making procedures set forth in 5
U.S.C. 553. This rule affects the U.S.
government’s ability to recruit and
retain locally employed staff for its
overseas missions. It also clearly and
directly impacts foreign affairs functions
of the United States and ‘‘implicat[es]
matters of diplomacy directly.’’ City of
N.Y. v. Permanent Mission of India to
the U.N., 618 F.3d 172, 202 (2d Cir.
2010).
This rule involves the Secretary of
State’s authority to determine that it is
in the national interest to grant special
immigrant status to a current or former
employee of the U.S. government, a
determination that involves a wide
range of foreign affairs considerations
and functions, including the U.S.
government’s bilateral relationship with
the host country, the impact on the U.S.
government’s ability to recruit qualified
personnel in the country, and the
impact of special immigrant status
availability on the willingness of foreign
nationals to become, and remain as,
employees of the U.S. government.
Special immigrant status eligibility is
critical for the U.S. government to
recruit and retain loyal, valuable local
staff outside the United States, without
which the Department could not
efficiently function overseas. The
Department alone employs
approximately 50,000 local staff at over
200 Foreign Service posts overseas,
excluding local staff employed on behalf
of all the other U.S. government
agencies operating overseas, for which
we lack data.1 Because special
immigrant status is only available to
locally employed staff with at least
fifteen years of faithful service, and
under exceptional circumstances,
potential eligibility encourages
employees to remain in their jobs and to
provide long-term, institutional memory
to U.S. government agencies abroad.
This is particularly essential in
countries where local staff members face
retribution by the host government,
making it even more challenging to
recruit and retain a locally employed
workforce. The potential for locally
1 Corey R Gill, U.S. Department of State
Personnel: Background and Selected Issues for
Congress, Congressional Research Service, 15 (May
18, 2018).
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employed staff to obtain special
immigrant status for their spouses and
children, in particular, is central to the
U.S. government’s ability to recruit and
retain loyal and committed foreign
nationals to support U.S. missions
overseas. Consequently, the approval of
recommendations for special immigrant
status, and the promulgation of
standards for such approval under the
Secretary of State’s authority in INA
section 101(a)(27)(D), 8 U.S.C.
1101(a)(27)(D), involve foreign affairs
functions of the Department of State.
Regulatory Flexibility Act/Executive
Order 13272: Small Business
Because this rule is exempt from
notice and comment rulemaking under
5 U.S.C. 553, it is exempt from the
regulatory flexibility analysis
requirements set forth by the Regulatory
Flexibility Act (5 U.S.C. 603 and 604).
Nonetheless, consistent with the
Regulatory Flexibility Act (5 U.S.C.
605(b)), the Department certifies that
this rule will not have a significant
economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1532, generally requires agencies to
prepare a statement before proposing
any rule that may result in an annual
expenditure of $100 million or more by
State, local, or tribal governments, or by
the private sector. This rule will not
result in any such expenditure, nor will
it significantly or uniquely affect small
governments.
Congressional Review Act
The Office of Information and
Regulatory Affairs has determined that
this rule is not a major rule as defined
by 5 U.S.C. 804(2).
Executive Order 12866, 13563, and
13771
The Office of Information and
Regulatory Affairs has determined that
this is a significant regulatory action
under Executive Order 12866 and has
reviewed this document. The
Department has also reviewed this
rulemaking to ensure its consistency
with the regulatory philosophy and
principles set forth in Executive Order
12866. The Department has also
considered this rule in light of
Executive Order 13563 and affirms that
this regulation is consistent with the
guidance therein. This regulation is de
minimis under Executive Order 13771.
This regulation is being promulgated
to avoid unfair variation in the
administration of the special immigrant
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36325
status program and to ensure consistent
application of certain provisions of
immigration law to principal officer
recommendations for special immigrant
status at U.S. foreign missions around
the world. The Department estimates
that approximately 60 recommendations
from a principal officer per year may be
initially impacted by this rule, because
an employee’s qualifications will not
demonstrate the requisite exceptional
circumstances to qualify for special
immigrant status due to the changes in
standards implemented through this
rule. The Department is unable to
reliably estimate the number of
dependents who may also be restricted
in their ability to qualify for derivative
status until their spouse or parent is
recommended by a principal officer
under this new rule. Assuming an
average of 2 derivatives per principal
applicant, the rule could affect
approximately 180 people worldwide
per year. The Department derived the
estimate of affected principal officer
recommendations from recent data
regarding applicants who previously
qualified for this program under the
exceptional circumstances that are being
removed or changed under this rule.2
The majority of the affected principal
officer recommendations related to
employee qualifications each year are
likely to be delayed rather than
permanently eliminated, as there are
several other circumstances through
which employees may receive principal
officer recommendations and qualify for
special immigrant status in the future.
For example, some principal officer
recommendations for applicants with at
least 15 years of service, but less than
20 years of service, could previously
qualify under the grounds of receiving
at least two individual honor awards.
This rule eliminates this category of
exceptional circumstance. However,
these same principal officer
recommendations may still qualify
under a separate exceptional
circumstance in the future by reaching
20 years of service. As a result, while an
2 Specifically, the Department analyzed a sample
of cases reviewed from June 2018 to March 2019.
Of the 508 principal officer recommendations
reviewed during that 10-month period, 50 qualified
for this program solely based on the categories of
exceptional circumstances that are being removed
or changed. The volume of applications reviewed
during this period was consistent with historical
precedent. Based on this sample, the Department
estimates that approximately five potential
principal officer recommendations per month, or 60
per year, will not be eligible for special immigrant
status but may have been eligible under the
previous eligibility criteria. However, the
Department has no way to anticipate the number of
aliens who might qualify in the future under the
new categories of exceptional circumstances created
in this regulation.
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estimated 60 recommendations from
principal officers regarding the
qualification of applicants may be
affected, the Department does not
expect that a significant number of
principal officer recommendations will
be permanently affected.
The Department notes that there is a
possibility that this rule may make it
more difficult to hire foreign workers;
however, as this program will remain
intact and the effect is more likely to
delay rather than eliminate eligibility,
the Department expects this impact to
be minimal. The Department will incur
de minimis administrative costs to
provide clear guidance and messaging
regarding this change to all posts and to
locally employed staff that may be
impacted by the rule. While some
locally employed staff may believe a
principal officer would likely
recommend them for special immigrant
status on bases eliminated by this rule,
there are several other categories, as
discussed above, through which they
may qualify in the future.
Executive Orders 12372 and 13132:
Federalism
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. The rule will not
have federalism implications warranting
the application of Executive Orders
12372 and 13132.
Executive Order 12988: Civil Justice
Reform
The Department has reviewed the
regulation in light of sections 3(a) and
3(b)(2) of Executive Order 12988 to
eliminate ambiguity, minimize
litigation, establish clear legal
standards, and reduce burden.
List of Subjects in 22 CFR Part 42
Aliens, Immigration, Passports and
Visas.
Accordingly, for the reasons set forth
in the preamble, the Department of State
amends 22 CFR part 42 as follows:
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Executive Order 13175
The Department has determined that
this rulemaking will not have tribal
implications, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
pre-empt tribal law. Accordingly, the
requirements of section 5 of Executive
Order 13175 do not apply to this
rulemaking.
Paperwork Reduction Act
Special immigrant status applicants
complete the DS–1884 (OMB Control
Number 1405–0082) and the DS–260
(OMB Control Number 1405–0185) after
the Secretary, or designee, approves the
recommendation from the principal
officer. This rule has no effect on the
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DS–1884 or the cost burdens for
individual applicants completing these
forms. Rather, this rule applies to the
adjudication standards applied
internally by the Department’s
personnel. The Department believes this
rule may initially reduce the overall
number of DS–1884, Petition to Classify
Special Immigrant Under INA 203(b)(4),
by approximately 60 per year due to a
decrease either in the number of
principal officer recommendations
submitted to the Department or the
number of recommendations approved
by the Secretary, or his designee.
However, many of the affected
applicants will likely eventually qualify
and file both the form DS–1884 and DS–
260. Because this rule is likely to delay,
rather than prevent, most affected
applicants from completing these forms,
the Department does not believe that
this proposal will affect the burden of
these forms.
The Department estimates a related
reduction in the overall number of
immigrant visa applications on form
DS–260 by approximately 180 per year,
based on the past average of
approximately two derivative family
members per applicant for this
applicant pool. The Department is
unable to reliably estimate the number
of dependents of affected applicants for
special immigrant status who will not
file a DS–260, if the principal
subsequently is approved for SIV status,
because, e.g., they will age out of
dependent eligibility or they will be
unable or unwilling to wait.
PART 42 VISAS: DOCUMENTATION OF
IMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY
ACT, AS AMENDED
1. The authority citation for part 42
continues to read as follows:
■
Authority: 8 U.S.C. 1104 and 1182; Pub.
L. 105–277, 112 Stat. 2681; Pub. L. 108–449,
118 Stat. 3469; The Convention on Protection
of Children and Co-operation in Respect of
Intercountry Adoption (done at the Hague,
May 29, 1993), S. Treaty Doc. 105–51 (1998),
1870 U.N.T.S. 167 (Reg. No. 31922 (1993));
42 U.S.C. 14901–14954 (Pub. L. 106–279, 114
Stat. 825); 8 U.S.C. 1101 (Pub. L. 111–287,
124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109–
162, 119 Stat. 2960); 8 U.S.C. 1201 (Pub. L.
114–70, 129 Stat. 561).
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Subpart D—Immigrants Subject to
Numerical Limitations
2. In § 42.32, revise paragraph (d)(2) to
read as follows:
■
§ 42.32 Employment-based preference
immigrants.
*
*
*
*
*
(d) * * *
(2) See 22 CFR 42.34.
*
*
*
*
*
■ 3. Add § 42.34 to read as follows:
§ 42.34 Special immigrant visas—certain
U.S. Government employees.
(a) General. (1) An alien is classifiable
under INA 203(b)(4) as a special
immigrant described in INA
101(a)(27)(D) provided:
(i) The alien has performed faithful
service to the United States Government
abroad, or of the American Institute in
Taiwan, for a total of fifteen years, or
more;
(ii) The principal officer of a Foreign
Service establishment (or, in the case of
the American Institute in Taiwan, the
Director), recommends granting special
immigrant status to such alien in
exceptional circumstances;
(iii) The Secretary of State, or
designee, approves such
recommendation and finds that it is in
the national interest to grant such status.
(b) Petition requirement. An alien
who seeks classification as a special
immigrant under INA 203(b)(4) based on
service as an employee to the U.S.
government abroad or American
Institute in Taiwan must file a Form
DS–1884, Petition to Classify Special
Immigrant under INA 203(b)(4) as an
Employee or Former Employee of the
U.S. Government Abroad, with the
Department of State. An alien may file
such a petition only after, but within
one year of, notification from the
Department that the Secretary of State or
designee has approved a
recommendation from the principal
officer that special immigrant status be
accorded the alien in exceptional
circumstances, and has found it in the
national interest to do so.
(1) Petition fees. The Secretary of
State shall establish a fee for the filing
of a petition to accord status under INA
203(b)(4) which shall be collected
following notification that the Secretary
of State, or designee, has approved the
recommendation that the alien be
granted status as a special immigrant
under INA 101(a)(27)(D).
(2) Establishing priority date. The
priority date of an alien seeking status
under INA 203(b)(4) as a special
immigrant described in 101(a)(27)(D)
shall be the date on which the petition
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to accord such classification, the DS–
1884, is filed. The filing date of the
petition is the date on which a properly
completed form and the required fee are
accepted by a Foreign Service post.
Pursuant to INA 203(d), and whether or
not named in the petition, the spouse or
child of an alien classified under INA
203(b)(4), if not otherwise entitled to an
immigrant status and the immediate
issuance of a visa, is entitled to the
classification and priority date of the
beneficiary of the petition.
(3) Delegation of authority to approve
petitions. The authority to approve
petitions to accord status under INA
203(b)(4) to an alien described in INA
101(a)(27)(D) is hereby delegated to the
chief consular officer at the post of
recommendation or, in the absence of
the consular officer, to any alternate
approving officer designated by the
principal officer. Such authority may
not be exercised until the Foreign
Service post has received formal
notification of the Secretary of State or
designee’s approval of special
immigrant status for the petitioning
alien.
(4) Petition validity. Except as noted
in this paragraph, the validity of a
petition approved for classification
under INA 203(b)(4) shall be six months
beyond the date of the Secretary of
State’s approval thereof or the
availability of a visa number, whichever
is later.
(5) Extension of special immigrant
status and petition validity. If the
principal officer of a post concludes that
circumstances in a particular case are
such that an extension of validity of the
Secretary of State or designee’s approval
of the principal officer’s
recommendation or of the petition
would be in the national interest, the
principal officer shall recommend to the
Secretary of State or designee that such
validity be extended for not more than
one additional year.
(c) Definitions—(1) Full-time service.
An alien must have been employed for
a total of at least 15 full-time years, or
the equivalent thereof, in the service of
the U.S. government abroad. The
number of hours per week that qualify
an employee as full-time is dependent
on local law and prevailing practice in
the country where the alien is or was
employed, as reflected in the
employment documentation submitted
with the application for special
immigrant status. An alien may qualify
as a special immigrant under INA
101(a)(27)(D) on the basis of
employment abroad with one or more
than one agency of the U.S. government
provided the total amount of full-time
VerDate Sep<11>2014
17:22 Jun 15, 2020
Jkt 250001
service with the U.S. government is 15
years or more, or the equivalent thereof.
(2) Faithful service. An alien must
have performed faithfully in the
position held. The principal officer has
the primary responsibility for
determining whether the alien’s service
meets this requirement. A record of
disciplinary actions that have been
taken against the alien does not
automatically disqualify the alien. The
principal officer must assess the
disciplinary action in light of the extent
and gravity of the misconduct and when
it occurred and determine whether the
record as a whole, notwithstanding
disciplinary actions, is one of faithful
service.
(3) Continuity. The alien’s period of
service need not have been continuous.
(4) Abroad. The service must have
occurred anywhere outside the United
States, as the term ‘‘United States’’ is
defined in INA 101(a)(38).
(5) Employment at the American
Institute in Taiwan. INA 101(a)(27)(D)
permits both present and former
employees of the American Institute in
Taiwan to apply for special immigrant
status. An alien’s service before and
after the founding of the American
Institute in Taiwan is counted toward
the minimum 15 years of service
requirement.
(6) Honorably retired. Separations
within the meaning of ‘‘honorably
retired’’ include, for example, those
resulting from mandatory or voluntary
retirement, reduction-in-force, or
resignation for personal reasons.
Separations not within the meaning of
‘‘honorably retired’’ would include a
termination for cause or an involuntary
termination or resignation in lieu of a
termination for cause.
(7) Definition of exceptional
circumstances. The principal officer
must determine that an alien
demonstrates at least one form of
‘‘exceptional circumstances’’ to support
an application for special immigrant
status.
(i) Prima facie indicators of
exceptional circumstances. In the
following situations an alien’s service
with the U.S. government generally will
be deemed to have met exceptional
circumstances.
(A) Diplomatic relations between the
alien’s country of nationality and the
United States have been severed;
(B) Diplomatic relations between the
country in which the alien was
employed and the United States have
been severed;
(C) The country in which the alien
was employed and the United States
have strained relations and the
employee may be subjected to
PO 00000
Frm 00021
Fmt 4700
Sfmt 9990
36327
retribution by the local, State, Federal,
or other official government body
merely because of association with the
U.S. government, or the alien may be
pressured to divulge information
contrary to U.S. national interests; or
(D) The alien was hired as an
employee at the Consulate General at
Hong Kong on or before July 1, 1999.
(ii) Strong indicators of exceptional
circumstances. (A) It is believed that
continued service to the U.S.
government might endanger the life of
the alien;
(B) The alien has, fulfilled
responsibilities or given service in a
manner that approaches the heroic;
(C) The alien has been awarded a
global or a regional ‘‘Foreign Service
National of the Year’’ Award;
(D) The alien has disclosed waste,
fraud or abuse, a substantial and
specific danger to public health or
safety, or a violation of law, rule, or
regulation within the Department or
other U.S. government agency, if such
disclosure results in significant action
by the Department or other U.S.
government agency against an offending
party, such as termination or severance
of a contractual relationship, or criminal
charges against any person or entity;
(E) The employee has served the U.S.
government for a period of twenty years
or more.
(8) Immediate intent to immigrate. (i)
The recommendation of the principal
officer must certify that the employee
being recommended is prepared to
pursue an immigrant visa application
within one year of the Department’s
notification to the post of approval of
special immigrant status and, if the
employee is not honorably retired, that
the employee intends permanent
separation from U.S. government
employment abroad no later than the
date of departure for the United States
following issuance of an immigrant visa.
(ii) Employees of Hong Kong
Consulate General hired on or before
July 1, 1999, are not required to
establish immediate intent to immigrate.
Employees of the Hong Kong Consulate
General who received or were approved
for special immigrant status before July
1, 1999, also may continue employment
with the U.S. government.
Carl C. Risch,
Assistant Secretary for Consular Affairs, U.S.
Department of State.
[FR Doc. 2020–12344 Filed 6–15–20; 8:45 am]
BILLING CODE 4710–06–P
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Agencies
[Federal Register Volume 85, Number 116 (Tuesday, June 16, 2020)]
[Rules and Regulations]
[Pages 36323-36327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12344]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Part 42.34
[Public Notice: 11104]
RIN 1400-AE77
Visas: Special Immigrant Visas--U.S. Government Employee Special
Immigrant Visas for Service Abroad
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Immigration and Nationality Act provides for the granting
of special immigrant status for certain aliens who have been employed
by, and performed faithful service for, the U.S. government abroad for
at least fifteen years. This rule codifies in regulation the
eligibility criteria for special immigrant status of such aliens and
the application process for applicants.
DATES: This rule is effective December 16, 2020.
FOR FURTHER INFORMATION CONTACT: Taylor Beaumont, Acting Chief,
Legislation and Regulations Division, Visa Services, Bureau of Consular
Affairs, Department of State, [email protected].
SUPPLEMENTARY INFORMATION:
What is the effect of this regulation?
Section 101(a)(27)(D) of the Immigration and Nationality Act (INA),
8 U.S.C. 1101(a)(27)(D), authorizes the granting of special immigrant
status in exceptional circumstances for employees, or honorably retired
former employees, of the U.S. government abroad, or of the American
Institute in Taiwan, who have performed faithful service for a total of
fifteen years or more, in addition to their accompanying spouse and
children. For special immigration status to be granted, this provision
requires that the principal officer of a Foreign Service establishment
recommend granting of special immigrant status in an exercise of
discretion to aliens in exceptional circumstances. The statute provides
that the Secretary of State may choose to approve such a recommendation
after finding that it is in the national interest to grant such status,
for the status to be conferred. Upon notification that the Secretary of
State, or designee, has approved a recommendation and found that
granting special immigrant status is in the national interest, the
applicant must submit a completed Form DS-1884, Petition to Classify
Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee
of the U.S. Government Abroad, to the Department of State
(``Department'') within one year. Once the DS-1884 is submitted and
approved, the employee must submit an immigrant visa application, which
a consular officer adjudicates in accordance with relevant provisions
in the INA. If the consular officer approves the visa application and
issues the visa, the applicant then has six months to immigrate to the
United States. To avoid potential confusion, the Department emphasizes
that this regulation affects only the granting of special immigrant
status to long term employees of the U.S. government abroad under INA
section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D); this regulation does
not affect the granting of special immigrant status under any of the
authorities for special immigrant status, including any of the other
provisions in INA section 101(a)(27), 8 U.S.C. 1101(a)(27), or those
specific to nationals of Iraq and Afghanistan.
This rule codifies the circumstances that will be considered
``exceptional'' for purposes of assessing special immigrant status
qualification. The scope of ``exceptional circumstances'' set out in
this rule departs, in certain respects, from the Department's policies
that preceded this rule, which were articulated only in the Foreign
Affairs Manual (FAM), specifically 9 FAM 502.5-3(C)(2)(d), not in the
CFR. Specifically, the excluded criteria, formerly in 9 FAM 502.5-
3(C)(2)(d)(3)(c)(ii)-(vi), that will no longer constitute exceptional
circumstances, are: Recognition with multiple individual awards; high
visibility in a sensitive position; control over key aspects of the
operations or overall functioning of a Foreign Service post; valuable
services and assistance to the U.S. community at post apart from
performance of official duties; and faithful service in a country
foreign to the employee that resulted in the employee losing economic
and social ties to his or her home country. The regulation also adds
two new criteria that will constitute exceptional circumstances moving
forward, specifically: Recognition with a ``Foreign Service National of
the Year'' award; and disclosure of waste, fraud, abuse, or other
issues that result in significant action against an offending party.
The FAM will be revised in accordance with this rule on the effective
date of this rule.
The rule also makes several technical and organizational edits to
22 CFR 42.32. This rule moves relevant portions of 22 CFR 42.32(d)(2)
on special immigrant status (specific to INA section 101(a)(27)(D), 8
U.S.C. 1101(a)(27)(d)) into a new section, 22 CFR 42.34; and 22 CFR
42.32(d)(2) is amended to include a cross reference to 22 CFR 42.34.
The new 22 CFR 42.34 expands upon the application process and the
qualifications for special immigrant status, and more clearly organizes
these topics.
This rule also eliminates 22 CFR 42.32(d)(2)(ii), Special immigrant
status for certain aliens employed at the United States mission in Hong
Kong, because the window to apply for special immigrant status under
this section closed on January 1, 2002. The remaining provisions of 22
CFR 42.32(d)(2), including 22 CFR
[[Page 36324]]
42.32(d)(2)(i) and 22 CFR 42.32(d)(2)(iii)-(vi), are revised and moved
to 22 CFR 42.34 and consolidated with current guidance drawn from 9 FAM
502.5-3. Sections 42.32(d)(2)(i)(A) and (C) are moved to section
42.34(b), and the Department has revised the description of
accompanying or following-to-join spouses and children to more
precisely align with INA section 203(d), 8 U.S.C. 1153(d). The
description of following-to-join spouses and children that is being
superseded by this rule had stated they were ``entitled to a derivative
status corresponding to the classification and priority date of the
beneficiary of the petition.'' This language has been amended to remove
reference to ``derivative status'' to more accurately reflect INA
section 203(d), 8 U.S.C. 1153(d), which states that such spouses and
children if not otherwise entitled to an immigrant status and the
immediate issuance of a visa, are entitled to the same classification
and priority date of the beneficiary of the petition. Text formerly in
section 42.32(d)(2)(i)(B) is now consolidated with the definition of
``qualifying full-time service'' in section 42.34(c)(1).
In the definitions section, the rule clarifies what is meant by
fulfilling 15 years of qualifying full-time service, explaining that it
can be achieved in a number of ways. For example, working full-time for
10 years and half-time for at least 10 more would qualify the employee
for consideration.
The rule also codifies a definition of ``faithful service,'' which
is a statutory requirement for special immigrant status under INA
section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D). This definition
reflects longstanding Department practice and guidance on what
constitutes ``faithful service,'' and the responsibility of the
principal officer to determine that the alien's service has been
faithful. Department guidance that preceded this rule, and will
continue, instructs principal officers at foreign service post to
consider employees' disciplinary records and other similar factors in
making this assessment.
The Department has also incorporated into the regulation, with some
changes, guidance at 9 FAM 502.5-3(C)(2)(d)(3)(a)(iii) since March 27,
2019, explaining that ``exceptional circumstances'' includes situations
where the United States and the host country have strained relations
and the employee may be subjected to persecution or pressure to divulge
information. Because the term ``persecution,'' as defined in certain
other U.S. legal contexts, does not accurately reflect the Department's
policy relative to finding exceptional circumstances for this special
immigrant status, the regulation adopts a standard of ``retribution,''
to more accurately reflect the Department's policy and practice in this
area. The Department does not anticipate this change in terminology
will affect the application of this exceptional circumstance provision,
because the Department, for the purposes of this provision, has
historically considered conduct to be ``persecution'' within the
meaning of the FAM guidance, as amended, despite not necessarily
meeting the elements of ``persecution'' as defined in other contexts,
such as in the asylum context, and as informed by the Board of
Immigration Appeals and opinions by the Attorney General. Since the
inception of this program, as a matter of policy, the Department has
viewed 20 or more years of faithful service as prima facie evidence of
``exceptional circumstances,'' because the employee has devoted such a
large portion of his or her career to the U.S. government. This rule
retains that understanding.
Section 42.32(d)(2)(iii) is now Sec. 42.34(b)(2). The last
sentence from 22 CFR 42.32(d)(2)(iv), stating ``In cases described in
Sec. 42.33(d)(2)(ii), the validity of the petition shall not in any
case extend beyond January 1, 2002'' is not included in this rule,
because it no longer applies.
This rule makes technical, but non-substantive changes to the text
previously in Sec. 42.32(d)(2)(v), and now in Sec. 42.32(b)(5).
First, the rule adds ``or designee's'' after ``Secretary of State,''
and removes the ``'s'' after ``Secretary of State.'' This rule also re-
phrases the former reference to the Secretary of State's ``approval of
special immigrant status'' to ``approval of the principal officer's
recommendation'' for consistency with other references in this rule.
Additional reorganization includes moving Sec. 42.32(d)(2)(iv) to
Sec. 42.34(b)(4); Sec. 42.32(d)(2)(vi) to Sec. 42.34(b)(1); and
Sec. 42.32(d)(2)(vii) to Sec. 42.34(b)(3).
What law or directive authorizes the rulemaking?
Pursuant to INA section 104(a), 8 U.S.C. 1104(a), the Secretary of
State may establish regulations necessary for the administration of the
INA. INA section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D), provides for
the granting of special immigrant status in exceptional circumstances
to immigrants who are employees, or honorably retired former employees,
of the U.S. government abroad, or of the American Institute in Taiwan,
and who have performed faithful service for at least 15 years, as well
as their accompanying spouse and children. Further, INA section
101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D), provides that the Secretary of
State must approve each recommendation and find that it is in the
national interest to grant special immigrant status. INA section
203(b)(4), 8 U.S.C. 1153(b)(4), allocates visas to be made available to
qualified special immigrants each fiscal year.
What problem does the rulemaking address, and how does this rulemaking
address it?
Until now, Department regulations have not addressed the criteria
used by the Department in implementing statutory eligibility standards
for special immigrant status. Certain criteria that were included in
Volume 9 of the FAM were subjective or otherwise led to inconsistency
in recommendations submitted by different overseas posts. This likely
resulted in uncertainty for special immigrant status applicants and,
potentially, inconsistent results for similarly situated applicants.
The Department is revising the eligibility criteria to exclude the most
subjective of criteria and adding new objective bases for establishing
exceptional circumstances. The Department aims to promote consistency
in adjudications of applications for special immigrant status.
Codifying these objective criteria is intended to increase the
likelihood that similar service is rewarded similarly around the world
and increase the fairness and integrity of the special immigrant status
process through more consistent application of the law. These
transparent standards will aid the U.S. government abroad in recruiting
and retaining loyal and committed foreign nationals.
How will the Department implement this rule?
There is a six-month delay in the effective date of this rule for
the Department to continue the orderly adjudication of cases that are
ready or nearly ready for consideration by the principal officer or the
Secretary, or designee. The new standards will apply to all
recommendations from the principal officer of a Foreign Service
establishment submitted to the Department for consideration by the
Secretary of State, or designee, on or after the effective date. The
Department considers a recommendation to be submitted when the
Department has received the principal officer's recommendation through
the proper submission methods from post. This rulemaking provides
prospective applicants seeking to qualify under INA section
101(a)(27)(D), 8 U.S.C.
[[Page 36325]]
1101(a)(27)(D), for special immigrant status notice regarding the
Department's implementation of the program.
Regulatory Findings
Administrative Procedure Act
This rule relates to a foreign affairs function, and consequently,
in accordance with 5 U.S.C. 553(a)(1), it is not subject to the notice-
and-comment rule making procedures set forth in 5 U.S.C. 553. This rule
affects the U.S. government's ability to recruit and retain locally
employed staff for its overseas missions. It also clearly and directly
impacts foreign affairs functions of the United States and
``implicat[es] matters of diplomacy directly.'' City of N.Y. v.
Permanent Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir.
2010).
This rule involves the Secretary of State's authority to determine
that it is in the national interest to grant special immigrant status
to a current or former employee of the U.S. government, a determination
that involves a wide range of foreign affairs considerations and
functions, including the U.S. government's bilateral relationship with
the host country, the impact on the U.S. government's ability to
recruit qualified personnel in the country, and the impact of special
immigrant status availability on the willingness of foreign nationals
to become, and remain as, employees of the U.S. government.
Special immigrant status eligibility is critical for the U.S.
government to recruit and retain loyal, valuable local staff outside
the United States, without which the Department could not efficiently
function overseas. The Department alone employs approximately 50,000
local staff at over 200 Foreign Service posts overseas, excluding local
staff employed on behalf of all the other U.S. government agencies
operating overseas, for which we lack data.\1\ Because special
immigrant status is only available to locally employed staff with at
least fifteen years of faithful service, and under exceptional
circumstances, potential eligibility encourages employees to remain in
their jobs and to provide long-term, institutional memory to U.S.
government agencies abroad. This is particularly essential in countries
where local staff members face retribution by the host government,
making it even more challenging to recruit and retain a locally
employed workforce. The potential for locally employed staff to obtain
special immigrant status for their spouses and children, in particular,
is central to the U.S. government's ability to recruit and retain loyal
and committed foreign nationals to support U.S. missions overseas.
Consequently, the approval of recommendations for special immigrant
status, and the promulgation of standards for such approval under the
Secretary of State's authority in INA section 101(a)(27)(D), 8 U.S.C.
1101(a)(27)(D), involve foreign affairs functions of the Department of
State.
---------------------------------------------------------------------------
\1\ Corey R Gill, U.S. Department of State Personnel: Background
and Selected Issues for Congress, Congressional Research Service, 15
(May 18, 2018).
---------------------------------------------------------------------------
Regulatory Flexibility Act/Executive Order 13272: Small Business
Because this rule is exempt from notice and comment rulemaking
under 5 U.S.C. 553, it is exempt from the regulatory flexibility
analysis requirements set forth by the Regulatory Flexibility Act (5
U.S.C. 603 and 604). Nonetheless, consistent with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this
rule will not have a significant economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, generally requires agencies to prepare a statement before
proposing any rule that may result in an annual expenditure of $100
million or more by State, local, or tribal governments, or by the
private sector. This rule will not result in any such expenditure, nor
will it significantly or uniquely affect small governments.
Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rule is not a major rule as defined by 5 U.S.C. 804(2).
Executive Order 12866, 13563, and 13771
The Office of Information and Regulatory Affairs has determined
that this is a significant regulatory action under Executive Order
12866 and has reviewed this document. The Department has also reviewed
this rulemaking to ensure its consistency with the regulatory
philosophy and principles set forth in Executive Order 12866. The
Department has also considered this rule in light of Executive Order
13563 and affirms that this regulation is consistent with the guidance
therein. This regulation is de minimis under Executive Order 13771.
This regulation is being promulgated to avoid unfair variation in
the administration of the special immigrant status program and to
ensure consistent application of certain provisions of immigration law
to principal officer recommendations for special immigrant status at
U.S. foreign missions around the world. The Department estimates that
approximately 60 recommendations from a principal officer per year may
be initially impacted by this rule, because an employee's
qualifications will not demonstrate the requisite exceptional
circumstances to qualify for special immigrant status due to the
changes in standards implemented through this rule. The Department is
unable to reliably estimate the number of dependents who may also be
restricted in their ability to qualify for derivative status until
their spouse or parent is recommended by a principal officer under this
new rule. Assuming an average of 2 derivatives per principal applicant,
the rule could affect approximately 180 people worldwide per year. The
Department derived the estimate of affected principal officer
recommendations from recent data regarding applicants who previously
qualified for this program under the exceptional circumstances that are
being removed or changed under this rule.\2\
---------------------------------------------------------------------------
\2\ Specifically, the Department analyzed a sample of cases
reviewed from June 2018 to March 2019. Of the 508 principal officer
recommendations reviewed during that 10-month period, 50 qualified
for this program solely based on the categories of exceptional
circumstances that are being removed or changed. The volume of
applications reviewed during this period was consistent with
historical precedent. Based on this sample, the Department estimates
that approximately five potential principal officer recommendations
per month, or 60 per year, will not be eligible for special
immigrant status but may have been eligible under the previous
eligibility criteria. However, the Department has no way to
anticipate the number of aliens who might qualify in the future
under the new categories of exceptional circumstances created in
this regulation.
---------------------------------------------------------------------------
The majority of the affected principal officer recommendations
related to employee qualifications each year are likely to be delayed
rather than permanently eliminated, as there are several other
circumstances through which employees may receive principal officer
recommendations and qualify for special immigrant status in the future.
For example, some principal officer recommendations for applicants with
at least 15 years of service, but less than 20 years of service, could
previously qualify under the grounds of receiving at least two
individual honor awards. This rule eliminates this category of
exceptional circumstance. However, these same principal officer
recommendations may still qualify under a separate exceptional
circumstance in the future by reaching 20 years of service. As a
result, while an
[[Page 36326]]
estimated 60 recommendations from principal officers regarding the
qualification of applicants may be affected, the Department does not
expect that a significant number of principal officer recommendations
will be permanently affected.
The Department notes that there is a possibility that this rule may
make it more difficult to hire foreign workers; however, as this
program will remain intact and the effect is more likely to delay
rather than eliminate eligibility, the Department expects this impact
to be minimal. The Department will incur de minimis administrative
costs to provide clear guidance and messaging regarding this change to
all posts and to locally employed staff that may be impacted by the
rule. While some locally employed staff may believe a principal officer
would likely recommend them for special immigrant status on bases
eliminated by this rule, there are several other categories, as
discussed above, through which they may qualify in the future.
Executive Orders 12372 and 13132: Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. The rule will not have federalism
implications warranting the application of Executive Orders 12372 and
13132.
Executive Order 12988: Civil Justice Reform
The Department has reviewed the regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Order 13175
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of section 5 of Executive Order 13175 do
not apply to this rulemaking.
Paperwork Reduction Act
Special immigrant status applicants complete the DS-1884 (OMB
Control Number 1405-0082) and the DS-260 (OMB Control Number 1405-0185)
after the Secretary, or designee, approves the recommendation from the
principal officer. This rule has no effect on the DS-1884 or the cost
burdens for individual applicants completing these forms. Rather, this
rule applies to the adjudication standards applied internally by the
Department's personnel. The Department believes this rule may initially
reduce the overall number of DS-1884, Petition to Classify Special
Immigrant Under INA 203(b)(4), by approximately 60 per year due to a
decrease either in the number of principal officer recommendations
submitted to the Department or the number of recommendations approved
by the Secretary, or his designee. However, many of the affected
applicants will likely eventually qualify and file both the form DS-
1884 and DS-260. Because this rule is likely to delay, rather than
prevent, most affected applicants from completing these forms, the
Department does not believe that this proposal will affect the burden
of these forms.
The Department estimates a related reduction in the overall number
of immigrant visa applications on form DS-260 by approximately 180 per
year, based on the past average of approximately two derivative family
members per applicant for this applicant pool. The Department is unable
to reliably estimate the number of dependents of affected applicants
for special immigrant status who will not file a DS-260, if the
principal subsequently is approved for SIV status, because, e.g., they
will age out of dependent eligibility or they will be unable or
unwilling to wait.
List of Subjects in 22 CFR Part 42
Aliens, Immigration, Passports and Visas.
Accordingly, for the reasons set forth in the preamble, the
Department of State amends 22 CFR part 42 as follows:
PART 42 VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 42 continues to read as follows:
Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat.
2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection
of Children and Co-operation in Respect of Intercountry Adoption
(done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998),
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954
(Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287,
124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).
Subpart D--Immigrants Subject to Numerical Limitations
0
2. In Sec. 42.32, revise paragraph (d)(2) to read as follows:
Sec. 42.32 Employment-based preference immigrants.
* * * * *
(d) * * *
(2) See 22 CFR 42.34.
* * * * *
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3. Add Sec. 42.34 to read as follows:
Sec. 42.34 Special immigrant visas--certain U.S. Government
employees.
(a) General. (1) An alien is classifiable under INA 203(b)(4) as a
special immigrant described in INA 101(a)(27)(D) provided:
(i) The alien has performed faithful service to the United States
Government abroad, or of the American Institute in Taiwan, for a total
of fifteen years, or more;
(ii) The principal officer of a Foreign Service establishment (or,
in the case of the American Institute in Taiwan, the Director),
recommends granting special immigrant status to such alien in
exceptional circumstances;
(iii) The Secretary of State, or designee, approves such
recommendation and finds that it is in the national interest to grant
such status.
(b) Petition requirement. An alien who seeks classification as a
special immigrant under INA 203(b)(4) based on service as an employee
to the U.S. government abroad or American Institute in Taiwan must file
a Form DS-1884, Petition to Classify Special Immigrant under INA
203(b)(4) as an Employee or Former Employee of the U.S. Government
Abroad, with the Department of State. An alien may file such a petition
only after, but within one year of, notification from the Department
that the Secretary of State or designee has approved a recommendation
from the principal officer that special immigrant status be accorded
the alien in exceptional circumstances, and has found it in the
national interest to do so.
(1) Petition fees. The Secretary of State shall establish a fee for
the filing of a petition to accord status under INA 203(b)(4) which
shall be collected following notification that the Secretary of State,
or designee, has approved the recommendation that the alien be granted
status as a special immigrant under INA 101(a)(27)(D).
(2) Establishing priority date. The priority date of an alien
seeking status under INA 203(b)(4) as a special immigrant described in
101(a)(27)(D) shall be the date on which the petition
[[Page 36327]]
to accord such classification, the DS-1884, is filed. The filing date
of the petition is the date on which a properly completed form and the
required fee are accepted by a Foreign Service post. Pursuant to INA
203(d), and whether or not named in the petition, the spouse or child
of an alien classified under INA 203(b)(4), if not otherwise entitled
to an immigrant status and the immediate issuance of a visa, is
entitled to the classification and priority date of the beneficiary of
the petition.
(3) Delegation of authority to approve petitions. The authority to
approve petitions to accord status under INA 203(b)(4) to an alien
described in INA 101(a)(27)(D) is hereby delegated to the chief
consular officer at the post of recommendation or, in the absence of
the consular officer, to any alternate approving officer designated by
the principal officer. Such authority may not be exercised until the
Foreign Service post has received formal notification of the Secretary
of State or designee's approval of special immigrant status for the
petitioning alien.
(4) Petition validity. Except as noted in this paragraph, the
validity of a petition approved for classification under INA 203(b)(4)
shall be six months beyond the date of the Secretary of State's
approval thereof or the availability of a visa number, whichever is
later.
(5) Extension of special immigrant status and petition validity. If
the principal officer of a post concludes that circumstances in a
particular case are such that an extension of validity of the Secretary
of State or designee's approval of the principal officer's
recommendation or of the petition would be in the national interest,
the principal officer shall recommend to the Secretary of State or
designee that such validity be extended for not more than one
additional year.
(c) Definitions--(1) Full-time service. An alien must have been
employed for a total of at least 15 full-time years, or the equivalent
thereof, in the service of the U.S. government abroad. The number of
hours per week that qualify an employee as full-time is dependent on
local law and prevailing practice in the country where the alien is or
was employed, as reflected in the employment documentation submitted
with the application for special immigrant status. An alien may qualify
as a special immigrant under INA 101(a)(27)(D) on the basis of
employment abroad with one or more than one agency of the U.S.
government provided the total amount of full-time service with the U.S.
government is 15 years or more, or the equivalent thereof.
(2) Faithful service. An alien must have performed faithfully in
the position held. The principal officer has the primary responsibility
for determining whether the alien's service meets this requirement. A
record of disciplinary actions that have been taken against the alien
does not automatically disqualify the alien. The principal officer must
assess the disciplinary action in light of the extent and gravity of
the misconduct and when it occurred and determine whether the record as
a whole, notwithstanding disciplinary actions, is one of faithful
service.
(3) Continuity. The alien's period of service need not have been
continuous.
(4) Abroad. The service must have occurred anywhere outside the
United States, as the term ``United States'' is defined in INA
101(a)(38).
(5) Employment at the American Institute in Taiwan. INA
101(a)(27)(D) permits both present and former employees of the American
Institute in Taiwan to apply for special immigrant status. An alien's
service before and after the founding of the American Institute in
Taiwan is counted toward the minimum 15 years of service requirement.
(6) Honorably retired. Separations within the meaning of
``honorably retired'' include, for example, those resulting from
mandatory or voluntary retirement, reduction-in-force, or resignation
for personal reasons. Separations not within the meaning of ``honorably
retired'' would include a termination for cause or an involuntary
termination or resignation in lieu of a termination for cause.
(7) Definition of exceptional circumstances. The principal officer
must determine that an alien demonstrates at least one form of
``exceptional circumstances'' to support an application for special
immigrant status.
(i) Prima facie indicators of exceptional circumstances. In the
following situations an alien's service with the U.S. government
generally will be deemed to have met exceptional circumstances.
(A) Diplomatic relations between the alien's country of nationality
and the United States have been severed;
(B) Diplomatic relations between the country in which the alien was
employed and the United States have been severed;
(C) The country in which the alien was employed and the United
States have strained relations and the employee may be subjected to
retribution by the local, State, Federal, or other official government
body merely because of association with the U.S. government, or the
alien may be pressured to divulge information contrary to U.S. national
interests; or
(D) The alien was hired as an employee at the Consulate General at
Hong Kong on or before July 1, 1999.
(ii) Strong indicators of exceptional circumstances. (A) It is
believed that continued service to the U.S. government might endanger
the life of the alien;
(B) The alien has, fulfilled responsibilities or given service in a
manner that approaches the heroic;
(C) The alien has been awarded a global or a regional ``Foreign
Service National of the Year'' Award;
(D) The alien has disclosed waste, fraud or abuse, a substantial
and specific danger to public health or safety, or a violation of law,
rule, or regulation within the Department or other U.S. government
agency, if such disclosure results in significant action by the
Department or other U.S. government agency against an offending party,
such as termination or severance of a contractual relationship, or
criminal charges against any person or entity;
(E) The employee has served the U.S. government for a period of
twenty years or more.
(8) Immediate intent to immigrate. (i) The recommendation of the
principal officer must certify that the employee being recommended is
prepared to pursue an immigrant visa application within one year of the
Department's notification to the post of approval of special immigrant
status and, if the employee is not honorably retired, that the employee
intends permanent separation from U.S. government employment abroad no
later than the date of departure for the United States following
issuance of an immigrant visa.
(ii) Employees of Hong Kong Consulate General hired on or before
July 1, 1999, are not required to establish immediate intent to
immigrate. Employees of the Hong Kong Consulate General who received or
were approved for special immigrant status before July 1, 1999, also
may continue employment with the U.S. government.
Carl C. Risch,
Assistant Secretary for Consular Affairs, U.S. Department of State.
[FR Doc. 2020-12344 Filed 6-15-20; 8:45 am]
BILLING CODE 4710-06-P