Rule2024-28846
Visas: Special Immigrant Visas-U.S. Government Employee Special Immigrant Visas for Service Abroad
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 10, 2024
Effective
December 10, 2024
Issuing agencies
State Department
Abstract
This final rule makes updates to reflect a statutory change to the class of individuals who may qualify for Special Immigrant Visas (SIVs).
Full Text
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<title>Federal Register, Volume 89 Issue 237 (Tuesday, December 10, 2024)</title>
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[Federal Register Volume 89, Number 237 (Tuesday, December 10, 2024)]
[Rules and Regulations]
[Pages 99076-99081]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28846]
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DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice: 12446]
RIN 1400-AF82
Visas: Special Immigrant Visas--U.S. Government Employee Special
Immigrant Visas for Service Abroad
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This final rule makes updates to reflect a statutory change to
the class of individuals who may qualify for Special Immigrant Visas
(SIVs).
DATES: This final rule is effective December 10, 2024.
FOR FURTHER INFORMATION CONTACT: Jami Thompson, Senior Regulatory
Coordinator, U.S. Department of State, Bureau of Consular Affairs, Visa
Services, 600 19th Street NW, Washington, DC 20522, (202) 485-7586,
<a href="/cdn-cgi/l/email-protection#d98fb0aab88bbcbeaa99aaadb8adbcf7beb6af"><span class="__cf_email__" data-cfemail="3e68574d5f6c5b594d7e4d4a5f4a5b10595148">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Special Immigrant Visas for Certain Employees or Former Employees of
the United States Abroad, and for the Surviving Spouses or Children of
Certain Deceased Employees of the U.S. Government Abroad
A. Legal Authority
Section 203(b)(4) of the Immigration and Nationality Act (INA), as
amended 8 U.S.C. 1153(b)(4), generally provides that visas may be
issued to qualified special immigrants described in INA section
101(a)(27). Among the individuals considered ``special immigrants'' as
defined in this provision, INA section 101(a)(27)(D), 8 U.S.C.
1101(a)(27)(D), defines ``special immigrant'' to include 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, and who have been recommended and
approved for such status in accordance with enumerated criteria.
Section 403(a) of the Emergency Security Supplemental
Appropriations Act, 2021 (``ESSAA''), Public Law 117-31, 135 Stat. 309,
318, amended the definition of a special immigrant at INA section
101(a)(27)(D) to include a new subclause (ii). The new subclause
includes in the definition of ``special immigrant'' the surviving
spouse or child of an employee of the United States Government abroad:
Provided, [t]hat the employee performed faithful service for a total of
not less than 15 years or was killed in the line of duty.'' Under this
provision, the qualifying surviving spouse or child of a U.S.
Government employee is a principal applicant for special immigrant
status, and consequently, their current spouse and minor child(ren) are
entitled to SIVs as derivatives under INA section 203(d), 8 U.S.C.
1153(d), if accompanying or following to join the qualifying surviving
spouse or parent. Pursuant to section 403(d) of the ESSAA, these
changes are effective June 30, 2021, and have retroactive effect.
In addition to the qualifications for this group of ``special
immigrants,'' INA section 204(a)(1)(G)(ii) governs the process through
which an individual claiming status as a special immigrant under INA
section 101(a)(27)(D) must file a petition with the Department of
State, requiring that they first be recommended and approved for such
status.
B. Processing for Special Immigrants Under INA Section 101(a)(27)(D)
Under INA sections 204(a)(1)(G)(ii) and 101(a)(27)(D)(i),
acquisition of special immigrant status under INA section 101(a)(27)(D)
requires multiple sequential steps. First, the principal officer of the
U.S. embassy or consulate with jurisdiction over where the individual
was employed must have recommended the granting of special immigrant
status in exceptional circumstances, and the Secretary of State or
appropriate designee must have approved the recommendation and found
that it is in the national interest to grant such status. Second, under
INA section 204(a)(1)(G)(ii), only after the approval of the
recommendation, the applicant may submit 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, or the Surviving Spouse or
Child of an Employee of the U.S. Government Abroad, to a consular
officer at a foreign service post. Under Department regulations at 22
CFR 42.34(b)(2), the date the applicant's properly completed DS-1884 is
accepted becomes the applicant's priority date. Those same regulations
at 22 CFR 42.34(b)(4) provide that a petition from a qualifying
individual is valid for six months from the date of approval or the
date an immigrant visa number becomes available, whichever is later.
C. What is the impact of the ESSAA?
Prior to passage of the ESSAA, if the employee were to die before
entering the United States using their immigrant visa, the surviving
spouse or child would be ineligible for immigrant status. With the
passage of the ESSAA, a surviving spouse and surviving child(ren), as a
principal applicant, are eligible to seek qualification as a special
immigrant. Additionally, in situations where the employee did not
pursue special immigrant status prior to the employee's death, their
surviving spouse and/or child may now qualify to be approved for
status. These changes apply retroactively, meaning that the surviving
spouse or child of an employee who died prior to the effective date of
the ESSAA may also seek to qualify. To be a surviving spouse, the
spousal relationship must have existed at the time of the deceased
employee's death. To be a surviving child, the adult son or daughter of
the deceased employee must have met the definition of ``child'' under
INA section 101(b)(1) on the date of the employee's death.
II. Changes the Department Is Making
A. 22 CFR 42.11
This rule makes updates to the Department's regulations at 22 CFR
42.11 that list the symbols of the current immigrant visa
classifications to conform with the new classifications added by the
ESSAA. Specifically, under the ``Employment 4th Preference (Certain
Special Immigrants)'' header, the Department is adding: The ``SS1''
symbol that will be used for issuance of SIVs to the surviving spouse
or child of a U.S. Government employee; the ``SS2'' symbol that will be
used for issuance of an SIV to the current spouse of an SS1 who
qualifies as a derivative under INA 203(d); and the ``SS3'' symbol that
will be used for issuance of an SIV to the minor child(ren) of an SS1
who meet(s) the definition of ``child'' under INA 101(b)(1) and 203(h),
and qualify(ies) as a derivative under INA 203(d).
B. 22 CFR 42.34
This rule makes changes to Department regulations at 22 CFR 42.34
to conform with the expanded definition of ``special immigrant'' under
the ESSAA. For the reasons explained below, the Department believes
these (or
[[Page 99077]]
equivalent) changes are necessary to implement the best reading of the
ESSAA. The changes include the explanation of the classification of a
surviving spouse or child of an employee of the United States
Government abroad who was killed in the line of duty, or who performed
faithful service for at least fifteen years before their death.
As summarized above, the ESSAA added a new subsection (ii) to INA
101(a)(27)(D) and amended INA 101(a)(27)(D) to specify that a ``special
immigrant'' includes an individual described in clause (D)(i) ``or''
clause (D)(ii). The ESSAA did not amend INA 204(a)(1)(G)(ii), which
governs the process through which an individual petitions for status
``as a special immigrant under INA 101(a)(27)(D).'' Consequently, as
this provision was not amended to distinguish the petition process for
special immigrants described in INA 101(a)(27)(D)(i) or INA
101(a)(27)(D)(ii), INA 204(a)(1)(G)(ii) continues to govern the
petition process for both subcategories of ``special immigrants''
described in section 101(a)(27)(D), providing that applicants seeking
status under either subcategory ``may file a petition . . . only after
notification by the Secretary of State that such status has been
recommended and approved pursuant to such section.'' Although INA
101(a)(27)(D)(ii) as amended does not expressly reference a framework
for recommendation and approval, INA 101(a)(27)(D)(i) establishes the
standards for a recommendation and approval process, including that the
recommendation of an individual for special immigrant status be made in
``exceptional circumstances'' and the approval be ``in the national
interest,'' as well as identifies officers vested with authority for
those respective functions. Incorporating into INA 101(a)(27)(D)(ii)
the standards and process for recommendation and approval expressly
provided by Congress in INA 101(a)(27)(D)(i) reflects the best reading
of the statutory framework as amended by ensuring consistency with the
companion provision in INA 204(a)(1)(G)(ii) requiring recommendation
and approval of such cases and ensuring the consistent application of
the longstanding framework for the granting of special immigrant visas
to U.S. Government employees.
To address potential inconsistencies in how this change would be
implemented using the existing definition of ``exceptional
circumstances'' at 22 CFR 42.34(c)(7), this rule explains the
circumstances in which a surviving spouse or child would be recommended
for special immigrant status, based on the criteria described in INA
section 101(a)(27)(D)(ii). In addition to qualifying employees' deaths
that occurred in the line of duty, these include when the deceased
employee performed at least 15 years of faithful service for the U.S.
Government and either would have qualified for special immigrant status
before dying or was employed by the U.S. Government as of the date of
their death or in the immediately preceding five-year period. These
parameters will encompass those family members of deceased employees
who, but for their death following at least 15 years of faithful
service, were likely to have soon qualified for special immigrant
status by accumulating 20 years of faithful service (where 20 years is
a strong indicator of exceptional circumstances under 22 CFR
42.34(c)(7)(ii)(E)). This standard encompasses those who were employed
by the U.S. Government in the period immediately preceding their death,
as the Department anticipates that in some cases, an employee may have
ceased employment by the U.S. Government with the intention of
returning, but for circumstances out of their control. For example, an
employee who dies following a serious illness may have ceased or
temporarily left their employment for a period to combat their illness.
Consequently, to provide clarity to the public and support consistent
application, the rule establishes a rebuttable presumption that a death
occurring more than five years after cessation of employment is not
related to the cessation of their employment for purposes of their
surviving spouse or child qualifying for special immigrant status.
The Department believes this five-year presumption will account for
the gravity and severity of the circumstances surrounding cessation of
employment, and the likelihood that a previously employed individual
would have returned to work to complete 20 years of service, if they
were able to do so. This presumption is rebuttable and will require
case-specific consideration of those individuals whose circumstances
fall outside the five-year presumption and who wish to provide evidence
to establish their qualifications. Surviving spouses and children of
employees who died for reasons unrelated to cessation of employment are
not precluded from qualifying as special immigrants, provided they can
demonstrate that the employee demonstrated at least one form of
``exceptional circumstances'' while still employed. The changes also
highlight that the processes to qualify for eligibility are the same
for a surviving spouse or child as they are for employees. These
changes make necessary amendments to 22 CFR 42.34 to provide for the
issuance of SIVs to qualified surviving spouses and children of U.S.
Government employees, and to reflect the amended citations in INA
section 101(a)(27)(D) under the ESSAA.
This rule also makes corrections throughout 22 CFR 42.34 to replace
the term ``alien'' with the term ``applicant'' or ``employee,'' as
appropriate. This change is consistent with current Department
practice.\1\
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\1\ See 88 FR 45072 (July 14, 2023).
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Finally, this rule also amends the certification, required as part
of the principal officer's recommendation, that the individual 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.'' As applicants in numerically
limited immigrant visa categories, including INA section 203(b)(4), may
not pursue an immigrant visa application until such time that a visa
number becomes available in that category, this requirement has been
changed to reflect that the recommended individual must be prepared to
pursue their application ``within one year of the Department's
notification to the post of approval of special immigrant status, or of
an immigrant visa becoming available, whichever is later.''
Regulatory Findings
A. Administrative Procedure Act
This rule is exempted from the notice and comment and delayed
effective date rulemaking procedures set forth in 5 U.S.C. 553 because
the rule involves a foreign affairs function. 5 U.S.C. 553(a)(1). This
exemption applies when the rule's subject matter ``is clearly and
directly involved in a foreign affairs function.'' Mast Indus. v.
Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) (quotation marks omitted).
In addition, although the text of the APA does not require an agency
invoking this exemption to show that rulemaking with public notice and
comment would result in ``definitely undesirable international
consequences,'' some courts have required such a showing. See, e.g.,
Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). This rule
satisfies both standards.
[[Page 99078]]
This rule extends the authority to grant special immigrant status
to the surviving spouse or child of a U.S. Government employee who
performed faithful service for at least fifteen years or was killed in
the line of duty. As with the availability of special immigrant status
to qualifying locally employed staff, eligibility for employees'
surviving spouses and children 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 and their families face retribution by the host
government, making it even more challenging to recruit and retain a
locally employed workforce. For this reason, extending eligibility to
the employee's surviving spouse and children critically impacts the
willingness of foreign nationals to become, and remain, employees of
the U.S. Government in overseas posts, and hence directly impacts the
effectiveness of U.S. diplomatic efforts in those countries.
The Department's establishment of criteria for surviving spouses
and child(ren) to qualify for special immigrant status under ESSAA
clearly and directly relates to U.S. foreign affairs, because the
criteria itself is critical for the U.S. Government to recruit and
retain loyal, valuable local staff outside the United States, without
whom the Department could not fulfill its diplomatic functions
overseas. The Department alone employs approximately 50,000 local staff
at over 200 Foreign Service posts overseas. Expanded qualifications for
surviving spouses and child(ren) is critical to recruitment, retention,
and morale of these locally employed staff who help the Department
carry out its foreign affairs functions overseas. For example,
following the 2013 death of Mustafa Akarsu, a member of the local guard
force for U.S. Embassy Ankara for 22 years, when he confronted a
suicide bomber outside the Embassy, Department employee organizations
including the American Foreign Service Association, advocated for
passage of legislation eventually enacted in ESSAA to provide SIVs to
the surviving spouses and children of U.S. Government employees killed
in the line of duty. Consequently, implementation of these standards
for surviving family members clearly and directly involves a U.S.
foreign affairs function.
Finally, the Department considers that providing the opportunity
for public notice and comment would provide ``definitely undesirable
international consequences,'' in that conducting and resolving a public
debate regarding the safety of surviving spouses and children of U.S.
Government employees killed abroad would risk impairing U.S. relations
with other countries. See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437
(2d Cir. 2008). The loss of United States local employees in the line
of duty has previously had the effect of straining bilateral relations,
and has the continued potential to do so, particularly when such losses
involve local foreign authorities or other parties over which the host
country exercises control. This may be even more so in countries with
which the United States already has sensitive or strained relations,
which may oppose the availability of immigrant visas to the surviving
spouses and children of such staff, who are usually nationals of the
host country. Accordingly, the promulgation of standards for approval
under the Secretary of State's authority in INA 101(a)(27)(D) involves
an inherently foreign affairs function of the Department of State.
B. Regulatory Flexibility Act/Executive Order 13272: Small Business
As this final rule is exempt from notice and comment rulemaking
under 5 U.S.C. 553(a)(1), it is exempt from the regulatory flexibility
analysis requirements set forth by the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Nonetheless, as this action only directly impacts
visa applicants, the Department certifies that this rule will not have
a significant economic impact on a substantial number of small U.S.
entities.
C. Congressional Review Act of 1996
This rule is not a major rule as defined in 5 U.S.C. 804. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of United States-based companies to compete with foreign-based
companies in domestic and import markets.
D. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review)
This rule has been drafted in accordance with the principles of
Executive Orders 12866 (as amended by Executive Order 14094) and 13563.
The Department has submitted this rule to OIRA for review and it has
been deemed a significant regulatory action.
E. Executive Order 12988: Civil Justice Reform
The Department of State has reviewed the rule considering sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burdens.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
The Department of State 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.
G. Paperwork Reduction Act
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C.
Chapter 35. The 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, is approved under the PRA (OMB Control No. 1405-
0082).
H. Other
The Department has also considered the Unfunded Mandates Reform Act
of 1995 and Executive Orders 12372 and 13132 and affirms this rule is
consistent with the applicable mandates or guidance therein.
List of Subjects in 22 CFR Part 42
Administrative practice and procedure, Aliens, Passports and visas.
Accordingly, for the reasons set forth in the preamble, 22 CFR part
42 is amended 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. 117-31, 135
Stat. 309); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).
0
2. Section 42.11 is amended in table 1 to Sec. 42.11 under the
undesignated
[[Page 99079]]
center heading ``Employment 4th Preference (Certain Special
Immigrants)'' by:
0
a. Revising the entries for SE1, SE2, SE3, and SS1; and
0
b. Adding entries for SS2 and SS3 in alphanumeric order.
The revisions and additions read as follows:
Sec. 42.11 Classification symbols.
* * * * *
Table 1 to Sec. 42.11
------------------------------------------------------------------------
Symbol Class Section of Law
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Employment 4th Preference (Certain Special Immigrants)
------------------------------------------------------------------------
* * * * * * *
SE1....................... Certain Employee or INA 101(a)(27)(D)(i)
Former Employee of & INA 203(b)(4).
the U.S. Government
Abroad.
SE2....................... Spouse of SE1........ INA 101(a)(27)(D)(i)
& INA 203(b)(4).
SE3....................... Child of SE1......... INA 101(a)(27)(D)(i)
& INA 203(b)(4).
* * * * * * *
SS1....................... Surviving Spouse or INA 101(a)(27)(D)(ii)
Child of an Employee & INA 203(b)(4).
of the United States
Government Abroad.
SS2....................... Current Spouse of SS1 INA
101(a)(27)(D)(ii),
INA 203(b)(4) & INA
203(d).
SS3....................... Child of SS1 INA
(Excludes Surviving 101(a)(27)(D)(ii),
Child of an Employee INA 1101(b)(1),
of the United States 203(b)(4), & INA
Government Abroad), 203(d).
provided the child
meets the definition
of 101(b)(1) of the
INA.
* * * * * * *
------------------------------------------------------------------------
0
3. Section 42.34 is revised to read as follows:
Sec. 42.34 Special immigrant visas-certain U.S. Government employees.
(a) General. An applicant is classifiable under INA 203(b)(4) as a
special immigrant described in INA 101(a)(27)(D) provided:
(1) (i) The applicant has performed faithful service to the United
States Government abroad, or the American Institute in Taiwan, for a
total of fifteen years or more; or
(ii) The applicant is the surviving spouse or child of an employee
of the United States Government abroad who performed faithful service
for a total of not less than 15 years or was killed in the line of
duty; and
(2) 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 person in
exceptional circumstances; and
(3) 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 applicant who seeks classification as
a special immigrant described in paragraph (a) of this section 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, or the Surviving Spouse or Child of an Employee of the U.S.
Government Abroad, with the Department of State. An applicant described
in INA 101(a)(27)(D) 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 applicant 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 applicant be
granted status as a special immigrant under INA 101(a)(27)(D).
(2) Establishing priority date. The priority date of an applicant
seeking status under INA 203(b)(4) as a special immigrant described in
INA 101(a)(27)(D) shall be the date on which the petition 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 named in the petition, the current spouse or child
who meets the definition of ``child'' under INA 101(b)(1) of an
applicant 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 applicant
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 applicant.
(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
[[Page 99080]]
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. Where 15 years of service
is the minimum time required for eligibility for a special immigrant
visa, the employee 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 individual is or was employed, as reflected in
the employment documentation submitted with the application for special
immigrant status. The years of service may be met based on 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. Where faithful service is required for
eligibility for a special immigrant visa, an employee must have
performed faithfully in the position held. The principal officer has
the primary responsibility for determining whether the employee's
service meets this requirement. A record of disciplinary actions that
have been taken against the employee does not automatically disqualify
the applicant. The principal officer must assess the record of
disciplinary actions considering the extent and gravity of the
misconduct and when the incidents occurred, and determine whether the
record as a whole, notwithstanding disciplinary actions, is one of
faithful service.
(3) Continuity. Where 15 years of service is the minimum time
required for eligibility for a special immigrant visa, the employee's
period of service need not have been continuous but must have an
aggregate total of 15 years of service to qualify.
(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
employee'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) Exceptional circumstances for employees of the United States
Government abroad. For classification as a special immigrant under INA
101(a)(27)(D)(i), the principal officer must determine that an employee
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 employee's service with the U.S. Government
generally will be deemed to have met exceptional circumstances.
(A) Diplomatic relations between the employee's country of
nationality and the United States have been severed;
(B) Diplomatic relations between the country in which the employee
was employed and the United States have been severed;
(C) The country in which the employee 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
employee may be pressured to divulge information contrary to U.S.
national interests; or
(D) The employee was hired 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 employee;
(B) The employee has fulfilled responsibilities or given service in
a manner that approaches the heroic;
(C) The employee has been awarded a global or a regional ``Foreign
Service National of the Year'' Award;
(D) The employee 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) Exceptional circumstances for surviving spouses and children.
For classification as a special immigrant under INA 101(a)(27)(D)(ii),
the principal officer must determine that the deceased employee:
(i) Was killed in the line of duty; or
(ii) Performed faithful service to the United States Government
abroad for a total of not less than 15 years; and
(A) Was employed by the U.S. Government as of the date of their
death or in the immediately preceding period as defined in paragraph
(c)(9) of this section, or
(B) Was an honorably retired former employee who, prior to their
death, demonstrated at least one form of ``exceptional circumstances''
as defined in paragraph (c)(7) of this section.
(9) Immediately preceding period. (i) As provided in paragraph
(c)(8)(ii)(A) of this section, a deceased employee is considered to
have been employed by the U.S. Government in the period immediately
preceding their death if such employment ceased due to circumstances
that resulted in their death.
(ii) A deceased employee is presumed to not meet the criteria in
paragraph (c)(8)(ii)(A) of this section if the employee's death
occurred more than five years following cessation of employment. This
presumption can be rebutted if the applicant establishes, to the
satisfaction of the principal officer, that the employment ceased due
to circumstances that resulted in the employee's death, and the
Secretary or appropriate designee finds it in the national interest to
grant such status. The principal officer has the primary responsibility
for determining whether the applicant meets this criterion, taking into
consideration as informed by the circumstances of the cessation of
employment, the cause of the employee's death as documented by the
applicant, and other relevant evidence the applicant presents that
demonstrates that the cessation of employment was for reasons that
ultimately resulted in the employee's death.
(10) Immediate intent to immigrate. (i) The recommendation of the
principal officer must certify that the applicant being recommended is
prepared to file a petition within one year of the Department's
notification to the post of approval of special immigrant status, and
to pursue an immigrant visa application within six months of the
Secretary of State's approval of the petition or of an immigrant visa
becoming available, whichever is later.
[[Page 99081]]
If the applicant is an employee who is not yet honorably retired, the
recommendation must also certify 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.
Julie M. Stufft,
Deputy Assistant Secretary, Consular Affairs, Department of State.
[FR Doc. 2024-28846 Filed 12-9-24; 8:45 am]
BILLING CODE 4710-06-P
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</html>Indexed from Federal Register on December 10, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.