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PROCEDURE
FOR GRANTING IMMIGRANT STATUS SEC.
204 (a)
Petition for Preference Status or Immediate Relative Status; Spousal
Second Preference Petition. – (1)
(A)
(i) Any citizen of the United States claiming that an alien is
entitled to classification by reason of a relationship described in paragraph
(1), (3), or (4) of section 203(a) or to an immediate relative status under
section 201(b)(2)(A)(i) may file a petition with the Attorney General for such
classification. (ii)
An alien spouse described in the second sentence of section 201(b)(2)(A)(i) also
may file a petition with the Attorney General under this subparagraph for
classification of the alien (and the alien's children) under such section. (iii) An alien who is the spouse of a citizen of the United States, who is a person of good moral character, who is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i),and who has resided in the United States with the alien's spouse may file a petition with the Attorney General under this subparagraph for classification of the alien (and any child of the alien if such a child has not been classified under clause (iv)) under such section if the alien demonstrates to the Attorney General that (I)
the alien is residing in the United States, the marriage between the alien and
the spouse was entered into in good faith by the alien, and during the marriage
the alien or a child of the alien has been has been battered by or has been the
subject of extreme cruelty perpetrated by the alien's spouse; and (II)
the alien is a person whose removal, in the opinion of the Attorney General,
would result in extreme hardship to the alien or a child of the alien. (iv)
An alien who is the child of a citizen of the United States, who is a person of
good moral character, who is eligible to be classified as an immediate relative
under section 201(b)(2)(A)(i), and who has resided in the United States with the
citizen parent may file a petition with the Attorney General under this
subparagraph for classification of the alien under such section if the alien
demonstrates to the Attorney General that (I)
the alien is residing in the United States and during the period of residence
with the citizen parent the alien has been battered by or has been the subject
of extreme cruelty perpetrated by the alien's citizen parent; and (II)
the alien is a person whose removal, in the opinion of the Attorney General,
would result in extreme hardship to the alien. (B)
(i) Any alien lawfully admitted for permanent residence claiming that an
alien is entitled to a classification by reason of the relationship described in
section 203(a)(2) may rile a petition with the Attorney General for such
classification. (ii)
An alien who is the spouse of an alien lawfully admitted for permanent
residence, who is a person of good moral character, who is eligible for
classification under section 203(a)(2)(A), and who has resided in the United
States with the alien's legal permanent resident spouse may file a petition with
the Attorney General under this subparagraph for classification of the alien
(and any child of the alien if such a child has not been classified under clause
(iii)) under such section if the alien demonstrates to the Attorney General that
the conditions described in subclauses (1) and (II) of subparagraph (A)(iii) are
met with respect to the alien. (iii)
An alien who is the child of an alien lawfully admitted for permanent residence,
who is a person of good moral character, who is eligible for classification
under section 203(a)(2)(A), and who has resided in the United States with the
alien's permanent resident alien parent may rile a petition with the Attorney
General under this subparagraph for classification of the alien under such
section if the alien demonstrates to the Attorney General that (I)
the alien is residing in the United States and during the period of residence
with the permanent resident parent the alien has been has been battered by or
has been the subject of extreme cruelty perpetrated by the alien's permanent
resident parent; and (II)
the alien is a person whose removal, in the opinion of the Attorney General,
would result in extreme hardship to the alien. (C)
Any alien desiring to be classified under section 203(b)(1)(A), or any person on
behalf of such an alien, may file a petition with the Attorney General for such
classification. (D)
Any employer desiring and intending to employ within the United States an alien
entitled to classification under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2),
or 203(b)(3) may File a petition with the Attorney General for such
classification. (E)
(i) Any alien (other than a special immigrant under section
101(a)(27)(D)) desiring to be classified under
section 203(b)(4), or any person on behalf of such an alien, may rile a
petition with the Attorney General for such classification. (ii)
Aliens claiming status as a special immigrant under section 101(a)(27)(D) may
file a petition only with the Secretary of State and only after notification by
the Secretary that such status has been recommended and approved pursuant to
such section. (F)
Any alien desiring to be classified under section 203(b)(5) may file a petition
with the Attorney General for such classification. (G)
(i) Any alien desiring to be provided an immigrant visa under section
203(c) may file a petition at the place and time determined by the Secretary of
State by regulation. Only one such petition may be filed by an alien with
respect to any petitioning period established. If more than one petition is
submitted all such petitions submitted for such period by the alien shall be
voided. (ii)
(I) The Secretary of State shall designate a period for the filing of
petitions with respect to visas which may be issued under section 203(c) for the
fiscal year beginning after the end of the period. (II)
Aliens who qualify, through random selection, for a visa under section 203(c)
shall remain eligible to receive such visa only through the end of the specific
fiscal year for which they were selected. (III)
The Secretary of State shall prescribe such regulations as may be necessary to
carry out this clause. (iii)
A petition under this subparagraph shall be in such form as the Secretary of
State may by regulation prescribe and shall contain such information and be
supported by such documentary evidence as the Secretary of State may require. (H)
In acting on petitions filed under clause (iii) or (iv) of subparagraph (A) or
clause (ii) or (iii) of subparagraph (B), the Attorney General shall consider
any credible evidence relevant to the petition. The determination of what
evidence is credible and the weight to be given that evidence shall be within
the sole discretion of the Attorney General. (2)
(A) The Attorney General may not approve a spousal second preference
petition for the classification of the spouse of an alien if the alien, by
virtue of a prior marriage, has been accorded the status of an alien lawfully
admitted for permanent residence as the spouse of a citizen of the United States
or as the spouse of an alien lawfully admitted for permanent residence, unless (i)
a period of 5 years has elapsed after the date the alien acquired the status of
an alien lawfully admitted for permanent residence, or (ii) the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws. In
this subparagraph, the term "spousal second preference petition"
refers to a petition, seeking preference status under section 203(a)(2), for an
alien as a spouse of an alien lawfully admitted for permanent residence. (B)
Subparagraph (A) shall not apply to a petition filed for the classification of
the spouse of an alien if the prior marriage of the alien was terminated by the
death of his or her spouse. (b)
Investigation; Consultation; Approval, Authorization to Grant Preference
Status. After an investigation of the facts in each case, and after
consultation with the Secretary of Labor with respect to petitions to accord a
status under section 203(b)(2) or 203(b)(3), the Attorney General shall, if he
determines that the facts stated in the petition are true and that the alien in
behalf of whom the petition is made is an immediate relative specified in
section 201(b) or is eligible for preference under subsection (a) or (b) 203,
approve the petition and forward one copy thereof to the Department of State.
The Secretary of State shall then authorize the consular officer concerned to
grant the preference status. (c)
Limitation on Orphan Petitions Approved for a Single Petitioner,
Prohibition Against Approval in Cases of Marriages Entered into in Order to
Evade Immigration Laws, Restriction on Future Entry of Aliens Involved with
Marriage Fraud ‑ Notwithstanding the provisions of subsection (b) no
petition shall be approved if (1) the alien has previously been accorded or has
sought to be accorded an immediate relative or preference status as the spouse
of a citizen of the United States or the spouse of an alien lawfully admitted
for permanent residence, by reason of a marriage determined by the Attorney
General to have been entered into for the purpose of evading the immigration
laws, or (2) the Attorney General has determined that the alien has attempted or
conspired to enter into a marriage for the purpose of evading the immigration
laws. (d)
Recommendation of Valid Home-Study. Notwithstanding the provisions of
subsections (a) and (b) no petition may be approved on behalf of a child defined
in section 101(b)(1)(F) unless a valid home-study has been favorably recommended
by an agency of the State of the child's proposed residence, or by an agency
authorized by that State to conduct such a study, or, in the case of a child
adopted, by an appropriate public or private adoption agency which is licensed
in the United States. (e)
Subsequent Finding of Non-Entitlement to Preference Classification.
Nothing in this section shall be construed to entitle an immigrant, in behalf of
whom a petition under this section is approved, to be admitted the United States
as an immigrant under subsection (a), (b), or (c) of section 203 or as an
immediate relative under section 201(b) if upon his arrival at a port of entry
in the United States he is found not to be entitled to such classification. (f)
Preferential Treatment for Children Fathered by United States Citizens and Born
in Korea, Vietnam, Laos, Kampuchea, or Thailand After 1950 and Before October 22 1982. (1)
Any alien claiming to be an alien described in paragraph (2)(A) of this
subsection (or any person on behalf of such an alien) may file a petition with
the Attorney General for classification under section 201(b), 203(a)(1), or
203(a)(3), as appropriate. After an investigation of the facts of each case the
Attorney General shall, if the conditions described in paragraph (2) are met,
approve the petition and forward one copy to the Secretary of State.
(2) The Attorney General may approve a petition for an alien under
paragraph (1) if (A)
he has reason to believe that the alien (i) was born in Korea, Vietnam, Laos,
Kampuchea, or Thailand after 1950 and before the date of the enactment of this
subsection [October 22, 1982], and (ii) was fathered by a United States citizen; (B)
he has received an acceptable guarantee of legal custody and financial
responsibility described in paragraph (4); and (C)
in the case of an alien under eighteen years of age, (i) the alien's placement
with a sponsor in the United States has been arranged by an appropriate public,
private, or State child welfare agency licensed in the United States and
actively involved in the inter-country placement of children and (ii) the
alien's mother or guardian has in writing irrevocably released the alien for
emigration. (3)
In considering petitions filed under paragraph (1), the Attorney General shall (A)
consult with appropriate governmental officials and officials of private
voluntary organizations in the country of the alien's birth in order to make the
determinations described in subparagraphs, (A) and (C)(ii) of Paragraph (2); and (B)
consider the physical appearance of the alien and any evidence provided by the
petitioner, including birth and baptismal certificates, local civil records,
photographs of, and letters or proof of financial support from, a putative
father who is a citizen of the United States; and the testimony of witnesses, to
the extent it is relevant or probative. (4)
(A) A guarantee of legal custody and financial responsibility for an
alien described in paragraph (2) must (i)
be signed in the presence of an immigration officer or consular officer by an
individual (hereinafter in this paragraph referred to as the
"sponsor") who is twenty-one years of age or older, is of good moral
character, and is a citizen of the United States or alien lawfully admitted for
permanent residence, and (ii)
provide that the sponsor agrees (1) in the case of an alien under eighteen years
of age, to assume legal custody for the alien after the alien's departure to the
United States and until the alien becomes eighteen years of age, in accordance
with the laws of the State where the alien and the sponsor will reside, and (11)
to furnish, during the five-year period beginning on the date of the alien's
acquiring the status of an alien lawfully admitted for permanent residence, or
during the period beginning on the date of the alien's acquiring the status of
an alien lawfully admitted for permanent residence and ending on the date on
which the alien becomes twenty-one years of age, whichever period is longer,
such financial support as is necessary to maintain the family in the United
States of which the alien is a member at a level equal to at least 125 per
centum of the current official poverty line (as established by the Director of
the Office of Management and Budget, under section 673(2) of the Omnibus Budget
Reconciliation Act of 1981 [42 USC § 9902(2)] and as revised by the Secretary
of Health and Human Services under the second and third sentences of such
section [42 USC § 98471) for a family of the same size as the size of the
alien's family. (B)
A guarantee of legal custody and financial responsibility described in
subparagraph (A) may be enforced with respect to an alien against his sponsor in
a civil suit brought by the Attorney General in the United States district court
for the district in which the sponsor resides, except that a sponsor or his
estate shall not be liable under such a guarantee if the sponsor dies or is
adjudicated a bankrupt under title 11, United States Code. (g)
Restriction on Petitions Based on Marriages Entered While in Exclusion or
Deportation Proceedings. Notwithstanding subsection (a), except as provided in
section 245(e)(3), a petition may not be approved to grant an alien immediate
relative status or preference status by reason of a marriage which was entered
into during the period described in section 245(e)(2), until the alien has
resided outside the United States for a 2-year period beginning after the date
of the marriage. (h) Termination
of Marriage as a Basis for Revocation. The legal termination of a marriage
may not be the sole basis for revocation under section 205 of a petition filed
under subsection (a)(1)(A)(iii) or a petition filed under subsection (a)(1)(B)(ii)
pursuant to conditions described in subsection (a)(1)(A)(iii)(I). (i) Professional Athletes. (1) In general. A petition under subsection (a)(4)(D) for classification of a professional athlete shall remain valid for the athlete after the athlete changes employers, if the new employer is a team in the same sport as the team which was the employer who filed the petition. (2)
Definition. For purposes of paragraph (1), the term "professional
athlete" means an individual who is employed as an athlete by (A)
a team that is a member of an association of 6 or more professional sports teams
whose total combined revenues exceed $10,000,000 per year, if the association
governs the conduct of its members and regulates the contests and exhibitions in
which its member team regularly engage; or
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