Visas: Special Immigrant Visas-U.S. Government Employee Special Immigrant Visas for Service Abroad
| Published date | 16 June 2020 |
| Citation | 85 FR 36323 |
| Record Number | 2020-12344 |
| Section | Rules and Regulations |
| Court | State Department |
Federal Register, Volume 85 Issue 116 (Tuesday, June 16, 2020)
[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.
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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.
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\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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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\
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\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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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.
* * * * *
0
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
