CFR-2012-title8-vol1-sec103-2

Pt. 103

8 CFR Ch. I (1–1–12 Edition)
ing its submission. Each benefit request or other document must be filed
with fee(s) as required by regulation.
Benefit requests which require a person
to submit biometric information must
also be filed with the biometric service
fee in 8 CFR 103.7(b)(1), for each individual who is required to provide biometrics. Filing fees and biometric service fees are non-refundable and, except
as otherwise provided in this chapter I,
must be paid when the benefit request
is filed.
(2) Signature. An applicant or petitioner must sign his or her benefit request. However, a parent or legal
guardian may sign for a person who is
less than 14 years old. A legal guardian
may sign for a mentally incompetent
person. By signing the benefit request,
the applicant or petitioner, or parent
or guardian certifies under penalty of
perjury that the benefit request, and
all evidence submitted with it, either
at the time of filing or thereafter, is
true and correct. Unless otherwise
specified in this chapter, an acceptable
signature on an benefit request that is
being filed with the USCIS is one that
is either handwritten or, for benefit requests filed electronically as permitted
by the instructions to the form, in
electronic format.
(3) Representation. An applicant or petitioner may be represented by an attorney in the United States, as defined
in § 1.2 of this chapter, by an attorney
outside the United States as defined in
§ 292.1(a)(6) of this chapter, or by an accredited representative as defined in
§ 292.1(a)(4) of this chapter. A beneficiary of a petition is not a recognized
party in such a proceeding. An benefit
request presented in person by someone
who is not the applicant or petitioner,
or his or her representative as defined
in this paragraph, shall be treated as if
received through the mail, and the person advised that the applicant or petitioner, and his or her representative,
will be notified of the decision. Where
a notice of representation is submitted
that is not properly signed, the benefit
request will be processed as if the notice had not been submitted.
(4) Oath. Any required oath may be
administered by an immigration officer
or person generally authorized to administer oaths, including persons so

PART 103—IMMIGRATION BENEFITS;
BIOMETRIC
REQUIREMENTS;
AVAILABILITY OF RECORDS
Subpart A— Applying for Benefits, Surety
Bonds, Fees
Sec.
103.1 [Reserved]
103.2 Submission and adjudication of benefit requests.
103.3 Denials, appeals, and precedent decisions.
103.4 Certifications.
103.5 Reopening or reconsideration.
103.6 Surety bonds.
103.7 Fees.
103.8 Service of decisions and other notices.
103.9 Request for further action on an approved benefit request.
103.10 Precedent decisions.

Subpart B—Biometric Requirements
103.16 Collection, use and storage of biometric information.
103.17 Biometric service fee.
§ § 103.20–103.36 [Reserved]

Subpart C—[Reserved]
Subpart D—Availability of Records
103.38 Genealogy Program.
103.39 Historical Records.
103.40 Genealogical research requests.
103.41 Genealogy request fees.
103.42 Rules relating to the Freedom of Information Act (FOIA) and the Privacy
Act.
AUTHORITY: 5 U.S.C. 301, 552, 552a; 8 U.S.C.
1101, 1103, 1304, 1356; 31 U.S.C. 9701; 48 U.S.C.
1806; Public Law 107–296, 116 Stat. 2135 (6
U.S.C. 1 et seq.), E.O. 12356, 47 FR 14874, 15557,
3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
SOURCE: 40 FR 44481, Sept. 26, 1975, unless
otherwise noted.

Subpart A—Applying for Benefits,
Surety Bonds, Fees

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§ 103.1

[Reserved]

§ 103.2 Submission and adjudication of
benefit requests.
(a) Filing. (1) Preparation and submission. Every benefit request or other
document submitted to DHS must be
executed and filed in accordance with
the form instructions, notwithstanding
any provision of 8 CFR chapter 1 to the
contrary, and such instructions are incorporated into the regulations requir-

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Department of Homeland Security

§ 103.2

authorized by Article 136 of the Uniform Code of Military Justice.
(5) Translation of name. If a document
has been executed in an anglicized
version of a name, the native form of
the name may also be required.
(6) Where to file. All benefit requests
must be filed in accordance with the
form instructions.
(7) Receipt date. (i) Benefit requests
submitted. A benefit request which is
not signed and submitted with the correct fee(s) will be rejected. A benefit
request that is not executed may be rejected. Except as provided in 8 CFR
parts 204, 245, or 245a, a benefit request
will be considered received by USCIS
as of the actual date of receipt at the
location designated for filing such benefit request whether electronically or
in paper format. The receipt date shall
be recorded upon receipt by USCIS.
(ii) Non-payment. If a check or other
financial instrument used to pay a filing fee is subsequently returned as not
payable, the remitter shall be notified
and requested to pay the filing fee and
associated service charge within 14 calendar days, without extension. If the
benefit request is pending and these
charges are not paid within 14 days, the
benefit request shall be rejected as improperly filed. If the benefit request
was already approved, and these
charges are not paid, the approval shall
be automatically revoked because it
was improperly field. If the benefit request was already denied, revoked, or
abandoned, that decision will not be affected by the non-payment of the filing
or fingerprinting fee. New fees will be
required with any new benefit request.
Any fee and service charges collected
as the result of collection activities or
legal action on the prior benefit request shall be used to cover the cost of
the previous rejection, revocation, or
other action.
(iii) Rejected benefit requests. A benefit
request which is rejected will not retain a filing date. There is no appeal
from such rejection.
(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she
is eligible for the requested benefit at
the time of filing the benefit request
and must continue to be eligible
through adjudication. Each benefit re-

quest must be properly completed and
filed with all initial evidence required
by applicable regulations and other
USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.
(2) Submitting secondary evidence and
affidavits—(i) General. The non-existence or other unavailability of required
evidence creates a presumption of ineligibility. If a required document,
such as a birth or marriage certificate,
does not exist or cannot be obtained,
an applicant or petitioner must demonstrate this and submit secondary
evidence, such as church or school
records, pertinent to the facts at issue.
If secondary evidence also does not
exist or cannot be obtained, the applicant or petitioner must demonstrate
the unavailability of both the required
document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons
who are not parties to the petition who
have direct personal knowledge of the
event and circumstances. Secondary
evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability
of both primary and secondary evidence.
(ii) Demonstrating that a record is not
available. Where a record does not
exist, the applicant or petitioner must
submit an original written statement
on government letterhead establishing
this from the relevant government or
other authority. The statement must
indicate the reason the record does not
exist, and indicate whether similar
records for the time and place are
available. However, a certification
from an appropriate foreign government that a document does not exist is
not required where the Department of
State’s Foreign Affairs Manual indicates this type of document generally
does not exist. An applicant or petitioner who has not been able to acquire
the necessary document or statement
from the relevant foreign authority
may submit evidence that repeated
good faith attempts were made to obtain the required document or statement. However, where USCIS finds
that such documents or statements are
generally available, it may require

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§ 103.2

8 CFR Ch. I (1–1–12 Edition)

that the applicant or petitioner submit
the required document or statement.
(iii) Evidence provided with a self-petition filed by a spouse or child of abusive
citizen or resident. The USCIS will consider any credible evidence relevant to
a self-petition filed by a qualified
spouse or child of an abusive citizen or
lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the
Act. The self-petitioner may, but is not
required to, demonstrate that preferred
primary or secondary evidence is unavailable. The determination of what
evidence is credible and the weight to
be given that evidence shall be within
the sole discretion of USCIS.
(3) Translations. Any document containing foreign language submitted to
USCIS shall be accompanied by a full
English language translation which the
translator has certified as complete
and accurate, and by the translator’s
certification that he or she is competent to translate from the foreign
language into English.
(4) Supporting documents. Original or
photocopied documents which are required to support any benefit request
must be submitted in accordance with
the form instructions.
(5) Request for an original document.
USCIS may, at any time, request submission of an original document for review. The request will set a deadline
for submission of the original document. Failure to submit the requested
original document by the deadline may
result in denial or revocation of the underlying benefit request. An original
document submitted in response to
such a request, when no longer required by USCIS, will be returned to
the petitioner or applicant upon completion of the adjudication. If USCIS
does not return an original document
within a reasonable time after completion of the adjudication, the petitioner
or applicant may request return of the
original document in accordance with
instructions provided by USCIS.
(6) Withdrawal. An applicant or petitioner may withdraw an benefit request at any time until a decision is
issued by USCIS or, in the case of an
approved petition, until the person is
admitted or granted adjustment or
change of status, based on the petition.

However, a withdrawal may not be retracted.
(7) Testimony. The USCIS may require
the taking of testimony, and may direct any necessary investigation. When
a statement is taken from and signed
by a person, he or she shall, upon request, be given a copy without fee. Any
allegations made subsequent to filing
an benefit request which are in addition to, or in substitution for, those
originally made, shall be filed in the
same manner as the original benefit request, or document, and acknowledged
under oath thereon.
(8) Request for Evidence; Notice of Intent to Deny—(i) Evidence of eligibility or
ineligibility. If the evidence submitted
with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in
which the applicable statute or regulation makes the approval of a benefit request a matter entrusted to USCIS discretion, USCIS will approve the benefit
request only if the evidence of record
establishes both eligibility and that
the petitioner or applicant warrants a
favorable exercise of discretion. If the
record evidence establishes ineligibility, the benefit request will be denied on that basis.
(ii) Initial evidence. If all required initial evidence is not submitted with the
benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request
for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a
specified period of time as determined
by USCIS.
(iii) Other evidence. If all required initial evidence has been submitted but
the evidence submitted does not establish eligibility, USCIS may: deny the
benefit request for ineligibility; request more information or evidence
from the applicant or petitioner, to be
submitted within a specified period of
time as determined by USCIS; or notify
the applicant or petitioner of its intent
to deny the benefit request and the
basis for the proposed denial, and require that the applicant or petitioner
submit a response within a specified
period of time as determined by USCIS.

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Department of Homeland Security

§ 103.2

(iv) Process. A request for evidence or
notice of intent to deny will be communicated by regular or electronic mail
and will specify the type of evidence
required, and whether initial evidence
or additional evidence is required, or
the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient
information to respond. The request for
evidence or notice of intent to deny
will indicate the deadline for response,
but in no case shall the maximum response period provided in a request for
evidence exceed twelve weeks, nor
shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be
granted.
(9) Request for appearance. An applicant, a petitioner, a sponsor, a beneficiary, or other individual residing in
the United States at the time of filing
an benefit request may be required to
appear for fingerprinting or for an
interview. A petitioner shall also be
notified when a fingerprinting notice
or an interview notice is mailed or
issued to a beneficiary, sponsor, or
other individual. The applicant, petitioner, sponsor, beneficiary, or other
individual may appear as requested by
USCIS, or prior to the dates and times
for fingerprinting or of the date and
time of interview:
(i) The individual to be fingerprinted
or interviewed may, for good cause, request that the fingerprinting or interview be rescheduled; or
(ii) The applicant or petitioner may
withdraw the benefit request.
(10) Effect of a request for initial or additional evidence for fingerprinting or
interview rescheduling—(i) Effect on processing. The priority date of a properly
filed petition shall not be affected by a
request for missing initial evidence or
request for other evidence. If an benefit
request is missing required initial evidence, or an applicant, petitioner,
sponsor, beneficiary, or other individual who requires fingerprinting requests that the fingerprinting appointment or interview be rescheduled, any
time period imposed on USCIS processing will start over from the date of
receipt of the required initial evidence

or request for fingerprint or interview
rescheduling. If USCIS requests that
the applicant or petitioner submit additional evidence or respond to other
than a request for initial evidence, any
time limitation imposed on USCIS for
processing will be suspended as of the
date of request. It will resume at the
same point where it stopped when
USCIS receives the requested evidence
or response, or a request for a decision
based on the evidence.
(ii) Effect on interim benefits. Interim
benefits will not be granted based on
an benefit request held in suspense for
the submission of requested initial evidence, except that the applicant or
beneficiary will normally be allowed to
remain while an benefit request to extend or obtain status while in the
United States is pending. The USCIS
may choose to pursue other actions to
seek removal of a person notwithstanding the pending application. Employment authorization previously accorded based on the same status and
employment as that requested in the
current benefit request may continue
uninterrupted as provided in 8 CFR
274a.12(b)(20) during the suspense period.
(11) Responding to a request for evidence or notice of intent to deny. In response to a request for evidence or a
notice of intent to deny, and within the
period afforded for a response, the applicant or petitioner may: submit a
complete response containing all requested information at any time within the period afforded; submit a partial
response and ask for a decision based
on the record; or withdraw the benefit
request. All requested materials must
be submitted together at one time,
along with the original USCIS request
for evidence or notice of intent to
deny. Submission of only some of the
requested evidence will be considered a
request for a decision on the record.
(12) Effect where evidence submitted in
response to a request does not establish
eligibility at the time of filing. An benefit
request shall be denied where evidence
submitted in response to a request for
evidence does not establish filing eligibility at the time the benefit request
was filed. An benefit request shall be
denied where any benefit request upon

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§ 103.2

8 CFR Ch. I (1–1–12 Edition)

which it was based was filed subsequently.
(13) Effect of failure to respond to a request for evidence or a notice of intent to
deny or to appear for interview or biometrics capture—(i) Failure to submit evidence or respond to a notice of intent to
deny. If the petitioner or applicant fails
to respond to a request for evidence or
to a notice of intent to deny by the required date, the benefit request may be
summarily denied as abandoned, denied
based on the record, or denied for both
reasons. If other requested material
necessary to the processing and approval of a case, such as photographs,
are not submitted by the required date,
the application may be summarily denied as abandoned.
(ii) Failure to appear for biometrics capture, interview or other required in-person
process. Except as provided in 8 CFR
335.6, if USCIS requires an individual to
appear for biometrics capture, an interview, or other required in-person process but the person does not appear, the
benefit request shall be considered
abandoned and denied unless by the appointment time USCIS has received a
change of address or rescheduling request that the agency concludes warrants excusing the failure to appear.
(14) Effect of request for decision.
Where an applicant or petitioner does
not submit all requested additional
evidence and requests a decision based
on the evidence already submitted, a
decision shall be issued based on the
record. Failure to submit requested
evidence which precludes a material
line of inquiry shall be grounds for denying the benefit request. Failure to
appear for required fingerprinting or
for a required interview, or to give required testimony, shall result in the
denial of the related benefit request.
(15) Effect of withdrawal or denial due
to abandonment. The USCIS acknowledgement of a withdrawal may not be
appealed. A denial due to abandonment
may not be appealed, but an applicant
or petitioner may file a motion to reopen under § 103.5. Withdrawal or denial
due to abandonment does not preclude
the filing of a new benefit request with
a new fee. However, the priority or
processing date of a withdrawn or
abandoned benefit request may not be
applied to a later application petition.

Withdrawal or denial due to abandonment shall not itself affect the new
proceeding; but the facts and circumstances surrounding the prior benefit request shall otherwise be material
to the new benefit request.
(16) Inspection of evidence. An applicant or petitioner shall be permitted to
inspect the record of proceeding which
constitutes the basis for the decision,
except as provided in the following
paragraphs.
(i) Derogatory information unknown to
petitioner or applicant. If the decision
will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and
of which the applicant or petitioner is
unaware, he/she shall be advised of this
fact and offered an opportunity to
rebut the information and present information in his/her own behalf before
the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and
(iv) of this section. Any explanation,
rebuttal, or information presented by
or in behalf of the applicant or petitioner shall be included in the record of
proceeding.
(ii) Determination of statutory eligibility. A determination of statutory eligibility shall be based only on information contained in the record of proceeding which is disclosed to the applicant or petitioner, except as provided
in paragraph (b)(16)(iv) of this section.
(iii)
Discretionary
determination.
Where an application may be granted
or denied in the exercise of discretion,
the decision to exercise discretion favorably or unfavorably may be based in
whole or in part on classified information not contained in the record and
not made available to the applicant,
provided the USCIS Director or his or
her designee has determined that such
information is relevant and is classified under Executive Order No. 12356 (47
FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in
the interest of national security.
(iv) Classified information. An applicant or petitioner shall not be provided
any information contained in the
record or outside the record which is
classified under Executive Order No.
12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized
disclosure in the interest of national

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Department of Homeland Security

§ 103.2

security, unless the classifying authority has agreed in writing to such disclosure. Whenever he/she believes he/
she can do so consistently with safeguarding both the information and its
source, the USCIS Director or his or
her designee should direct that the applicant or petitioner be given notice of
the general nature of the information
and an opportunity to offer opposing
evidence. The USCIS Director’s or his
or her designee’s authorization to use
such classified information shall be
made a part of the record. A decision
based in whole or in part on such classified information shall state that the
information is material to the decision.
(17) Verifying claimed permanent resident status—(i) Department records. The
status of an applicant or petitioner
who claims that he or she is a permanent resident of the United States or
was formerly a permanent resident of
the United States will be verified from
official Department records. These
records include alien and other files,
arrival manifests, arrival records, Department index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued
after July 1, 1929, Permanent Resident
Cards, or other registration receipt
forms (provided that such forms were
issued or endorsed to show admission
for permanent residence), passports,
and reentry permits. An official record
of a Department index card must bear
a designated immigrant visa symbol
and must have been prepared by an authorized official of the Department in
the course of processing immigrant admissions or adjustments to permanent
resident status. Other cards, certificates, declarations, permits, and passports must have been issued or endorsed to show admission for permanent residence. Except as otherwise
provided in 8 CFR part 101, and in the
absence of countervailing evidence,
such official records will be regarded as
establishing lawful admission for permanent residence.
(ii) Assisting self-petitioners who are
spousal-abuse victims. If a self-petitioner
filing
a
petition
under
section
204(a)(1)(A)(iii),
204(a)(1)(A)(iv),
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the
Act is unable to present primary or

secondary evidence of the abuser’s status, USCIS will attempt to electronically verify the abuser’s citizenship or
immigration status from information
contained in the Department’s automated or computerized records. Other
Department records may also be reviewed at the discretion of the adjudicating officer. If USCIS is unable to
identify a record as relating to the
abuser, or the record does not establish
the abuser’s immigration or citizenship
status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.
(18) Withholding adjudication. A district director may authorize withholding adjudication of a visa petition
or other application if the district director determines that an investigation has been undertaken involving a
matter relating to eligibility or the exercise of discretion, where applicable,
in connection with the benefit request,
and that the disclosure of information
to the applicant or petitioner in connection with the adjudication of the
benefit request would prejudice the ongoing investigation. If an investigation
has been undertaken and has not been
completed within one year of its inception, the district director shall review
the matter and determine whether adjudication of the benefit request should
be held in abeyance for six months or
until the investigation is completed,
whichever comes sooner. If, after six
months of the district director’s determination, the investigation has not
been completed, the matter shall be reviewed again by the district director
and, if he/she concludes that more time
is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If
the investigation is not completed at
the end of that time, the matter shall
be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations,
with the concurrence of the Associate
Commissioner, Enforcement, determines it is necessary to continue to
withhold adjudication pending completion of the investigation, he/she shall
review that determination every six
months.

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§ 103.3

8 CFR Ch. I (1–1–12 Edition)

(19) Notification of decision. The Service will notify applicants, petitioners,
and their representatives as defined in
8 CFR part 1 in writing of a decision
made on a benefit request. Documents
issued based on the approval of a request for benefits will be sent to the
applicant or petitioner.
(c)–(d) [Reserved]

ney or representative in accordance
with part 292 of this chapter.
(C) Record of proceeding. An appeal
and any cross-appeal or briefs become
part of the record of proceeding.
(D) Appeal filed by Service officer in
case within jurisdiction of Board. If an
appeal is filed by a Service officer, a
copy must be served on the affected
party.
(iv) Function of Administrative Appeals
Unit (AAU). The AAU is the appellate
body which considers cases under the
appellate jurisdiction of the Associate
Commissioner, Examinations.
(v) Summary dismissal. An officer to
whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of
law or statement of fact for the appeal.
The filing by an attorney or representative accredited under 8 CFR 292.2(d) of
an appeal which is summarily dismissed under this section may constitute frivolous behavior as defined in
8 CFR 292.3(a)(15). Summary dismissal
of an appeal under § 103.3(a)(1)(v) in no
way limits the other grounds and procedures for disciplinary action against
attorneys or representatives provided
in 8 CFR 292.2 or in any other statute
or regulation.
(2) AAU appeals in other than special
agricultural worker and legalization
cases—(i) Filing appeal. The affected
party must submit an appeal on Form
I–290B. Except as otherwise provided in
this chapter, the affected party must
pay the fee required by § 103.7 of this
part. The affected party must submit
the complete appeal including any supporting brief as indicated in the applicable form instructions within 30 days
after service of the decision.
(ii) Reviewing official. The official
who made the unfavorable decision
being appealed shall review the appeal
unless the affected party moves to a
new jurisdiction. In that instance, the
official who has jurisdiction over such
a proceeding in that geographic location shall review it.
(iii) Favorable action instead of forwarding appeal to AAU. The reviewing
official shall decide whether or not favorable action is warranted. Within 45
days of receipt of the appeal, the reviewing official may treat the appeal

[29 FR 11956, Aug. 21, 1964]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 103.2, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

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EDITORIAL NOTE: At 72 FR 19106, Apr. 17,
2007, § 103.2 (d)(2) was amended by revising
the terms ‘‘the Service’’ or ‘‘Service’’ to read
‘‘USCIS’’; however, the amendment could
not be incorporated because paragraph (d)(2)
was removed and reserved.

§ 103.3 Denials, appeals, and precedent
decisions.
(a) Denials and appeals—(1) General—
(i) Denial of application or petition.
When a Service officer denies an application or petition filed under § 103.2 of
this part, the officer shall explain in
writing the specific reasons for denial.
If Form I–292 (a denial form including
notification of the right of appeal) is
used to notify the applicant or petitioner, the duplicate of Form I–292 constitutes the denial order.
(ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and other types of cases may be
appealed. Decisions under the appellate
jurisdiction of the Board of Immigration Appeals (Board) are listed in
§ 3.1(b) of this chapter. Decisions under
the appellate jurisdiction of the Associate Commissioner, Examinations, are
listed in § 103.1(f)(2) of this part.
(iii) Appeal—(A) Jurisdiction. When an
unfavorable decision may be appealed,
the official making the decision shall
state the appellate jurisdiction and
shall furnish the appropriate appeal
form.
(B) Meaning of affected party. For purposes of this section and §§ 103.4 and
103.5 of this part, affected party (in addition to the Service) means the person
or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. An affected
party may be represented by an attor-

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