Emergency Justification Letter

April 19, 2022

Dominic Mancini, Deputy Administrator

Office of Information and Regulatory Affairs

Office of Management and Budget

Dear Deputy Administrator Mancini,

The Department of State requests Office of Management and Budget (OMB) emergency processing of the proposed amendments and expansion of the respondent pool for DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, (OMB Control Number 1405-0082) to include the surviving spouse and/or children of a deceased U.S. government employee, pursuant to the process established in 5 C.F.R. 1320.13.

The Emergency Security Supplemental Appropriations Act (ESSAA), 2021 was signed into law on July 31, 2021, amending section 101(a)(27)(D) of the Immigration and Nationality Act (INA)to extend eligibility for special immigrant status to the surviving spouse and children of an employee of the United States government abroad, provided the employee performed faithful service for not less than 15 years or was killed in the line of duty regardless of years of service. Pursuant to INA section 204(a)(1)(G)(ii), applicants seeking classification under INA 203(b)(4) to obtain special immigrant status under INA section 101(a)(27)(D) must file a petition with the Secretary of State by submitting Form DS-1884. The current Form DS-1884 was designed to collect information from only living employee applicants applying for Special Immigrant Visas pursuant to INA section 101(a)(27)(D)(i), and consequently, to accommodate this new category of applicants, Form DS-1884 must be amended to collect information about the surviving spouse and children of deceased employees, who can now qualify for SIV status as principal applicants.

Since ESSAA was signed into law last year, the Department’s Bureau of Consular Affairs (CA) has CA learned from overseas Embassy staff of the cases of at least 16 surviving family members whose U.S. government employee family member had recently been killed in the line of duty.

The emergency establishment of an amended DS-1884 form promotes the safety of several Special Immigrant Visa (SIV) applicants who are the surviving family members of deceased U.S. government employees, and who face ongoing harassment and risk to their personal safety as a result of the deceased U.S. government employee’s service. The amended DS-1884 form permits newly qualifying SIV applicants—the surviving spouses and children of deceased employees of the United States government abroad—to apply for Special Immigrant Visas pursuant to INA 101(a)(27)(D)(ii). These applicants are unable to rely on the current form DS-1884, which is intended for use by living employee applicants applying for SIVs, and are therefore unable to obtain the relief that was intended for them under the terms of the Emergency Security Supplemental Appropriations Act of 2021 (ESSAA).

Since ESSAA was signed into law last year, the Department’s Bureau of Consular Affairs (CA) has been preparing the necessary framework for its implementation and the establishment of a new visa class, a complex process that requires close collaboration with other government stakeholders. To do so, CA has represented the Department in inter-agency discussion with U.S. Citizenship & Immigration Services (USCIS) as well as U.S. Customs and Border Protection (USCBP) regarding the scope of eligibility of surviving family members and other relevant details. Since U.S. military’s withdrawal of forces from Afghanistan, in accordance with the February 2020 Joint Declaration between the Islamic Republic of Afghanistan and the United States, there has become an urgent need to expedite implementation of this new authority given the heightened risks and threats to safety of U.S. government employees and the family members of those who have tragically been killed in the line of duty.

During this time, CA also learned from overseas Embassy staff of the cases of surviving family members whose U.S. government employee family member had recently passed away, many from complications of COVID-19. This class of persons is directly impacted by ESSAA, as they are newly eligible to file for Special Immigrant Visas under its provisions. As stated above, however, they have been unable to obtain the relief intended for them due to the deficiencies of the current DS-1884 form, which was intended for completion by living employees of the U.S. government abroad applying for SIVs. Some of these surviving spouses and children face ongoing harassment and risk to their personal safety as a result of the deceased U.S. government employee’s service. In other cases, there are surviving children who risk aging out of eligibility if they reach the age of 21 years before the updated DS-1884 form becomes available. Furthermore, many applicants had already been approved for special immigrant status when their principal applicant family member, the U.S. government employee, was alive; in all cases, the deficiencies of the DS-1884 form, in its current form, present the sole obstacle to filing for relief.

To underscore the urgency of the establishment of a revised DS-1884, there are several consular posts with surviving children who have already aged out since the enactment of the ESSAA, or who will age out this year. In one example, since the U.S. Mission in Sana'a was closed in 2015 and U.S.-Yemen relations were severed, Djibouti—the post responsible for processing surviving spouses and children of Yemeni employees—has reached out regarding surviving families whose SIVs were previously approved while the employees were alive, but who were ineligible to enter the United States following the death of the principal applicant. The time sensitivity of these particular cases is due to their deteriorating security situation, as surviving families are subject to harassment by the Houthis due to their association with the U.S. government. In addition, because a child's age is locked in only when the DS-1884 is filed, some families have children who risk aging out this year upon reaching the age of 21, and at least one child has already turned 21. Since surviving spouses and children must reapply for a new SIV as principal applicants themselves, these families must await the establishment of a new DS-1884 form in order to proceed with their new SIV applications.

Since ESSAA requires surviving family member applicants to apply as principal applicants rather than as derivatives, the surviving family members now need to submit new applications, including new DS-1884s, as principal applicants themselves in order to obtain the relief intended for them. Therefore, we request emergency consideration and approval of this request in order to facilitate the timely processing of this class of applicants, both to ensure their safety and welfare, as well as to prevent surviving children from aging out of eligibility. The urgent processing of these surviving families’ cases is mission critical.

In light of the above the Department has therefore determined that:

1. This collection is needed prior to the expiration of time periods normally associated with a routine submission for review under the provisions of the Paperwork Reduction Act;

2. This collection is essential to the mission of the Department of State; and

3. The use of normal clearance procedures will prevent the Department obtaining this information in a timely manner, thus preventing the Department from processing the surviving spouse and/or child(ren) of a deceased U.S. government employee abroad for several months. Continued delay in the ability of the Department to process these applications will cause unnecessary and irreversible potential harm to the known applicant pool.

Therefore, the Department of State requests emergency OMB processing and approval of this revised information collection by April 22, 2022, to allow for immediate use.