Visas: Special Immigrant Visas-U.S. Government Employee Special Immigrant Visas for Service Abroad

<RULE> DEPARTMENT OF STATE <CFR>22 CFR Part 42</CFR> <DEPDOC>[Public Notice: 12446]</DEPDOC> <RIN>RIN 1400-AF82</RIN> <SUBJECT>Visas: Special Immigrant Visas—U.S. Government Employee Special Immigrant Visas for Service Abroad</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of State. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This final rule makes updates to reflect a statutory change to the class of individuals who may qualify for Special Immigrant Visas (SIVs). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective December 10, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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, <E T="03">VisaRegs@state.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">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</HD> <HD SOURCE="HD2">A. Legal Authority</HD> 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: <E T="03">Provided,</E> [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. <HD SOURCE="HD2">B. Processing for Special Immigrants Under INA Section 101(a)(27)(D)</HD> 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. <HD SOURCE="HD2">C. What is the impact of the ESSAA?</HD> 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. <HD SOURCE="HD1">II. Changes the Department Is Making</HD> <HD SOURCE="HD2">A. 22 CFR 42.11</HD> 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). <HD SOURCE="HD2">B. 22 CFR 42.34</HD> 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 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 deceas ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 37k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━