[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR204.4]

[Page 149-152]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 204--IMMIGRANT PETITIONS--Table of Contents
 
Sec. 204.4  Amerasian child of a United States citizen.

    (a) Eligibility. An alien is eligible for benefits under Public Law 
97-359 as the Amerasian child or son or daughter of a United States 
citizen if there is reason to believe that the alien was born in Korea, 
Vietnam, Laos, Kampuchea, or Thailand after December 31, 1950, and 
before October 22, 1982, and was fathered by a United States citizen. 
Such an alien is eligible for classification under sections 201(b), 
203(a)(1), or 203(a)(3) of the Act as the Amerasian child or son or 
daughter of a United States citizen, pursuant to section 204(f) of the 
Act.
    (b) Filing petition. Any alien claiming to be eligible for benefits 
as an Amerasian under Public Law 97-359, or any person on the alien's 
behalf, may file a petition, Form I-360, Petition for Amerasian, Widow, 
or Special Immigrant. Any person filing the petition must either be 
eighteen years of age or older or be an emancipated minor. In addition, 
a corporation incorporated in the United States may file the petition on 
the alien's behalf.

[[Page 150]]

    (c) Jurisdiction. The petition must be filed with the Service office 
having jurisdiction over the place of the alien's intended residence in 
the United States or with the overseas Service office having 
jurisdiction over the alien's residence abroad.
    (d) Two-stage processing--(1) Preliminary processing. Upon initial 
submission of a petition with the documentary evidence required in 
paragraph (f)(1) of this section, the director shall adjudicate the 
petition to determine whether there is reason to believe the beneficiary 
was fathered by a United States citizen. If the preliminary processing 
is completed in a satisfactory manner, the director shall advise the 
petitioner to submit the documentary evidence required in paragraph 
(f)(1) of this section and shall fingerprint the sponsor in accordance 
with Sec. 103.2(e) of this chapter. The petitioner must submit all 
required documents within one year of the date of the request or the 
petition will be considered to have been abandoned. To reactivate an 
abandoned petition, the petitioner must submit a new petition, Form I-
360, without the previously submitted documentation, to the Service 
office having jurisdiction over the prior petition.
    (2) Final processing. Upon submission of the documentary evidence 
required in paragraph (f)(1) of this section, the director shall 
complete the adjudication of the petition.
    (e) One-stage processing. If all documentary evidence required in 
paragraph (f)(1) of this section is available when the petition is 
initially filed, the petitioner may submit it at that time. In that 
case, the director shall consider all evidence without using the two-
stage processing procedure set out in paragraph (d) of this section.
    (f) Evidence to support a petition for an Amerasian child of a 
United States citizen--(1) Two-stage processing of petition--(i) 
Preliminary processing. (A) A petition filed by or on behalf of an 
Amerasian under this section must be accompanied by evidence that the 
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand 
after December 31, 1950, and before October 22, 1982. If the beneficiary 
was born in Vietnam, the beneficiary's ID card must be submitted, if 
available. If it is not available, the petitioner must submit an 
affidavit explaining why the beneficiary's ID card is not available. 
Evidence that the beneficiary was fathered by a United States citizen 
must also be presented. The putative father must have been a United 
States citizen at the time of the beneficiary's birth or at the time of 
the father's death, if his death occurred prior to the beneficiary's 
birth. It is not required that the name of the father be given. Such 
evidence may include, but need not be limited to:
    (1) The beneficiary's birth and baptismal certificates or other 
religious documents;
    (2) Local civil records;
    (3) Affidavits from knowledgeable witnesses;
    (4) Letters or evidence of financial support from the beneficiary's 
putative father;
    (5) Photographs of the beneficiary's putative father, especially 
with the beneficiary; and
    (6) Evidence of the putative father's United States citizenship.
    (B) The beneficiary's photograph must be submitted.
    (C) The beneficiary's marriage certificate, if married, and evidence 
of the termination of any previous marriages, if applicable, is 
required.
    (D) If the beneficiary is under eighteen years of age, a written 
irrevocable release for emigration must be received from the 
beneficiary's mother or legal guardian. The mother or legal guardian 
must authorize the placing agency or agencies to make decisions 
necessary for the child's immediate care until the sponsor receives 
custody. Interim costs are the responsibility of the sponsor. The mother 
or legal guardian must show an understanding of the effects of the 
release and state before signing the release whether any money was paid 
or any coercion was used. The signature of the mother or legal guardian 
must be authenticated by the local registrar, the court of minors, or a 
United States immigration or consular officer. The release must include 
the mother's or legal guardian's full name, date and place of birth, and 
current or permanent address.

[[Page 151]]

    (ii) Final processing. (A) If the director notifies the petitioner 
that all preliminary processing has been completed in a satisfactory 
manner, the petitioner must then submit Form I-361, Affidavit of 
Financial Support and Intent to Petition for Legal Custody for Public 
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with 
the documentary evidence of the sponsor's financial ability required by 
that form. If the beneficiary is under eighteen years of age, the 
sponsor must agree to petition the court having jurisdiction, within 
thirty days of the beneficiary's arrival in the United States, for legal 
custody under the laws of the state where the beneficiary will reside 
until the beneficiary is eighteen years of age. The term ``legal 
custody'' as used in this section means the assumption of responsibility 
for a minor by an adult under the laws of the state in a court of law. 
The sponsor must be a United States citizen or lawful permanent resident 
who is twenty-one years of age or older and who is of good moral 
character.
    (B) Other documents necessary to support the petition are:
    (1) Evidence of the age of the beneficiary's sponsor;
    (2) Evidence of United States citizenship or lawful permanent 
residence of the sponsor as provided in Sec. 204.1(f); and
    (C) If the beneficiary is under eighteen years of age, evidence that 
a public, private, or state agency licensed in the United States to 
place children and actively involved, with recent experience, in the 
intercountry placement of children has arranged the beneficiary's 
placement in the United States. Evidence must also be provided that the 
sponsor with whom the beneficiary is being placed is able to accept the 
beneficiary for care in the sponsor's home under the laws of the state 
of the beneficiary's intended residence. The evidence must demonstrate 
the agency's capability, including financial capability, to arrange the 
placement as described in paragraph (f)(1) of this section, either 
directly or through cooperative agreement with other suitable 
provider(s) of service.
    (iii) Arrangements for placement of beneficiary under eighteen years 
of age. (A) If the beneficiary is under eighteen years of age, the 
petitioner must submit evidence of the placement arrangement required 
under paragraph (f)(1) of this section. A favorable home study of the 
sponsor is necessary and must be conducted by an agency in the United 
States legally authorized to conduct that study. If the sponsor resides 
outside the United States, a home study of the sponsor must be conducted 
by an agency legally authorized to conduct home studies in the state of 
the sponsor's and beneficiary's intended residence in the United States 
and must be submitted with a favorable recommendation by the agency.
    (B) A plan from the agency to provide follow-up services, including 
mediation and counselling, is required to ensure that the sponsor and 
the beneficiary have satisfactorily adjusted to the placement and to 
determine whether the terms of the sponsorship are being observed. A 
report from the agency concerning the placement, including information 
regarding any family separation or dislocation abroad that results from 
the placement, must also be submitted. In addition, the agency must 
submit to the Director, Outreach Program, Immigration and Naturalization 
Service, Washington, DC, within 90 days of each occurrence, reports of 
any breakdowns in sponsorship that occur, and reports of the steps taken 
to remedy these breakdowns. The petitioner must also submit a statement 
from the agency:
    (1) Indicating that, before signing the sponsorship agreement, the 
sponsor has been provided a report covering pre-placement screening and 
evaluation, including a health evaluation, of the beneficiary;
    (2) Describing the agency's orientation of both the sponsor and the 
beneficiary on the legal and cultural aspects of the placement;
    (3) Describing the initial facilitation of the placement through 
introduction, translation, and similar services; and
    (4) Describing the contingency plans to place the beneficiary in 
another suitable home if the initial placement fails. The new sponsor 
must execute and submit a Form I-361 to the Service office having 
jurisdiction over the beneficiary's residence in the United

[[Page 152]]

States. The original sponsor nonetheless retains financial 
responsibility for the beneficiary under the terms of the guarantee of 
financial support and intent to petition for legal custody which that 
sponsor executed, unless that responsibility is assumed by a new 
sponsor. In the event that the new sponsor does not comply with the 
terms of the new guarantee of financial support and intent to petition 
for legal custody and if, for any reason, that guarantee is not 
enforced, the original sponsor again becomes financially responsible for 
the beneficiary.
    (2) One-stage processing of petition. If the petitioner chooses to 
have the petition processed under the one-stage processing procedure 
described in paragraph (e) of this section, the petitioner must submit 
all evidence required by paragraph (f)(1) of this section.
    (g) Decision--(1) General. The director shall notify the petitioner 
of the decision and, if the petition is denied, of the reasons for the 
denial. If the petition is denied, the petitioner may appeal the 
decision under part 103 of this chapter.
    (2) Denial upon completion of preliminary processing. The director 
may deny the petition upon completion of the preliminary processing 
under paragraph (d) of this section for:
    (i) Failure to establish that there is reason to believe the alien 
was fathered by a United States citizen; or
    (ii) Failure to meet the sponsorship requirements if the 
fingerprints of the sponsor, required in paragraph (f)(1) of this 
section, were submitted during the preliminary processing and the 
completed background check of the sponsor discloses adverse information 
resulting in a finding that the sponsor is not of good moral character.
    (3) Denial upon completion of final processing. The director may 
deny the petition upon completion of final processing if it is 
determined that the sponsorship requirements, or one or more of the 
other applicable requirements, have not been met.
    (4) Denial upon completion of one-stage processing. The director may 
deny the petition upon completion of all processing if any of the 
applicable requirements in a case being processed under the one-stage 
processing described in paragraph (e) of this section are not met.
    (h) Classification of Public Law 97-359 Amerasian. If the petition 
is approved the beneficiary is classified as follows:
    (1) An unmarried beneficiary under the age of twenty-one is 
classified as the child of a United States citizen under section 201(b) 
of the Act;
    (2) An unmarried beneficiary twenty-one years of age or older is 
classified as the unmarried son or daughter of a United States citizen 
under section 203(a)(1) of the Act; and
    (3) A married beneficiary is classified as the married son or 
daughter of a United States citizen under section 203(a)(3) of the Act.
    (i) Enforcement of affidavit of financial support and intent to 
petition for legal custody. A guarantee of financial support and intent 
to petition for legal custody on Form I-361 may be enforced against the 
alien's 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 the sponsor's estate is not liable under the 
guarantee if the sponsor dies or is adjudicated as bankrupt under title 
11, United States Code. After admission to the United States, if the 
beneficiary of a petition requires enforcement of the guarantee of 
financial support and intent to petition for legal custody executed by 
the beneficiary's sponsor, the beneficiary may file Form I-363 with the 
Service office having jurisdiction over the beneficiary's residence in 
the United States. If the beneficiary is under eighteen years of age, 
any agency or individual (other than the sponsor) having legal custody 
of the beneficiary, or a legal guardian acting on the alien's behalf, 
may file Form I-363.

[57 FR 41066, Sept. 9, 1992, as amended at 63 FR 12986, Mar. 17, 1998]