[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR204.4]



[Page 103-106]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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.

    (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



[[Page 104]]



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.

    (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



[[Page 105]]



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 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



[[Page 106]]



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]