EB4 Special Immigrant Classification for Long-Term International Organization Employees and Family

 

Introduction: EB4 Special Immigrant Classification for International Organization Employees

EB4 Special ImmigrantCertain long-term international employees on G4 status and NATO-6 status and immediate relatives are eligible to obtain immigrant visas in the EB4 special immigrant category. In this article, we will review the statutes, regulations, and agency guidance regarding EB4 eligibility for certain long-term international organization employees and their immediate relatives.

Statutory Background for G4 and N Nonimmigrants

Eligibility for immigrant visas in the EB4 preference category for certain G4 and N nonimmigrants is found in section 101(a)(27)(I) of the Immigration and Nationality Act (INA).

Unmarried Sons and Daughters of G4 Officers or Employees

Section 101(a)(27)(I)(i) applies to “an immigrant who is the unmarried son or daughter of an officer or employee, or of a former officer or employee, of an international organization described in section 101(a)(15)(G)(iv) [describing G4 status].

Such an alien must meet the following requirements in order to be eligible for an immigrant visa or for adjustment of status:

  • While maintaining nonimmigrant status, have resided and been physically present in the United States for at least one half of the last 7 years prior to filing for an immigrant visa or for adjustment of status;
  • Have been physically present in the United States for at least 7 years in the aggregate between the ages of 5 and 21; and
  • Apply for an immigrant visa or adjustment of status no later than by his or her 25th birthday.

In order to be classifiable as an EB4 special immigrant, the son or daughter of a G4 officer or employee must be unmarried, meet the residency and physical presence requirements, and seek an immigrant visa or adjustment of status before his or her 25th birthday.

Surviving Spouses of G4 Officers or Employees

Section 101(a)(27)(I)(ii) apples to “an immigrant who is the surviving spouse of a deceased officer or employee of such an international organization” (G4 nonimmigrant).

Such an alien must meet the following requirements in order to be eligible for an immigrant visa or for adjustment of status:

  • While maintaining G4 or N nonimmigrant status, have resided and been physically present in the United Sates for at least one half of the last 7 years prior to filing for an immigrant visa or for adjustment of status;
  • Have been physically present in the United States for at least 15 years in the aggregate before the death of the G4 spouse; and
  • File a Form I-360 , Petition for Amerasian, Widow(er), or Special Immigrant within 6 months of the death of the spouse.

A surviving spouse of a G4 officer or employee must meet certain physical presence requirements and file the Form I-360 within 6 months of the death of the G4 spouse in order to be eligible for EB4 special immigrant classification.

Retired G4 Officers or Employees

Section 101(a)(27)(I)(iii) applies to “an immigrant who is a retired officer or employee of such an international organization” (G4 nonimmigrant).

Such an alien must meet the following requirements in order to be eligible for an immigrant visa or for adjustment of status:

  • While maintaining G4 status, have resided and been physically present in the United States for at least one half of the last 7 years prior to filing for an immigrant visa or for adjustment of status;
  • Have been physically presented in the United States for at least 15 years in the aggregate prior to retirement; and
  • File a Form I-360 , Petition for Amerasian, Widow(er), or Special Immigrant within 6 months of retirement.

Under section 101(a)(27)(I)(iii), “an immigrant who is the spouse of a retired officer or employee accorded the status of special immigrant [], accompanying or following to join such retired officer or employee as a member of his immediate family” is eligible under the same rules described in section 101(a)(27)(I)(iii).

It is important to remember that a retired G4 officer or employee who is otherwise eligible must file the Form I-360 within 6 months of retirement in order to qualify for EB4 special immigrant classification.

Certain NATO-6 Employees and Relatives Treated Identically

The provisions of section 101(a)(27)(I) are extended to certain NATO civilian employees and their families by section 101(a)(27)(L). Essentially, this means that a NATO civilian employee (and his or her spouse, unmarried child(ren) or widow(er)) described in section 101(a)(27)(L) will be eligible for EB4 preference classification under the same rules as G4 nonimmigrants and certain relatives under section 101(a)(27)(I). The following NATO-6 employees are described in section 101(a)(27)(L):

  • A NATO-6 employee who is the member of a civilian component accompanying a force entering in accordance with the provisions of the NATO Status-of-Forces Agreement;
  • A NATO-6 member of a civilian component attached to or employed by an Allied Headquarters under the “Protocol on the Status of International Military Headquarters.”

Section 101(a)(27)(L) explicitly extends to nonimmigrants described in section 101(a)(15)(G)(i) who represent foreign governments that are members of NATO.

Implementing Regulations

Section 101(a)(27)(I) is implemented through Department of Homeland Security (DHS) regulations found in 8 C.F.R. 101.5.

8 C.F.R. 101.5(a) explains that an application for adjustment of status under section 101(a)(27)(I) is made on the Form I-485. The date that the Form I-485 is accepted as properly filed is the closing date for computing the residence and physical presence requirements for adjustment of status and immigrant visa eligibility under the statute. Accordingly, the alien must ensure that these requirements are met before filing the Form I-485.

United States Citizenship and Immigration Services (USCIS) policy allows for the concurrent filing of the Form I-485 and Form I-360. The application and petition must be filed with the Nebraska Service Center [see memo].1

8 C.F.R. 101.5(b) states that the application shall be accompanied by evidence “establishing the aggregate residence and physical presence required.” The regulation lists the following acceptable evidence:

  • Official employment verification;
  • Records of official or personnel transactions or recordings of events occurring during the period of claimed residence and physical presence;
  • Affidavits of credible witnesses.

Furthermore, the regulation states that applicants who are unable to furnish evidence in their own names may instead furnish evidence in the names of parents or other persons with whom they have been living. However, such evidence must be submitted with affidavits.

8 C.F.R. 101.5(c) lists rules for what constitutes meeting the physical presence requirements.

An absence by the principal G4 officer to conduct official business on behalf of the employing organization, or approved customary leave abroad shall not be subtracted from the aggregated period of physical presence for the current or former G4 officer or employee or the accompanying spouse and/or unmarried sons and daughters of the G4 officer or employee. However, the G4 officer or employee must continue to maintain a residence in the United States and his or her duty station must remain in the United States in order for such time abroad to be counted toward the aggregated period of physical presence.

If a G4 spouse or unmarried son or daughter is absent from the United States without the principal G4, the time shall not be subtracted from the aggregate period of residence and physical presence if it is on customary leave as recognized by the international organization employer. However, absence by the unmarried son or daughter while enrolled in a school outside the United States will not be considered physical presence for purpose of meeting the requirement.

8 C.F.R. 101(d) lists the rules for maintenance of G4 and N status for purpose of eligibility in the EB4 preference category as a special immigrant. For a G4 officer or employee, the maintenance of status is defined as maintaining qualifying employment with a G international organization. A family member must maintain a qualifying family relationship with the G4 officer or employee. Maintenance of status as an N nonimmigrant requires the qualifying family relationship to remain in effect. So long as G4 status maintained, an alien's unauthorized employment will not prevent him or her from meeting the residence and physical presence requirements. However, any underlying issues regarding inadmissibility may render an applicant ineligible for an immigrant visa.

Department of State (DOS) regulations found in 22 C.F.R. 42.32(d)(5)(ii) require that an alien defined in section 101(a)(27)(I) or (L) who is seeking an immigrant visa at a U.S. consulate must appear for the final visa interview and issuance of an immigrant visa within six months of establishing entitlement to status.

Conclusion: EB4 Special Immigrant Classification for International Organization Employees

Certain long-term international organization employees are eligible for EB4 special immigrant classification having met certain residency requirements. The provision applies in limited cases to retired G4 or NATO-6 officers or employees. An EB4 or NATO-6 status-holder or family member should consult with an experienced immigration attorney to ascertain eligibility for EB4 special immigrant classification and guidance through each step of the adjustment of status or immigrant visa process.

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  1. Memo, Yates, Assoc Dir. Operations, USCIS, Concurrent Filing for Section 101(a)(27)(I) Special Immigrants (Jan. 23, 2004)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1209, 1213, Print. Treatises & Primers.

USCIS, “Green Card for International Organization Employees,” (Feb. 17, 2016), available at https://www.uscis.gov/green-card/other-ways-get-green-card/green-card-international-organization-employees [link]