The Department of State is amending its regulations clarifying entitlement to special immigrant status under the USA Patriot Act. Section 421 of the US Patriot Act provides special immigrant status for certain victims of the terrorist attack of September 11, 2001 who file petitions for classification under the Immigration and Nationality Act (INA) section 203(b)(4). By adding a new fourth preference classification, paragraph (9), to 22 CFR 42.32(d), the Department will clarify entitlement to special immigrant status under the Patriot Act.

The new regulation authorizes consular officers to accord fourth preference employment-based special immigrant classification to those who qualify as a special immigrant. As with other classes of fourth preference employment-based immigrants, the alien must be a beneficiary of an approved petition. 

Under the regulation, applicants entitled to special immigrant classification include the following:

1. principal alien who is

(a)  the beneficiary of a petition, filed on or before September 11, 2001, for classification as an immigrant under INA § 203(a) or (b) or as a nonimmigrant under INA § 101(a)(15)(K), or

(b)  the beneficiary of a labor certification application filed on or before September 11, 2001

whose application was revoked, terminated or rendered null, either before or after its approval, due directly to the attack of September 11, 2001, that resulted in the death or disability of the petitioner, beneficiary, or applicant; or caused the loss of employment due to physical damage to, or destruction of, the business of the petitioner or the applicant.

2. the spouse or child of a principal alien who accompanied the principal alien or following to join the principal alien no later than September 11, 2003. In the case of a deceased principal alien, the requirement for accompanying or following to join is disregarded.

3. the grandparent of orphan, as a direct result of a September 11, 2001 terrorist attack, if either of the orphan’s parent was a U.S. citizen, a U.S. national, or a lawful U.S. permanent resident on September 10, 2001. The grandparent must demonstrate that he or she is coming to the United States to assume legal custody of the child.

To qualify for classification as a special immigrant, the alien must demonstrate to the Secretary of Homeland Security that he or she is a “victim of a specified terrorist activity,” defined in the Patriot Act as any terrorist activity conducted against the Government or people of the United States on September 11, 2001. Foreigners in the special category are subject to all the grounds of ineligibility except INA § 212(a)(4).

A priority date will be given at the time the fourth preference petition is filed.