Part A - Public Services

Footnotes

[^ 1] See Volume 1, Public Services, Chapter 9, Feedback, Complaints, Misconduct, and Discrimination [1 USCIS-PM A.9].

[^ 2] See Volume 1, Public Services, Chapter 9, Feedback, Complaints, Misconduct, and Discrimination [1 USCIS-PM A.9].

A. Background and Interpretation Change

Applicants for and recipients of immigration relief under the Violence Against Women Act of 1994 (VAWA)^[1]and the Victims of Trafficking and Violence Protection Act of 2000^[2] are entitled to special protections with regard to privacy and confidentiality and adverse determinations of inadmissibility and deportability.^[3]

The governing statute prohibits the unauthorized disclosure of information about requestors and recipients of VAWA, T nonimmigrant, and U nonimmigrant-related benefit requests to anyone other than an officer or employee of DHS, the U.S. Department of Justice, or the U.S. Department of State who has a need to know.^[4] USCIS also extends the provisions of 8 U.S.C. 1367 to abused spouses of certain persons applying for employment authorization under the Immigration and Nationality Act (INA).^[5]

Under prior practice, USCIS applied the 8 U.S.C. 1367 protections indefinitely. This has meant that USCIS maintained these protections even after naturalization.

These protections offer important safeguards: an unauthorized disclosure of information that relates to a protected person can have significant consequences. However, the protections under 8 U.S.C. 1367 can pose barriers to accessing USCIS customer service tools and electronic benefit processing after naturalization because of identity verification requirements.^[6]

8 U.S.C. 1367 was designed to “ensure that abusers and criminals cannot use the immigration system against their victims,” such as by obtaining information about the existence of immigration benefit requests, “interfering with or undermining their victims’ immigration cases,” or “encouraging immigration enforcement officers to pursue removal actions against their victims.”^[7]

After naturalization, the concerns underlying the creation of 8 U.S.C. 1367 become less relevant and necessary as a safety mechanism: naturalized citizens are no longer subject to removal and can travel and work without seeking permission from USCIS. However, because USCIS continued to apply the 8 U.S.C. 1367 protections after naturalization, naturalized citizens who needed to interface with USCIS continued to face limitations in accessing USCIS’ telephonic and electronic customer service tools.

8 U.S.C. 1367 protects “any information which relates to an alien who is the beneficiary of an application for relief under paragraph (15)(T), (15)(U), or (51) of section 101(a) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(T), (U), (51)] or section 240A(b)(2) of such Act [8 U.S.C. 1229b(b)(2)].”^[8] “Alien” is defined at INA 101(a)(3) as “any person not a citizen or national of the United States.”

Upon naturalization, persons protected by 8 U.S.C. 1367 become citizens and are no longer aliens; therefore, the use of the term “alien” at 8 U.S.C. 1367 authorizes USCIS to terminate these protections at naturalization. In addition, the regulations at 8 CFR 214.14(e)(1) (relating to disclosure protections for U nonimmigrants) and 8 CFR 211.1(p)(1) (relating to T nonimmigrants) apply protections to a “beneficiary of a pending or approved petition for U [or T] nonimmigrant status,” which can reasonably be understood to refer to beneficiaries up to, but not including, naturalized citizens.

By interpreting the protections under 8 U.S.C. 1367 to terminate at naturalization, USCIS continues to comply with the statutory confidentiality protections for noncitizens but reduces the burden and inefficiencies for naturalized citizens.

B. Administrative Procedure Act Considerations

The Administrative Procedure Act excepts interpretive rules; general statements of policy; and rules of agency organization, procedure, or practice from notice and comment requirements.^[9]

On June 12, 2024, USCIS updated the Policy Manual to notify the public of its interpretation of “alien who is the beneficiary of an application for relief under paragraph (15)(T), (15)(U), or (51) of section 101(a) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(T), (U), (51)] or section 240A(b)(2) of such Act [8 U.S.C. 1229b(b)(2)]” at 8 U.S.C. 1367 and explain that it is changing its policy to no longer apply the protections under that section to all previously protected naturalized citizens, including those who naturalized prior to the effective date of this policy, as a result of this interpretation.^[10]

USCIS’ interpretation is reasonable because “alien” is defined at INA 101(a)(3) as “any person not a citizen or national of the United States.” USCIS interprets the protections at 8 U.S.C. 1367 to terminate upon naturalization because the formerly protected persons are no longer aliens, as defined by statute. This interpretation is based on the plain language of 8 U.S.C. 1367 and INA 101(a)(3) and is consistent with the legislative intent of 8 U.S.C. 1367.^[11]

The Policy Manual guidance explains and provides clarification to officers but does not add to or subtract from the statutory protections or the substantive regulations, create legally binding rights or obligations, or change the substantive standards by which USCIS evaluates applications for immigration benefit requests.

Unfair Surprise and Reliance Interest

Changes in an agency’s interpretation of a statute do not trigger notice and comment rulemaking unless the change amounts to an imposition of new rights, duties, or obligations on the affected public, or the change conflicts with another rule having the force of law.^[12] Likewise, an agency can change its interpretation of a regulation at different times in its history as long as the interpretative changes create no unfair surprise.^[13]

Here, USCIS is reducing the barriers to the affected public after having received consistent feedback from stakeholders who have been unable to get meaningful customer service assistance because of protections lingering beyond naturalization. This interpretive change promotes equitable and efficient processing for all naturalized citizens, regardless of whether they were previously subject to 8 U.S.C. 1367.

USCIS recognizes that this is a change in long-standing practice and accordingly considered serious reliance interests that may be engendered by the practices of USCIS officers before this interpretation. USCIS also considered the possible unfair surprise for those previously protected naturalized citizens.

USCIS acknowledges that persons protected by 8 U.S.C. 1367 had protections continuing after naturalization that prohibited sharing any information about them unless certain requirements were met. However, USCIS ultimately determined that termination of the additional stringent requirements of protecting confidentiality does not place naturalized citizens at greater risk. The standard protocols the agency has in place to protect all information from unauthorized disclosure, in addition to the relevant privacy laws, remain in effect. USCIS does not release personal identifying information without an authorized purpose and proper verification.

Additionally, USCIS maintains the ability to re-apply the protections, should questions arise regarding citizenship eligibility. Further, a naturalized U.S. citizen’s derivative beneficiaries remain protected by statute until the individual beneficiary becomes a naturalized U.S. citizen.

USCIS believes the overall benefits of this interpretive change outweigh any potential adverse impacts and are aligned with the plain language of the statute. Naturalized citizens will be able to utilize USCIS’ customer service and electronic benefits processing tools more effectively and will remain protected from unauthorized disclosures of personal identifying information under existing privacy laws.

Implementation

USCIS delayed implementation of this policy until 30 days after publication. Upon implementation, USCIS stopped applying the 8 U.S.C. 1367 protections to all naturalized citizens, including those who previously naturalized and those who naturalize on or after the effective date of this policy. Interested parties may provide feedback on the policy, as is generally provided for Policy Manual publications.

Footnotes

[^ 1] See Pub. L. 103-322  (PDF)(September 13, 1994).

[^ 2] See Pub. L. 106-386 (PDF) (October 28, 2000).

[^ 3] See 8 U.S.C. 1367.

[^ 4] See 8 U.S.C. 1367(a)(2).

[^ 5] See Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants (PDF, 98.03 KB), PM-602-0130, issued March 8, 2016. Abused spouses of certain nonimmigrants may apply for employment authorization by filing an Application for Employment Authorization for Abused Nonimmigrant Spouse (Form I-765V).

[^ 6] See Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7].

[^ 7] See H.R. Rep. 109-233 (PDF), p. 120 (2005).

[^ 8] See 8 U.S.C. 1367(a)(2).

[^ 9] See 5 U.S.C. 553(b)(A).

[^ 10] See Customer Service and Interpretation of 8 U.S.C. 1367 Confidentiality Protections for U.S. Citizens (PDF, 328.39 KB), PA-2024-15, issued June 12, 2024.

[^ 11] See H.R. Rep. 109-233 (PDF), p. 120 (2005). The House Judiciary Committee report accompanying VAWA 2005 characterized 8 U.S.C. 1367 as protecting victims of domestic violence from the disclosure of information to their abusers. The report adds that the VAWA 2000 and VAWA 2005 amendments extend protections to “victims of trafficking, certain crimes and others who qualify for VAWA immigration relief,” with the purpose of “[ensuring] that abusers and criminals cannot use the immigration system against their victims.”

[^ 12] See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1376 (Fed. Cir. 2001). See Warder v. Shalala, 149 F.3d 73, 81-82 (1st Cir. 1998). See White v. Shalala, 7 F.3d 296, 304 (2nd Cir. 1993).

[^ 13] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 170-71 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).