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SCIENTIFIC PLASTIC PRODUCTS, INC., Appellant, v. BIOTAGE AB, Appellee.
Before NEWMAN, MOORE, and WALLACH, Circuit Judges. Frederick C. Laney, Niro, Haller & Niro, of Chicago, IL, argued for appellant. With him on the brief was Paul K. Vickrey. Of counsel on the brief was David M. Quinlan, David M. Quinlan, P.C., of Princeton, NJ. George C. Beck, Foley & Lardner, LLP, of Washington, DC, argued for appellee. With him on the brief were Michael R. Houston, of Chicago, IL, and Debra D. Nye, of San Diego, CA.
Scientific Plastics Products, Inc. (SPP) is the owner of the three United States Patents here at issue: No. 7,138,061 (the '061 patent), No. 7,381,327 (the '327 patent), and No. 7,410,571 (the '571 patent), which relate to a resealable cartridge for low pressure liquid chromatography (LPLC). The '061 patent claims a method of performing LPLC using the cartridge, the '571 patent claims the cartridge, and the '327 patent claims a modified cartridge. After SPP filed suit against Biotage AG for patent infringement, Biotage requested inter partes reexamination of the three patents. The district court then stayed the infringement litigation.
The patent examiner rejected all claims of the three patents on the ground of obviousness, and the Patent Trial and Appeal Board affirmed the rejections and cancelled all claims.1 We affirm the Board's decisions.
The SPP patents discuss the need for a low cost resealable cartridge for LPLC that provides a fluid tight seal under pressure. The claimed cartridge, illustrated at Figure 1 of the '327 patent, comprises a tubular container 20 having a threaded polymer cap 28 and a sealing flange 40.
an annular sealing flange depending from the cap and located radially closer to the longitudinal axis than the skirt, the flange having an outward facing inclined sealing surface facing away from the axis with an upstream end of the flange being further from the axis than a downstream distal end of the flange; the outward facing inclined surface on the flange generally aligned with and located to abut the inward facing inclined surface on the container to form a resilient fluid tight seal between the cap and container suitable for use in low pressure liquid chromatography when the cap is screwed onto the container.
Yamada shows an LPLC cartridge having a tubular polymer container with an open upstream end and an outflow at the downstream end. Yamada shows a threaded polymer cap for the cartridge that is “detachably” fitted to the corresponding threaded upstream end of the cartridge body. Yamada further shows an O-ring in the cap to ensure liquid tightness. The examiner found that Yamada discloses all of the features of the SPP cartridge except for the complementary inclined sealing surfaces of the cap and the lip of the container.
King relates to “improved seals for container closure assemblies,” and is “especially applicable to the sealing of containers in substantially gas-tight and liquid-tight fashion, such as the sealing of ․ beverage containers.” King shows a “container closure assembly” with a threaded polymer cap that ensures a fluid tight seal. The examiner found that King shows sealing surfaces that have oppositely inclined surfaces with respect to the cap and lip of the container, as in the SPP closure.
Strassheimer relates to plastic bottles and closures therefor that are “especially useful for carbonated beverages.” Strassheimer shows a plastic threaded cap that ensures a fluid tight seal “even after repeated use.” The examiner found that Strassheimer shows a taper on the lip of the plastic container that corresponds to a taper on the cap, as in the SPP closure.
The examiner concluded that it would have been obvious to combine the cartridge of Yamada with the cap of either King or Strassheimer. On appeal to the Board, SPP challenged (1) the examiner's determination that King and Strassheimer were “analogous art” and (2) that it would have been obvious to combine the LPLC cartridge of Yamada with the pressure-resistant resealable cap of either King or Strassheimer.
Therefore, it was reasonable for the Examiner to find that one of ordinary skill in the art would have found the disclosures of King and Strassheimer relevant in constructing a plastic container that achieves a fluid tight seal at elevated pressure, while preserving access to the container in order to easily vary its contents.
The Board also addressed SPP's argument that the examiner failed to provide adequate reasoning for combining Yamada with King or Strassheimer. The Board found that the specification of the SPP patents identified a leakage problem associated with threaded connections between the polymer cap and polymer body in LPLC cartridges, and that Yamada's use of an O-ring in the cartridge “implicitly acknowledges” potential leakage. Id. The Board concluded that this known problem “provides a reason for one of ordinary skill to have turned to King or Strassheimer to improve the sealing arrangement set forth in Yamada.” Id.
Innovention Toys, LLC v. MGA Entm't, Inc., 637 F.3d 1314, 1321 (Fed.Cir.2011) (quoting Clay, 966 F.2d at 659); see also In re Klein, 647 F.3d 1343, 1348 (Fed.Cir.2011) (same standard). The pertinence of the reference as a source of solution to the inventor's problem must be recognizable with the foresight of a person of ordinary skill, not with the hindsight of the inventor's successful achievement. See In re Oetiker, 977 F.2d 1443, 1447 (Fed.Cir.1992) (“Patent examination is necessarily conducted by hindsight, with complete knowledge of the applicant's invention ․”); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2006) (“A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.”).
The Board found that the central purpose of the SPP inventors was to form “an LPLC cartridge that ‘would allow a user to easily vary and access the cartridge's contents without destroying its ability to be sealed and function under LPLC pressures.’ “ Board Op. at *6 (quoting Appellant Br. 11). The Board concluded that a person of ordinary skill seeking such a cartridge would reasonably look to sealing arrangements for other pressurized systems. Thus the Board held that replacement of the sealing arrangement of Yamada with the sealing arrangement of King or Strassheimer was an obvious solution to the problem of providing a resealable cartridge that achieves a fluid tight seal at elevated pressures.
SPP disagrees with the Board's characterization, and states that the purpose of its invention is to “provide chemists with a low cost disposable chromatography cartridge that can function under LPLC pressures and simplify the chemist's ability to control the chromatographic packing material and the introduction of fluids into the cartridge under pressure.” Appellant Br. 25–26. SPP argues that the needs identified in the specification are specific to flash chromatography, and that chemists in laboratories would not look to “soda-pop” bottle caps to solve problems with flash chromatography cartridges. However, the analogous art inquiry does not exclude references “not within the field of the inventor's endeavor,” if a person of ordinary skill would reasonably look to that reference in order to solve the problem confronting the inventor. In re Clay, 966 F.2d at 659.
SPP states that the purposes of the invention and the prior art must be considered as a whole, in contrast to focusing on specific components. SPP argues that “[b]y focusing just on sealing issues, the Board improperly narrowed its focus to commonality for particular features instead of answering the central question of whether the reference's field itself is even one a skilled artisan would have reasonably looked to, which requires a focus on the claimed invention.” Appellant Br. 33.
The Board observed that when the problem an invention is designed to solve is not unique to the specific field of the invention, it is not improper for the trier of fact to consider whether a person of ordinary skill would consult a different art in order to solve the problem. See In re Paulsen, 30 F.3d 1475, 1481–82 (Fed.Cir.1994) (affirming rejection of a laptop computer hinge as obvious over hinged cabinets, piano lids, etc., because the “problem is not unique to portable computers”); Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 314 (Fed.Cir.1985) (affirming invalidation of a patent for a hinged pen arm because a person skilled in pen art would have looked to hinge and fastener art for a way to attach a pen to a pen arm).
Other cases have found that a particular reference was not analogous art when the field was not an obvious area to be consulted. In In re Oetiker, the court held that a person of ordinary skill, seeking to solve the problem of fastening a hose clamp, would not reasonably be expected to look to the field of fasteners for women's garments. See 977 F.2d at 1446–47 (“The Board apparently reasoned that all hooking problems are analogous.”). The analogous art inquiry is a factual one, requiring inquiry into the similarities of the problems and the closeness of the subject matter as viewed by a person of ordinary skill.
Here, the King and Strassheimer references address the problem of providing a fluid tight seal at elevated pressures, between a container and a resealable cap. This is sufficiently close to the problem addressed by the claimed invention; substantial evidence supports the Board's finding that King and Strassheimer are available as prior art.
[A] patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art. Although common sense directs one to look with care at a patent application that claims as innovation the combination of two known devices according to their established functions, it can be important to identify a reason that would have prompted a person of ordinary skill in the relevant field to combine the elements in the way the claimed new invention does.
Applying these principles, the Board concluded that the “known problem of leakage in threaded connections of plastic LPLC cartridges under pressure identified in the [patents] provides a reason for one of ordinary skill in the art to have turned to King or Strassheimer to improve the sealing arrangement set forth in Yamada.” Board Op. at *8. The Board cited a statement in the SPP patents that explained that because prior art LPLC cartridges “leak at the seams[,][t]hreaded connections are thus not used to form the body of [LPLC cartridges] when the body is made out of polymers.” Id. at *6. The Board noted SPP's argument that Yamada, a polymer cartridge with threaded connections, does not explicitly disclose a leakage problem. However, the Board found that “by providing for the presence of an O-ring, Yamada implicitly acknowledges that there is a potential leakage issue between the cap and column body of the plastic cartridge.” Id. at *7.
SPP argues that the Board improperly relied on the inventors' description of the problem solved in order to find the solution obvious, an analytic procedure that relies on hindsight by using the inventors' own reasoning against them. SPP points out that the statement in the patents that threaded connections are not used with plastic LPLC cartridges was actually incorrect, as evidenced by the Yamada reference, which shows a plastic LPLC cartridge with threaded connections. SPP argues that a person of ordinary skill would not have perceived any need to improve such cartridges, and that only through improper hindsight was the Board able to justify its finding of a known leakage problem.
SPP is correct that obviousness is not determined by hindsight. However, the issue here is not whether the Yamada cartridge leaked, but whether there was a concern with leakage in LPLC cartridges such that a person of ordinary skill would have provided a known pressure-resistant cap, as in King or Strassheimer, to the cartridge of Yamada. Substantial evidence supports the Board's finding that there was such a concern.
I would find for the patentee. This is a two-reference obviousness rejection (Yamada and King or Yamada and Strassheimer), which I would reverse. The Board failed to provide substantial evidence that it would have been obvious to modify Yamada and it failed to determine the level of ordinary skill in the art.
The claims at issue are directed to a flash chromatography cartridge to be used in low pressure liquid chromatography (LPLC). The primary reference, Yamada, is directed to a column device for use in LPLC. The Board determined that Yamada disclosed all the elements of the claims at issue except the inclined abutting surfaces of the cap and the lip of the container. The Board concluded that one of skill in the art would have been motivated to modify the Yamada structure by using the sealing structure disclosed in King or Strassheimer, both of which are directed to container closures for soda pop bottles. I dissent from the majority because this record does not contain substantial evidence that one of skill in the relevant art would have modified the chromatography cartridge in Yamada by replacing its sealing configuration with that of a soda pop bottle.
The Board concluded that “known problem of leakage in threaded connections of plastic LPLC cartridges ․ provides a reason for one of ordinary skill in the art to have turned to King or Strassheimer to improve the sealing arrangement [of] Yamada.” Board Op. at *8. The majority cites two factual findings in support of this conclusion—that Yamada's use of an O-ring “implicitly acknowledges” a “potential leakage issue,” and that the inventors' statements in the patents allegedly identify a prior art leakage problem. Maj. Op. at 6; see also Board Op. at *7. Neither factual finding is supported by substantial evidence. These were contested inter partes reexaminations with experts on both sides, yet there is no testimony or other evidence of a known leakage problem in prior art cartridges that would have motivated one of skill in the art to modify Yamada.
The Board's finding regarding Yamada's O-ring, Board Op. at *7, ignores the reality of the situation, which is that Yamada did not have a leakage problem. Yamada does not disclose leakage problems. Id. Even Biotage's expert admitted that Yamada's configuration did not have leakage problems at the pressures identified by the patents-at-issue. J.A. 501 ¶ 9, 613 ¶ 9, 713 ¶ 9. In fact, the Board found that Yamada's configuration “ensure[s] liquid tightness.” Board Op. at *5. The time delay between the Yamada configuration and the inventions at issue also supports the fact that one of skill in the art would not have modified Yamada because it did not have a leakage problem. Yamada's earliest priority date is more than ten years before the earliest filing date of the patents-at-issue. There is absolutely no evidence even suggesting that one skilled in the art was aware of a leakage problem in Yamada's design during those ten years. The Board's conclusion that Yamada's O-ring “implicitly” acknowledges a “potential” leakage problem such that one of skill in the art would have been motivated to modify Yamada is pure conjecture. We cannot rely on the Board's speculation about a “potential” problem that, according to all of the evidence on record, never actually existed, to support a finding of obviousness. One of skill in the art would not have modified Yamada to fix a leakage problem that never existed in the first place. You wouldn't seek to “improve [a] sealing arrangement” that doesn't leak.
The patents at issue do say: “This operating pressure is sufficiently high that these cartridges, which have relatively large diameter bodies, leak at the seams. Threaded connections are thus not used to form the body when the body is made of polymer.” ′061 patent col. 1 ll. 16–19. As a preliminary matter, the statement, as the parties acknowledge, is inaccurate. Yamada, for example, uses threaded connections. This statement, in the patents, is not a recognition of a known prior art problem that would have motivated one of skill in the art to want to modify the Yamada design. It was a problem identified, not in the prior art, but by these inventors.
It is troubling that the majority and the Board rely on the inventors' disclosure of the problem their inventions solve as the primary basis for modifying the prior art. This is hindsight of the worst kind, “wherein that which only the invention taught is used against its teacher.” W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553 (Fed.Cir.1983). The patents do not indicate that leakage was a problem identified in the prior art or a problem known to those of skill in the art. Rather they indicate that the claimed design will avoid leakage. These inventors identified a design problem, articulated it, and solved it. There is absolutely no evidence of the existence of a known leakage problem that would have motivated skilled artisans to modify Yamada. The Board is taking the ingenuity of these inventors and, without any record basis, attributing that knowledge to all skilled artisans as the motivation to make the inventions at issue. Hindsight, hindsight, hindsight.
These were inter partes reexamination proceedings between sophisticated parties. Both parties put on expert testimony regarding obviousness. Yet there is no evidence that the chromatography cartridges in Yamada had a leakage problem that skilled artisans would have been motivated to address. There is simply no evidence that one of skill in the art would have modified the Yamada cartridge using the soda pop bottle sealing mechanisms of King or Strassheimer to prevent a leakage problem that the Yamada cartridge did not have.
I dissent for a second, independent reason. The Board found the claims obvious without resolving the level of skill in the art. Oral Argument at 24:59–25:31, available at http://oralarguments .cafc.uscourts.gov/default.aspx?fl= 2013–1219.mp3. It is axiomatic that this is a “basic factual inquir[y]” required of any obviousness determination. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). In most cases, there is no dispute over the level of the skilled artisan. But in this case, the parties contested this factual issue throughout the proceedings, and inexplicably the Board never resolved it. Oral Argument at 19:57–20:32, 23:21–23:56, 24:59–25:31. The parties still dispute this issue on appeal. Compare Appellant's Br. 21 (“A chemist analyzing organic compounds would not look to soda-pop bottles to solve problems with flash chromatography cartridges.”) (emphasis added), with Appellee's Br. 28–29 (“SPP[ ] mischaracterizes the relevant person of ordinary skill to whom knowledge of analogous art would be attributable․ [T]he relevant person of ordinary skill in the art ․ would include a designer ․ skilled in mechanical engineering.”) (emphasis added).
The Board's failure to make this determination is especially pernicious where the analogous art question is far from clear. Soda pop bottles and methods for using chromatography cartridges are clearly not in the same field of endeavor. Instead, the dispute on appeal is whether the soda pop bottle references are both reasonably pertinent to the inventors' problem. Maj. Op. at 6–7; see also In re Oetiker, 977 F.2d 1443, 1447 (Fed.Cir.1992). “Reasonably pertinent” means “which fields a person of ordinary skill would reasonably be expected to look for a solution to the problem facing the inventor.” Oetiker, 977 F.2d at 1447 (emphasis added). An ordinarily skilled chemist would have likely looked to a different body of prior art than an ordinarily skilled mechanical engineer with industrial design experience. Even Biotage recognizes that the determination of the person of ordinary skill is inextricably linked to what art would have been analogous. Oral Argument at 25:31–25:43. We cannot answer the analogous art question without knowing who the person of ordinary skill is.
I would reverse because I conclude that the Board's cancellation of the claims at issue was based entirely on hindsight reconstruction—there is no record evidence that one of skill in the art would have been motivated to modify Yamada with soda pop bottle sealing closures. And the Board cannot transfer the inventors' identification of the motivation for their patented design to the skilled artisan when there is no record evidence that the skilled artisan possessed that knowledge. Finally, where the level of ordinary skill, as here, is hotly contested and would affect the scope of the analogous art, the Board must decide that factual issue. I respectfully dissent.
Opinion for the court filed by Circuit Judge NEWMAN. Dissenting opinion filed by Circuit Judge MOORE.


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There has been a considerable number of cases within Europe in which the owners of trademarks have complained that sale of Google AdWords infringes their intellectual property rights. When the Google search engine is used to carry out a search, it displays ‘natural’ or ‘organic’ links based on relevance to the search term used, as well as ‘sponsored links’ which are triggered by searching for an AdWord. Clicking on a sponsored link triggers a charge to the advertiser.
Certain aspects of the issue have been considered most recently in England and Wales by the High Court in Interflora Inc v. Marks & Spencer Plc  EWHC 1094 (Ch) which concerned the purchase by Marks & Spencer of Google AdWords including not only the term ‘Interflora’, but also a number of combinations of ‘Interflora’ with a descriptive term (such as ‘flowers’, ‘delivery’ or ‘online’) some misspellings and variants (including ‘Inter flora’ and ‘Intaflora’), and Interflora’s domain names (www.interflora.co.uk and www.interflora.com). Therefore, when the search term ‘Interflora’ (or any of the variants purchased by M&S) is entered into Google, ‘M&S Flowers Online’ appeared as a sponsored link.
The European Court of Justice has since issued the preliminary opinion of Advocate General Poiares Maduro in the joined cases of Google France v. Louis Vuitton Malletier, Google France v. Vaiticum Luteciel and Google France v. CNRRH (joined cases C-236/08, C-237/08 and C-238/08)(28 September 2009)(the ‘Google France cases’). Advocate General Maduro concluded that Google did not infringe trade mark rights when selling AdWords or when sponsored links appeared alongside organic links following a Google search. He also concluded that Google cannot be regarded as providing an information society service within the meaning of Article 14 of the Directive on electronic commerce (Directive 2000/21/EC) since if AdWords displays results based on the commercial relationship with advertisers then it is not a neutral information vehicle which would fall within the definition of hosting under Article 14. The distinction between sponsored links and organic links was that, for natural search results, Google did not have any pecuniary interest in bringing any specific site to the searcher’s attention.
A cynic might suggest that the explanation for this [Google’s policy] was a calculation…that the courts in the United Kingdom and Ireland interpret trade mark law more restrictively (that is to say, less in favour of trade mark owners) than courts in other member states.
Second, unlike the Google France cases, the Interflora action is brought against M&S, its competitor, and not the search engine. The Google France opinion does not deal with competitor bidding, but instead focuses on customer confusion which is not at issue in Interflora. Finally, the Advocate General’s opinion is precisely that: it is not guaranteed that the ECJ will follow it and it has no binding legal authority on the UK courts. It is for the UK courts to decide whether Interflora’s rights have been infringed.
The immunities in Articles 12 to 15 of the e-commerce Directive concern the exemptions from liability of intermediary service providers in relation to caching, hosting and acting as a ‘mere conduit’ of information. Yet, the provisions of the Directive were drafted with the content delivery model of the late 1990s in mind: the creation of software and content which was hosted, updated and distributed. This does not sit easily with the so-called Web 2.0 intermediaries who exploit both client- and server-side software with content syndication to deliver information storage, creation, and dissemination capabilities to users. Web 2.0 technologies are shifting the Internet from a traditional goods and services marketplace to a user-centred and user-driven environment. The new class of intermediary includes sites such as eBay, Facebook, Wikipedia and YouTube as well as search engines. This is mirrored by a shift from an online advertising model whereby companies deliver content based on a CPI (cost per impression) model or targeted online advertising on sites enjoying high traffic to companies who provide targeted online advertising based upon specific user data, such as browsing history or contextual relevance between a particular brand and the recipient website.
There is, then, a current absence of legal clarity in cases concerning the display of targeted advertising which might, on the face of it, infringe the rights of competitive brand owners. As a result of this legal uncertainty, the serving of advertisements which are based on behavioural marketing and which deliberately aim to exclude (or certainly to marginalise) the owners of competitive brands would seem set to continue, at least until the ECJ considers the queue of related cases coming before it (Portakabin Limited and Portakabin BV v. Primakabin BV; Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmuller GmbH v. Gunter Guni and trekking.at Reisen ; Bananabay) and manages to provide a level of certainty and harmonisation across the EU which is currently lacking. It may also finally review the system of immunities within the e-Commerce Directive in the light of the technological advances and consumer behaviour patterns of the past ten years.

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Appellant Northwestern Bell Tel. Co.
1. The record failing to disclose what, if any, federal questions were presented to the state supreme court, review here is accordingly confined to those which are discussed in the opinion of that court. P. 297 U. S. 473 .
(1) Assuming, without deciding, that due process requires that the commission's order be upon notice to the company and opportunity to be heard, the procedure followed by the commission in this case satisfied that requirement. P. 297 U. S. 473 .
Act, it was within the authority of the state commission to prescribe such rates. P. 297 U. S. 477 .
(3) The estimated composite rate determined and used by the company, pursuant to the direction of the Interstate Commerce Commission that such rate be used until rates prescribed by that Commission should become effective, cannot be taken as a rate prescribed under § 20(5). P. 297 U. S. 479 .
(4) Section 20(5) cannot be construed as authorizing the Interstate Commerce Commission to supplant state power to regulate depreciation rates of telephone companies otherwise than by prescribing a rate administratively determined by the Commission itself. P. 297 U. S. 480 .
3. Statutes should be so construed as to avoid doubts of their constitutionality. P. 297 U. S. 480 .
128 Neb. 447, 259 N.W. 362, affirmed.
Appeal from a judgment affirming an order of the state commission relating to the accounting of the telephone company.
appellant telephone company to use, for purposes of accounting and reporting to the commission, for the year 1934, a composite depreciation rate of 3 1/2 percent upon all its depreciable property in Nebraska.
Appellant now assails the order on three grounds: (1) that it was made without such notice and hearing as due process requires; (2) that it is invalid because the Interstate Commerce Commission, pursuant to Congressional legislation, has occupied the field of regulation of telephone company accounting, and has made valid orders conflicting with that of the State Commission, and (3) that it infringes due process because it is unsupported by evidence and deprives appellant of the right to keep accurate books of account.
The record does not disclose what, if any, federal questions were presented to the state supreme court. Its opinion discusses only the first two contentions made here, and we accordingly confine our review to them. See Miedreich v. Lauenstein, 232 U. S. 236 ; Cissna v. Tennessee, 246 U. S. 289 ; Saltonstall v. Saltonstall, 276 U. S. 260 .
1. Assuming, without deciding, that due process requires that the commission's order be upon notice to appellant and opportunity to be heard, we think that requirement was satisfied by the procedure followed by the commission. The challenged order was made at the conclusion of proceedings initiated by the state commission by its General Order No. 59, directing Class A telephone companies, to which class appellant belongs, to file with the commission specified schedules of depreciation rates. The order was prefaced by an opinion of the commission.
the order of that commission of July 28, 1931, In Depreciation Charges of Telephone Companies, docket No. 14700, 177 I.C.C. 351, which, for the assistance of the commission in prescribing depreciation charges, required class A telephone companies to file with their respective state commissions by September 1, 1932, their estimates of composite annual percentage depreciation rates applicable to each class of depreciable property owned or used by them, with supporting data. The order provided for the adoption of a depreciation rate by the commission, to be effective January 1, 1933. The opinion of the state commission points out that, by later order of the Interstate Commerce Commission the filing date was postponed to August 1, 1934, and the date for the prescribed rate to January 1, 1935.
The opinion also refers to the Depreciation Section Service Circular 7, issued by the Interstate Commerce Commission Bureau of Accounts, which requested that schedules of depreciation rates and statements of estimated service lives and salvage values of telephone property be submitted not later than March 1, 1934, "in order that he Commission may be informed as to the rates contemplated for use" by the telephone companies for the year 1934. The opinion states that it is the view of the State Commission that it has not been deprived of jurisdiction to fix rates for intrastate telephone service and that, while Congress has given the Interstate Commerce Commission authority to prescribe a uniform system of accounting and rates of depreciation for purposes of accounting to it, the state commissions are not deprived of their authority to fix rates of depreciation so far as their own accounting and reporting system is concerned.
"[i]t reserves the right to review the findings and conclusions of the Interstate Commerce Commission and enter a final order thereon as to the depreciation rate for accounting purposes to this commission."
In compliance with this order, appellant, on March 1, 1934, filed schedules classifying its depreciable property in twelve accounts, with estimated rates of depreciation of each class for 1934, and showing a composite estimated rate of depreciation on all accounts of 4.48 percent.
"for hearing for oral examination of the members of respondent's staff, who had prepared said schedules, and for the introduction of such evidence as the Commission may desire to submit with opportunity of objections and cross-examination by respondent."
accounting. One was the gathering of data with respect to the proposed rates of depreciation for 1935, which the order of the Interstate Commerce Commission had directed should be filed with the state commissions, and as to which the latter had been requested to submit their recommendations. The other related to the state commission's asserted authority to fix depreciation rates, its rejection of the proposed rates for 1934 as unsatisfactory, and its direction that hearings be had on them. That the primary purpose of the hearing was to aid the commission in its ratemaking, rather than its advisory function, seems apparent, the more so as the order for the hearing refers only to the 1934 rates, and as the date set for it was in March, four months before August 1, 1934, the date fixed for filing data for the 1935 rate, with respect to which alone the commission had been asked to exercise its advisory function. Because of subsequent postponements, the date for submitting the data for 1935 never arrived.
a full hearing upon adequate notice that the commission proposed to fix a depreciation rate for 1934, and that the requirements of due process were satisfied.
2. The remaining question is whether the jurisdiction conferred by Congress upon the Interstate Commerce Commission over accounts and depreciation rates of telephone companies, and the exercise of that jurisdiction by the commission, have operated to curtail state authority over depreciation rates for 1934.
The Interstate Commerce Commission was given no jurisdiction over telephone service rates, but §§ 1(1), 20(1)(5) of the Interstate Commerce Act, as amended by Act of June 29, 1906, 34 Stat. 584, 593, see 36 Stat. 555, 556, conferred on the commission authority, in its discretion, to prescribe a uniform system of accounts for telephone companies, and made it unlawful for them to keep any accounts other than those prescribed or approved by the commission. Such a system of accounts was required by the commission February 1, 1913. Effective January 1, 1933, it prescribed a revised system of accounts for class A and class B telephone companies, and directed that they keep all accounts in conformity to it.
"for which depreciation charges may properly be included under operating expenses and the percentages of depreciation which shall be charged with respect to each of such classes of property."
preparatory to the establishment of rates of depreciation for telephone companies, some of which we have mentioned. The adoption of rates has been postponed from time to time, and has now been indefinitely postponed by order of the Communications Commission of May 1, 1935, to which the authority of the Interstate Commerce Commission over telephone companies was transferred by Act of Congress of June 19, 1934, 48 Stat. 1064.
could act administratively to prescribe rates. See Illinois Central R. Co. v. Public Utilities Comm'n, 245 U. S. 493 , 245 U. S. 510 ; Board of Railroad Commissioners v. Great Northern Ry. Co., 281 U. S. 412 , 281 U. S. 430 . In Smith v. Illinois Bell Tel. Co., 282 U. S. 133 , 139, this Court pointed out that, until the Interstate Commerce Commission has prescribed depreciation rates, the prerogative of the state to regulate such rates cannot be gainsaid. See also Missouri Pacific R. Co. v. Larabee Flour Mills Co., 211 U. S. 612 , 211 U. S. 623 .
When respondent fixed the composite rate of depreciation applicable to all classes of appellant's property for 1934, the Interstate Commerce Commission had prescribed no rate. It had given directions for filing data with state commissions preparatory to establishing a rate for the year 1935, and, by the revised uniform system of accounts for telephone companies, effective in 1933, it had prescribed, Instruction 81(A)(C), the method by which depreciation accounts should be kept, directing that there be a composite annual percentage rate of depreciation for each account covering depreciable property, and that, until rates "prescribed by this Commission become effective," the company's estimated composite rate be used.
Commerce Commission was concerned, to use their own depreciation rates for purposes of the required accounting, until the commission performed the duty to establish rates imposed upon it by Congress.
In any event, we think that § 20(5) cannot be read as authorizing the Interstate Commerce Commission to supplant state power to regulate depreciation rates of telephone companies except by prescribing a rate administratively determined by the commission itself. A direction that the commission, as soon as practicable, prescribe depreciation rates is hardly to be read as authority to permit the telephone companies to fix the rates for themselves in defiance of state power. The doubtful constitutionality of the statute, if so construed, precludes our acceptance of such a construction.


The claimant was represented by George C. Springer, Jr., Esq., 99 West Main St., Suite 301, New Britain, CT 06051.
This Petition for Review from the April 26, 1994 Finding and Award of the Commissioner acting for the Fourth District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the Finding and Award of the Commissioner for the Fourth District. The claimant’s cross-appeal is still pending as well. The respondent challenges the commissioner’s inclusion of outside overtime benefits in the claimants’ “weekly compensation” under § 7-433b(b) C.G.S. for the purpose of determining the benefit cap under that section, along with the award of interest and attorney’s fees to the claimant. The claimant argues in his cross-appeal that the commissioner improperly failed to recalculate his benefits based on a later date of injury, that he failed to order reimbursement retroactive to 1983, that he failed to award interest at a 12 percent rate, and that he failed to award an educational allowance. We dismiss the respondent’s appeal and sustain part of the cross-appeal.
The claimant was employed by the Bridgeport Police Department, and filed a claim on September 18, 1979 under § 7-433c C.G.S. based on injuries related to heart disease and hypertension that were suffered in the course of his duties as a police officer. He became totally disabled as a result of those conditions on May 16, 1983. The claimant successfully established his entitlement to § 7-433c benefits, and subsequently claimed that the city owed him additional benefits, as it had failed to include in the § 7-433b(b)1 cap on his weekly payments inside and outside overtime paid to active members of the police department in the same employment status that the claimant held at the time of his injury. The commissioner agreed and awarded him inside and outside overtime benefits under the authority of Szudora v. Fairfield, 214 Conn. 552 (1990). The respondent has appealed the outside overtime portion of that award.
The facts of this particular claim are identical to those in Fitzgerald v. City of Bridgeport, 2121 CRB-4-94-8 (decided July 21, 1995), in which we decided that Szudora could be relied on by the trial commissioner in including both inside and outside overtime in the claimant’s benefits. As there is no reason to reiterate our reasoning here, we simply rely on Fitzgerald in affirming the trial commissioner’s decision on the issue of overtime.
In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee .... In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.
Here, the commissioner concluded that the respondent’s failure to pay the overtime calculations constituted an unreasonable contest. He thus awarded interest at a rate of six percent per year on the unpaid portions of the benefits due the claimant, and noted that the claimant was entitled to attorney’s fees as well, for which no award was made due to a lack of evidence as to counsel’s fees.
In light of the decision reached above on the issue of outside overtime, we cannot say that there was no evidence to support the commissioner’s finding of unreasonable contest. The respondent did little to effectively distinguish this situation from the one in Szudora, supra, and it is conceivable that the commissioner had good reason to believe that its attempt to distinguish Szudora from the claimant’s case was not made in good faith. On the record before us, we cannot say that the commissioner’s decision was an abuse of discretion. See Tyc v. Calabrese Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 71, 1529 CRB-5-92-10 (December 29, 1994); Wheeler v. Bender Plumbing Supply of Waterbury. Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). Thus, a determination must be made regarding the proper sum to be awarded for attorney’s fees.
Similarly, on his cross-appeal the claimant argues that the commissioner should have awarded the claimant 12 percent interest per annum instead of six percent as a result of the respondent’s unreasonable delay in remitting the dependency allowances and overtime payments due the claimant. The language of § 31-300 does not make the use of the 12 percent interest rate mandatory, however; the commissioner has discretion not only to award interest, but to set a lower interest rate as well. Tyc, supra; see also Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992). Thus, the six percent figure stands.
The primary focus of Liano’s cross-appeal is the argument that the commissioner improperly failed to use a compensation rate and to recalculate benefits based on a May 16, 1983 date of injury or reinjury. The commissioner found that the claimant suffered a compensable injury on September 18, 1979, and based compensation on the maximum rate prevailing on that date. However, there is also a finding that the claimant has been totally disabled since May 16, 1983. The claimant sought to amend the Finding and Award to reflect a “totally incapacitating reoccurrence” of his condition on May 16, 1983, with a compensation rate based on that date, but his Motion to Correct was denied.
The claimant now argues that under § 31-307b C.G.S., the commissioner should have used the 1983 date of injury as the starting point for calculating his average weekly wage under § 31-310 C.G.S. The claimant also alleges error in the commissioner’s failure to rule that he was entitled to retroactive overtime payments from 1983 through 1990. The respondent counters that the claimant presented no evidence to support a finding of a new injury or a recurrence on May 16, 1983. It further argues that the principle of res judicata applies, as this issue was determined in prior proceedings.
In order to prevent endless litigation and to insure the finality of judgments, the res judicata doctrine has evolved to bar further litigation of a cause of action that has already been adjudicated. Orselet v. DeMatteo, 206 Conn. 542, 544-45 (1988). When a plaintiff in a lawsuit recovers a valid judgment, his original claim is extinguished, being replaced by rights upon the judgment. Id., citing Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364 (1986). Determining the scope of the extinguished claim must be done pragmatically, “giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations . . . .” Id., 36465. The applicability of res judicata as a defense depends on the peculiar facts of the case. Orselet, supra, 548.
The respondent cites a Finding and Award dated August 11, 1983 and a Supplemental Finding and Award dated November 7, 1986 as evidence that the issue of whether a new injury or recurrence occurred on May 16, 1983 has already been decided. The first award merely states that the claimant learned of his heart disease on or about September 18, 1979 while in the respondent’s employment, thus entitling him to § 7-433c benefits. In the supplemental award, the claimant was found to be temporarily totally disabled due to his heart disease, and his compensation rate was found to be $204.00 per week. There is no mention of a May 16, 1983 injury or date of disability.
This Board is cognizant of the need for finality in litigation. We are also aware of the continuing jurisdiction of a workers’ compensation commissioner over a claim, as a claimant’s future disability and entitlement to benefits cannot always be determined in advance. In this case, the documents cited by the respondent do not show that the claimant’s alleged May 16, 1983 injury was ever considered by the commissioner or raised by either party. This would hardly be unusual in the workers’ compensation forum, including the § 7-433c claims administered here. Cf. McNulty v. Stamford, 37 Conn. App. 835 (1995) (awards under § 7-433c are not benefits payable pursuant to Workers’ Compensation Act). Moreover, the finding that the claimant was totally disabled as of May 16, 1983 would not be facially inconsistent with the 1979 date of injury. We thus hold that the respondent has not proven the applicability of res judicata to this issue.
The commissioner stated in paragraph 9 of his Finding and Award that “the date of injury and the weekly compensation rate are found to be those accepted in the voluntary agreements on file, September 18, 1979 and $204.00 respectively.” He then stated in paragraph 11 that “Claimant has been and is entitled to temporary total disability benefits since May 16, 1983.” Rather than finding that the claimant suffered a new injury or a recurrence, the finding simply addresses the period of the claimant’s total disability.
In Mulligan v. F. S. Electric, 231 Conn. 529 (1994), our Supreme Court decided that a claimant’s benefits should be calculated on the basis of his earnings preceding his incapacity rather than his injury when the two dates differ, regardless of whether or not the specific date of injury is discernible. Id., 539-40’. “Given the legislature’s intent to treat injured workers equally and to provide all incapacitated workers with compensation based on their loss of earning power, we decline to adopt” a result whereby workers with traumatic injuries that cause delayed incapacity would receive benefits based on their earnings preceding their injuries, regardless of their actual lost earning power. Id., 545.
We believe that Mulligan applies equally to § 7-433c cases, insofar as the statute says that an employee “shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under [the Workers’ Compensation Act].” The claimant here was not found to be disabled until May 16, 1983. Therefore, under § 31-310, his average weekly wage must be determined on the basis of his wages during the twenty-six weeks prior to that date, rather than the 1979 date of injury. We also note, however, that the claimant’s claim of entitlement to an educational allowance under § 31-308b(3) (repealed 1991) must fail, as the September 18, 1979 date of injury stands, and P.A. 80-284 was not yet effective on that date.
The commissioner ‘s Finding and Award stated that the claimant sought “greater weekly compensation benefits from 1990 on,” and his award was thus limited to benefits accruing after that date. As to the claim that Liano’s weekly wage calculation between 1983 and 1990 should take into account overtime earned, we note that Szudora, supra, does not prevent a commissioner from including overtime in a wage calculation for § 7-433c benefits accruing before 1990. The claimant is also correct in asserting that it is the respondent, not the claimant, who has the burden of proving the amount of the cap under § 7-433b(b). However, when the claimant disputes the evidence offered by the respondent as to the cap, it is necessarily incumbent on him to take steps to prove the respondent’s figures incorrect.
From the record, it appears that during the formal hearing, the claimant requested that he be reimbursed for overtime benefits improperly omitted from wage calculations for the period before 1990. (See Transcript, p. 3). The problem arises with regard to the cap. The claimant offered evidence that other police officers earned overtime after 1990, but apparently did not seek to obtain overtime records for the period before that date. The commissioner therefore had no evidence before him to contradict the respondent’s wage records establishing a lower cap for the period before 1990. It follows that he did not err in failing to award overtime reimbursement for the years before 1990, as there was nothing in the record to contradict the § 7-433b(b) cap established for those years.
The respondent’s appeal is dismissed. The claimant’s cross-appeal is sustained only with respect to the calculation of his average weekly wage under § 31-310. The case is remanded for entry of an order consistent with this opinion, as well as for a determination of the attorney’s fees due the claimant.


text: 594 EXERCISE OF THE APPROPRIATIVE RIGHT Natural overflow.-With, respect to irrigation-a beneficial use of water which is usually served away from the stream channel rather than within it-the Nevada Supreme Court in Walsh v. Wallace held that to constitute a valid appropriation of water there must be an actual diversion of the same. The cutting of wild grass produced by the overflow of a stream, said the court, or "by the water of Reese river coming down and spreading over the land," was not an appropriation of water within the meaning of that term.16 According to a description of early Nevada conditions in the opinion in a Federal case decided in 1897, based not only on the record in the case but also on the judge's own experiences as one who came to Carson Valley in 1852, it was then common practice to take advantage of the irrigation water chiefly through its overflow.17 However, standards apparently had risen in the half-century that passed before Walsh v. Wallace was decided in 1902; and the 1897 Federal opinion itself contains an excellent summary of the principles by which the extent of one's appropriation is determined, as developed by the courts prior to the era of administrative practice and procedure.18 In 1910, a Federal court stated that the watering of meadowland by use of natural overflow would found no right of appropriation, citing Walsh v. Wallace.19 In an early case, the Colorado Supreme Court took a broad view of the question of appliances in getting irrigation water from a stream to the land to be moistened. In the court's opinion "a dam or contrivance of any kind," with or without ditches, would be legally sufficient if physically effective. Or even if production could be attained "by the natural overflow of water thereon, without the aid of any applicances whatever," such natural moistening would be a sufficient appropriation of the reasonably necessary quantity of water.20 A few years earlier than the supreme court's rendering of this decision, the Colorado Legislature enacted a statute, still extant, which provides that persons who shall have enjoyed the use of water from a natural stream for irrigation of meadowland by the natural overflow or operation of the stream may, in case of diminution of flow, construct ditches for that purpose with priorities as of the statute, unless in so doing they appreciably decreased the quantity or deteriorated the quality of the waters to the use of which defendants had a priority. See also Hunter v. United States, 388 Fed. (2d) 148, 153 (9th Cir. 1967), arising from California, regarding appropriation for livestock use as well as by placing water wheels in a stream to operate mills, citing Ortman v. Dixon, 13 Cal. 33 (1859; Tartar v. Spring Creek Water & Mining Co., 5 Cal. 395 (1855). 16 Walsh v. Wallace, 26 Nev. 299, 327-328, 67 Pac. 914 (1902). 1 nUnion Mill & Min. Co. v. Dangberg, 81 Fed. 73, 100-103 (C.C.D. Nev. 1897), opinion by Judge Thomas P. Hawley. See, in chapter 8, "Elements of the Appropriative Right-Purpose of Use of Water-Stockwatering." 18Id. at 94-95. ^Anderson Land & Stock Co. v. McConnell, 188 Fed. 818, 822 (C.C.D. Nev. 1910). 20Thomas v. Guiraud, 6 Colo. 530, 533 (1883). Successful application of water to beneficial use is the true test, the method of getting the water there being immaterial.

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A1 Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family. 101(a)(15)(A)(i).
A2 Other Foreign Government Official or Employee, or Immediate Family. 101(a)(15)(A)(ii).
A3 Attendant, Servant, or Personal Employee of A1 or A2, or Immediate Family. 101(a)(15)(A)(iii).
B1 Temporary Visitor for Business. 101(a)(15)(B).
B1/B2 Temporary Visitor for Business & Pleasure. 101(a)(15)(B).
C1 Alien in Transit 101(a)(15)(C).
C1/D Combined Transit and Crewmember Visa. 101(a)(15)(C) and (D).
C2 Alien in Transit to United Nations Headquarters District Under Sec. 11.(3), (4), or (5) of the Headquarters Agreement. 101(a)(15)(C).
C3 Foreign Government Official, Immediate Family, Attendant, Servant or Personal Employee, in Transit. 212(d)(8).
CW1 Commonwealth of Northern Mariana Islands Transitional Worker. Section 6(d) of Pub. L. 94-241, as added by sec. 702(a) of Pub. L. 110-229.
CW2 Spouse or Child of CW1 Section 6(d) of Pub. L. 94-241, as added by sec. 702(a) of Pub. L. 110-229.
D Crewmember (Sea or Air). 101(a)(15)(D).
E1 Treaty Trader, Spouse or Child. 101(a)(15)(E)(i).
E2 Treaty Investor, Spouse or Child. 101(a)(15)(E)(ii).
E2C Commonwealth of Northern Mariana Islands Investor, Spouse or Child. Section 6(c) of Pub. L. 94-241, as added by sec. 702(a) of Pub. L. 110-229.
E3 Australian Treaty Alien coming to the United States Solely to Perform Services in a Specialty Occupation. 101(a)(15)(E)(iii).
E3D Spouse or Child of E3 101(a)(15)(E)(iii).
F1 Student in an academic or language training Program. 101(a)(15)(F)(i).
F2 Spouse or Child of F1 101(a)(15)(F)(ii).
F3 Canadian or Mexican national commuter student in an academic or language training program. 101(a)(15)(F)(iii).
G1 Principal Resident Representative of Recognized Foreign Government to International Organization, Staff, or Immediate Family. 101(a)(15)(G)(i).
G2 Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family. 101(a)(15)(G)(ii).
G3 Representative of Nonrecognized or Nonmember Foreign Government to International Organization, or Immediate Family. 101(a)(15)(G)(iii).
G4 International Organization Officer or Employee, or Immediate Family. 101(a)(15)(G)(iv).
G5 Attendant, Servant, or Personal Employee of G1 through G4, or Immediate Family. 101(a)(15)(G)(v).
H4 Spouse or Child of Alien Classified H1B/B1/C, H2A/B, or H-3. 101(a)(15)(H)(iv).
I Representative of Foreign Information Media, Spouse and Child. 101(a)(15)(I).
J2 Spouse or Child of J1 101(a)(15)(J).
K1 Fiance(e) of United States Citizen. 101(a)(15)(K)(i).
K2 Child of Fiance(e) of U.S. Citizen. 101(a)(15)(K)(iii).
K3 Spouse of U.S. citizen awaiting availability of immigrant visa. 101(a)(15)(K)(ii).
K4 Child of K 101(a)(15)(K)(iii).
L1 Intracompany Transferee (Executive, Managerial, and Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation). 101(a)(15)(L).
L2 Spouse or Child of Intracompany Transferee. 101(a)(15)(L).
M1 Vocational Student or Other Nonacademic Student. 101(a)(15)(M)(i).
M2 Spouse or Child of M1 101(a)(15)(M)(ii).
M3 Canadian or Mexican national commuter student (Vocational student or other nonacademic student). 101(a)(15)(M)(iii).
N8 Parent of an Alien Classified SK3 or SN3. 101(a)(15)(N)(i).
N9 Child of N8 or of SK1, SK2, SK4, SN1, SN2 or SN4. 101(a)(15)(N)(ii).
NATO 1 Pincipal Permanent Representative of Member State to NATO (including any of its Subsidiary Bodies) Resident in the U.S. and Resident Members of Official Staff; Secretary General, Assistant Secretaries General, and Executive Secretary of NATO; Other Permanent NATO Officials of Similar Rank, or Immediate Family. Art. 12, 5 UST 1094; Art. 20, 5 UST 1098.
NATO 2 Other Representative of member state to NATO (including any of its Subsidiary Bodies) including Representatives, Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement or in Accordance with the provisions of the “Protocol on the Status of International Military Headquarters”; Members of Such a Force if Issued Visas. Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796.
NATO 3 Official Clerical Staff Accompanying Representative of Member State to NATO (including any of its Subsidiary Bodies), or Immediate Family. Art. 14, 5 UST 1096.
NATO 4 Official of NATO (Other Than Those Classifiable as NATO1), or Immediate Family. Art. 18, 5 UST 1098.
NATO 5 Experts, Other Than NATO Officials Classifiable Under NATO4, Employed in Missions on Behalf of NATO, and their Dependents. Art. 21, 5 UST 1100.
NATO 6 Member of a Civilian Component Accompanying a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement; Member of a Civilian Component Attached to or Employed by an Allied Headquarters Under the “Protocol on the Status of International Military Headquarters” Set Up Pursuant to the North Atlantic Treaty; and their Dependents. Art. 1, 4 UST 1794; Art. 3, 5 UST 877.
NATO 7 Attendant, Servant, or Personal Employee of NATO1, NATO2, NATO 3, NATO4, NATO5, and NATO6 Classes, or Immediate Family. Arts. 12-20, 5 UST 1094-1098.
O1 Alien with Extraordinary Ability in Sciences, Arts, Education, Business or Athletics. 101(a)(15)(O)(i).
O2 Alien Accompanying and Assisting in the Artistic or Athletic Performance by O1. 101(a)(15)(O)(ii).
O3 Spouse or Child of O1 or O2. 101(a)(15)(O)(iii).
P1 Internationally Recognized Athlete or Member of Internationally Recognized Entertainment Group. 101(a)(15)(P)(i).
P2 Artist or Entertainer in a Reciprocal Exchange Program. 101(a)(15)(P)(ii).
P3 Artist or Entertainer in a Culturally Unique Program. 101(a)(15)(P)(iii).
P4 Spouse or Child of P1, P2, or P3. 101(a)(15)(P)(iv).
Q1 Participant in an International Cultural Exchange Program. 101(a)(15)(Q)(i).
R1 Alien in a Religious Occupation. 101(a)(15)(R).
R2 Spouse or Child of R1 101(a)(15)(R).
S5 Certain Aliens Supplying Critical Information Relating to a Criminal Organization or Enterprise. 101(a)(15)(S)(i).
S6 Certain Aliens Supplying Critical Information Relating to Terrorism. 101(a)(15)(S)(ii).
S7 Qualified Family Member of S5 or S6. 101(a)(15)(S).
T1 Victim of a severe form of trafficking in persons. 101(a)(15)(T)(i).
T2 Spouse of T1 101(a)(15)(T)(ii).
T3 Child of T1 101(a)(15)(T)(ii).
T4 Parent of T1 101(a)(15)(T)(ii).
TD Spouse or Child of NAFTA Professional. 214(e)(2).
U1 Victim of criminal activity. 101(a)(15)(U)(i).
U2 Spouse of U1 101(a)(15)(U)(ii).
U3 Child of U1 101(a)(15)(U)(ii).
U4 Parent of U1 under 21 years of age. 101(a)(15)(U)(ii).
U5 Unmarried Sibling under age 18 of U1 under 21 years of age. 101(a)(15)(U)(ii).
V1 Spouse of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa. 101(a)(15)(V)(i) or 101(a)(15)(V)(ii).
V2 Child of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa. 101(a)(15)(V)(i) or 101(a)(15)(V)(ii).
V3 Child of a V1 or V2 203(d) & 101(a)(15)(V)(i)or 101(a)(15)(V)(ii).
IR1 Spouse of U.S. Citizen 201(b).
IR2 Child of U.S. Citizen 201(b).
IR3 Orphan Adopted Abroad By U.S. Citizen. 201(b) & 101(b)(1)(F).
IH3 Child from Hague Convention Country Adopted Abroad by U.S. Citizen. 201(b) & 101(b)(1)(G).
IR4 Orphan to be Adopted in U.S. by U.S. Citizen. 201(b) & 101(b)(1)(F).
IH4 Child from Hague Convention Country to be Adopted in U.S. by U.S. Citizen. 201(b) & 101(b)(1)(G).
IR5 Parent of U.S. Citizen at Least 21 Years of Age. 201(b).
CR1 Spouse of U.S. Citizen (Conditional Status). 201(b) & 216.
CR2 Child of U.S. Citizen (Conditional Status). 201(b) & 216.
IW1 Certain Spouses of Deceased U.S. Citizens. 201(b).
IW2 Child of IW1 201(b).
IB1 Self-petition Spouse of U.S. Citizen. 204(a)(1)(A)(iii).
IB2 Self-petition child of U.S. Citizen. 204(a)(1)(A)(iv).
IB3 Child of IB1 204(a)(1)(A)(iii).
VI5 Parent of U.S. Citizen Who Acquired Permanent the Virgin Islands Resident Status Under Nonimmigrant Alien Virgin Islands Nonimmigrant Alien Adjustment Act. 201(b) & sec. 2 of the Adjustment Act, (Pub. L. 97-271).
AM1 Vietnam Amerasian Principal. 584(b)(1)(A) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Pub. L. 100-102) as amended.
AM2 Spouse or Child of AM1 584(b)(1)(A) and 584(b)(1)(B) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100- 102) amended.
AM3 Natural Mother of AM1 (and Spouse or Child of Such Mother) or Person Who has Acted Mother, Father, or Next-of- Kin of AM1 and Spouse or Child of Such Person). 584(b)(1)(A) and 584(b)(1)(C) of the Foreign Operations in Effect as the Export Financing, and Related Programs Appropriations Act,1988 (as contained in section 101(e) of Public Law 100-102)as amended.
SC1 Person Who Lost U.S. Citizenship by Marriage. 101(a)(27)(B) & 324(a).
SI1 Certain Aliens Employed by the U.S. Government in Iraq or Afghanistan aTranslators or Interpreters. Section 1059 of Pub. L. 109 163 as amended by Pub. L. 110-36.
SI2 Spouse of SI1 Section 1059 Pub. L. 109-163 as amended by Pub. L. 110-36.
SI3 Child of SI1 Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110- 36.
SM1 Alien Recruited Outside the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces for 12 Years. 101(a)(27)(K).
SM2 Spouse of SM1 101(a)(27)(K).
SM3 Child of SM1 101(a)(27)(K).
SQ1 Certain Iraqis or Afghans Employed by or on Behalf of the U.S. Government. Section 602(b) Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181.
SQ2 Spouse of SQ1 Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181.
SQ3 Child of SQ1 Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181.
SU2 Spouse of U1 INA 245(m)(3) & INA 101(a)(15)(U)(ii).
SU3 Child of U1 INA 245(m)(3) & INA 101(a)(15)(U)(ii).
SU5 Parent of U1 INA 245(m)(3) & INA 101(a)(15)(U)(ii).
F11 Unmarried Son or Daughter of U.S. Citizen. 203(a)(1).
F12 Child of F11 203(d) & 203(a)(1).
B11 Self-petition Unmarried Son or Daughter of U.S. Citizen. 204(a)(1)(A)(iv) & 203(a)(1).
B12 Child of B11 203(d), 204(a)(1)(A)(iv) & 203(a)(1).
F21 Spouse of Lawful Permanent Resident. 203(a)(2)(A).
F22 Child of Lawful Permanent Resident. 203(a)(2)(A).
F23 Child of F21 or F22 203(d) & 203(a)(2)(A).
F24 Unmarried Son or Daughter of Lawful Permanent Resident. 203(a)(2)(B).
F25 Child of F24 203(d) & 203(a)(2)(B).
C21 Spouse of Lawful Permanent Resident (Conditional). 203(a)(2)(A) & 216.
C22 Child of Alien Resident (Conditional) 203(a)(2)(A) & 216.
C23 Child of C21 or C22 (Conditional) 203(d) & 203(a)(2)(A) & 216.
C24 Unmarried Son or Daughter of Lawful Permanent Resident (Conditional). 203(a)(2)(B) & 216.
C25 Child of F24 (Conditional) 203(d) & 203(a)(2)(B) & 216.
B21 Self-petition Spouse of Lawful Permanent Resident. 204(a)(1)(B)(ii).
B22 Self-petition Child of Lawful Permanent Resident. 204(a)(1)(B)(iii).
B23 Child of B21 or B22 203(d) & 204(a)(1)(B)(ii).
B24 Self-petition Unmarried Son or Daughter of Lawful Permanent Resident. 204(a)(1)(B)(iii).
B25 Child of B24. 203(d) & 204(a)(1)(B)(iii).
FX1 Spouse of Lawful Permanent Resident. 202(a)(4)(A) & 203(a)(2)(A).
FX2 Child of Lawful Permanent Resident. 202(a)(4)(A) & 203(a)(2)(A).
FX3 Child of FX1 or FX2 202(a)(4)(A) & 203(a)(2)(A) & 203(d).
CX1 Spouse of Lawful Permanent Resident (Conditional). 202(a)(4)(A) & 203(a)(2)(A) & 216.
CX2 Child of Lawful Permanent Resident (Conditional). 202(a)(4)(A) & 203(a)(2)(A) & 216.
CX3 Child of CX1 or CX2 (Conditional). 202(a)(4)(A) & 203(a)(2)(A) & 203(d) & 216.
BX1 Self-petition Spouse of Lawful Permanent Resident. 204(a)(1)(B)(ii).
BX2 Self-petition Child of Lawful Permanent Resident. 204(a)(1)(B)(iii).
BX3 Child of BX1 or BX2 204(a)(1)(B)(ii) & 203(d).
F31 Married Son or Daughter of U.S. Citizen. 203(a)(3).
F32 Spouse of F31 203(d) & 203(a)(3).
F33 Child of F31 203(d) & 203(a)(3).
C31 Married Son or Daughter of U.S. Citizen (Conditional). 203(a)(3) & 216.
C32 Spouse of C31 (Conditional) 203(d) & 203(a)(3) & 216.
C33 Child of C31 (Conditional) 203(d) & 203(a)(3) & 216.
B31 Self-petition Married Son or Daughter of U.S. Citizen. 204(a)(1)(A)(iv) & 203(a)(3).
B32 Spouse of B31 203(d), 204(a)(1)(A)(iv) & 203(a)(3).
B33 Child of B31 203(d), 204(a)(1)(A)(iv) & 203(a)(3).
F41 Brother or Sister of U.S. Citizen at Least 21 Years of Age. 203(a)(4).
E11 Alien with Extraordinary Ability. 203(b)(1)(A).
E12 Outstanding Professor or Researcher. 203(b)(1)(B).
E13 Multinational Executive or Manager. 203(b)(1)(C).
E14 Spouse of E11, E12, or E13 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C).
E15 Child of E11, E12, or E13. 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C).
E21 Professional Holding Advanced Degree or Alien of Exceptional Ability. 203(b)(2).
E22 Spouse of E21 203(d) & 203(b)(2).
E23 Child of E21 203(d) & 203(b)(2).
E32 Professional Holding Baccalaureate Degree. 203(b)(3)(A)(ii).
E34 Spouse of E31 or E32 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii).
E35 Child of E31 or E32 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii).
EW3 Other Worker (Subgroup Numerical Limit). 203(b)(3)(A)(iii).
EW4 Spouse of EW3 203(d) & 203(b)(3)(A)(iii).
EW5 Child of EW3 203(d) & 203(b)(3)(A)(iii).
BC1 Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization. 101(a)(27)(M) & 203(b)(4).
BC2 Accompanying spouse of BC1. 101(a)(27)(M) & 203(b)(4).
BC3 Accompanying child of BC1. 101(a)(27)(M) & 203(b)(4).
SD1 Minister of Religion 101(a)(27)(C)(ii)(I) & 203(b)(4).
SD2 Spouse of SD1 101(a)(27)(C)(ii)(I); 203(b)(4).
SD3 Child of SD1 101(a)(27)(C)(ii)(I); 203(b)(4).
SE1 Certain Employees or Former Employees of the U.S. Government Abroad. 101(a)(27)(D) & 203(b)(4).
SE2 Spouse of SE1 101(a)(27)(D) & 203(b)(4).
SE3 Child of SE1 101(a)(27)(D) & 203(b)(4).
SF1 Certain Former Employees of the Panama Canal Company or Canal Zone Government. 101(a)(27)(E) & 203(b)(4).
SF2 Spouse or Child of SF1 101(a)(27)(E) & 203 (b)(4).
SG1 Certain Former Employees of the U.S. Government in the Panama Canal Zone. 101(a)(27)(F) & 203(b)(4).
SG2 Spouse or Child of SG1 101(a)(27)(F) & 203(b)(4).
SH1 Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979. 101(a)(27)(G) & 203(b)(4).
SH2 Spouse or Child of SH1 101(a)(27)(G) & 203(b)(4).
SJ1 Certain Foreign Medical Graduates (Adjustments Only). 101(a)(27)(H).
SJ2 Accompanying Spouse or Child of SJ1. 101(a)(27)(H) & 203(b)(4).
SK1 Certain Retired International Organization employees. 101(a)(27)(I)(iii) & 203(b)(4).
SK2 Spouse of SK1 101(a)(27)(I)(iv) & 203(b)(4).
SK3 Certain Unmarried Sons or Daughters of an International Organization Employee. 101(a)(27)(I)(i) & 203(b)(4).
SK4 Certain Surviving Spouses of a deceased International Organization Employee. 101(a)(27)(I)(ii) & 203(b)(4).
SL1 Juvenile Court Dependent(Adjustment Only). 101(a)(27)(J) & 203(b)(4).
SN1 Certain retired NATO6 Civilians. 101(a)(27)(L) & 203(b)(4).
SN2 Spouse of SN1 101(a)(27)(L) & 203(b)(4).
SN3 Certain unmarried sons or daughters of NATO6 civilian employees. 101(a)(27)(L) & 203(b)(4).
SN4 Certain surviving spouses of deceased NATO6 civilian employees. 101(a)(27)(L) & 203(b)(4).
SP Alien Beneficiary of a petition or labor certification application filed prior to September 11, 2001, if the petition or application was rendered void due to a terrorist act of September 11, 2001. Spouse, child of such alien, or the grandparent of a child orphaned by a terrorist act of September 11, 2001. Section 421 of Public Law 107-56.
SR1 Certain Religious Workers. 101(a)(27)(C)(ii)(II) & (III) as amended, 203(b)(4).
SR2 Spouse of SR1 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4).
SR3 Child of SR1 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4).
C51 Employment Creation OUTSIDE Targeted Areas. 203(b)(5)(A).
C52 Spouse of C51 203(d) & 203(b)(5)(A).
C53 Child of C51 203(d) & 203(b)(5)(A).
T51 Employment Creation IN Targeted Rural/High Unemployment Area. 203(b)(5)(B).
T52 Spouse of T51 203(d) & 203 (b)(5)(B).
T53 Child of T51 203(d) & 203(b)(5)(B).
R51 Investor Pilot Program, Not in Targeted Area. 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended.
R52 Spouse of R51 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended.
R53 Child of R51 203(d) & 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended.
I51 Investor Pilot Program, In Targeted Area. 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended.
I52 Spouse of I51 203(d) & 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended.
I53 Child of I51 203(d) & 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended.
DV2 Spouse of DV1 203(d) & 203(c).
DV3 Child of DV1 203(d) & 203(c).
Immigrants and Nonimmigrants Visa Classification Symbols 74 FR 61517 DATE OF PUBLICATION: November 25, 2009 A visa issued to a nonimmigrant alien within one of the classes described in this section shall bear an appropriate visa symbol to show the classification of the alien. The symbol shall be inserted in the space provided on the visa. The following visa symbols shall be used: NONIMMIGRANTS Symbol Class Section of law A1 Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family. 101(a)(15)(A)(i). A2 Other Foreign Government Official or Employee, or Immediate Family. 101(a)(15)(A)(ii). A3 Attendant, Servant, or Personal Employee of A1 or A2, or Immediate Family. 101(a)(15)(A)(iii). B1 Temporary Visitor for Business. 101(a)(15)(B). B2 Temporary Visitor for Pleasure. 101(a)(15)(B) B1/B2 Temporary Visitor for Business & Pleasure. 101(a)(15)(B). C1 Alien in Transit 101(a)(15)(C). C1/D Combined Transit and Crewmember Visa. 101(a)(15)(C) and (D). C2 Alien in Transit to United Nations Headquarters District Under Sec. 11.(3), (4), or (5) of the Headquarters Agreement. 101(a)(15)(C). C3 Foreign Government Official, Immediate Family, Attendant, Servant or Personal Employee, in Transit. 212(d)(8). CW1 Commonwealth of Northern Mariana Islands Transitional Worker. Section 6(d) of Pub. L. 94-241, as added by sec. 702(a) of Pub. L. 110-229. CW2 Spouse or Child of CW1 Section 6(d) of Pub. L. 94-241, as added by sec. 702(a) of Pub. L. 110-229. D Crewmember (Sea or Air). 101(a)(15)(D). E1 Treaty Trader, Spouse or Child. 101(a)(15)(E)(i). E2 Treaty Investor, Spouse or Child. 101(a)(15)(E)(ii). E2C Commonwealth of Northern Mariana Islands Investor, Spouse or Child. Section 6(c) of Pub. L. 94-241, as added by sec. 702(a) of Pub. L. 110-229. E3 Australian Treaty Alien coming to the United States Solely to Perform Services in a Specialty Occupation. 101(a)(15)(E)(iii). E3D Spouse or Child of E3 101(a)(15)(E)(iii). E3R Returning E3 101(a)(15)(E)(iii). F1 Student in an academic or language training Program. 101(a)(15)(F)(i). F2 Spouse or Child of F1 101(a)(15)(F)(ii). F3 Canadian or Mexican national commuter student in an academic or language training program. 101(a)(15)(F)(iii). G1 Principal Resident Representative of Recognized Foreign Government to International Organization, Staff, or Immediate Family. 101(a)(15)(G)(i). G2 Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family. 101(a)(15)(G)(ii). G3 Representative of Nonrecognized or Nonmember Foreign Government to International Organization, or Immediate Family. 101(a)(15)(G)(iii). G4 International Organization Officer or Employee, or Immediate Family. 101(a)(15)(G)(iv). G5 Attendant, Servant, or Personal Employee of G1 through G4, or Immediate Family. 101(a)(15)(G)(v). H1B Alien in a Specialty Occupation (Profession). 101(a)(15)(H)(i)(b) H1B1 Chilean or Singaporean National to Work in a Specialty Occupation. 101(a)(15)(H)(i)(b1) H1C Nurse in health professional shortage area. 101(a)(15)(H)(i)(c) H2A Temporary Worker Performing Agricultural Services Unavailable in the United States. 101(a)(15)(H)(ii)(a) H2B Temporary Worker Performing Other Services Unavailable in the United States. 101(a)(15)(H)(ii)(b) H3 Trainee 101(a)(15)(H)(iii). H4 Spouse or Child of Alien Classified H1B/B1/C, H2A/B, or H-3. 101(a)(15)(H)(iv). I Representative of Foreign Information Media, Spouse and Child. 101(a)(15)(I). J1 Exchange Visitor 101(a)(15)(J). J2 Spouse or Child of J1 101(a)(15)(J). K1 Fiance(e) of United States Citizen. 101(a)(15)(K)(i). K2 Child of Fiance(e) of U.S. Citizen. 101(a)(15)(K)(iii). K3 Spouse of U.S. citizen awaiting availability of immigrant visa. 101(a)(15)(K)(ii). K4 Child of K 101(a)(15)(K)(iii). L1 Intracompany Transferee (Executive, Managerial, and Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation). 101(a)(15)(L). L2 Spouse or Child of Intracompany Transferee. 101(a)(15)(L). M1 Vocational Student or Other Nonacademic Student. 101(a)(15)(M)(i). M2 Spouse or Child of M1 101(a)(15)(M)(ii). M3 Canadian or Mexican national commuter student (Vocational student or other nonacademic student). 101(a)(15)(M)(iii). N8 Parent of an Alien Classified SK3 or SN3. 101(a)(15)(N)(i). N9 Child of N8 or of SK1, SK2, SK4, SN1, SN2 or SN4. 101(a)(15)(N)(ii). NATO 1 Pincipal Permanent Representative of Member State to NATO (including any of its Subsidiary Bodies) Resident in the U.S. and Resident Members of Official Staff; Secretary General, Assistant Secretaries General, and Executive Secretary of NATO; Other Permanent NATO Officials of Similar Rank, or Immediate Family. Art. 12, 5 UST 1094; Art. 20, 5 UST 1098. NATO 2 Other Representative of member state to NATO (including any of its Subsidiary Bodies) including Representatives, Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement or in Accordance with the provisions of the “Protocol on the Status of International Military Headquarters”; Members of Such a Force if Issued Visas. Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796. NATO 3 Official Clerical Staff Accompanying Representative of Member State to NATO (including any of its Subsidiary Bodies), or Immediate Family. Art. 14, 5 UST 1096. NATO 4 Official of NATO (Other Than Those Classifiable as NATO1), or Immediate Family. Art. 18, 5 UST 1098. NATO 5 Experts, Other Than NATO Officials Classifiable Under NATO4, Employed in Missions on Behalf of NATO, and their Dependents. Art. 21, 5 UST 1100. NATO 6 Member of a Civilian Component Accompanying a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement; Member of a Civilian Component Attached to or Employed by an Allied Headquarters Under the “Protocol on the Status of International Military Headquarters” Set Up Pursuant to the North Atlantic Treaty; and their Dependents. Art. 1, 4 UST 1794; Art. 3, 5 UST 877. NATO 7 Attendant, Servant, or Personal Employee of NATO1, NATO2, NATO 3, NATO4, NATO5, and NATO6 Classes, or Immediate Family. Arts. 12-20, 5 UST 1094-1098. O1 Alien with Extraordinary Ability in Sciences, Arts, Education, Business or Athletics. 101(a)(15)(O)(i). O2 Alien Accompanying and Assisting in the Artistic or Athletic Performance by O1. 101(a)(15)(O)(ii). O3 Spouse or Child of O1 or O2. 101(a)(15)(O)(iii). P1 Internationally Recognized Athlete or Member of Internationally Recognized Entertainment Group. 101(a)(15)(P)(i). P2 Artist or Entertainer in a Reciprocal Exchange Program. 101(a)(15)(P)(ii). P3 Artist or Entertainer in a Culturally Unique Program. 101(a)(15)(P)(iii). P4 Spouse or Child of P1, P2, or P3. 101(a)(15)(P)(iv). Q1 Participant in an International Cultural Exchange Program. 101(a)(15)(Q)(i). R1 Alien in a Religious Occupation. 101(a)(15)(R). R2 Spouse or Child of R1 101(a)(15)(R). S5 Certain Aliens Supplying Critical Information Relating to a Criminal Organization or Enterprise. 101(a)(15)(S)(i). S6 Certain Aliens Supplying Critical Information Relating to Terrorism. 101(a)(15)(S)(ii). S7 Qualified Family Member of S5 or S6. 101(a)(15)(S). T1 Victim of a severe form of trafficking in persons. 101(a)(15)(T)(i). T2 Spouse of T1 101(a)(15)(T)(ii). T3 Child of T1 101(a)(15)(T)(ii). T4 Parent of T1 101(a)(15)(T)(ii). T5 Unmarried Sibling under age 18 of T1. as amended by sec. 201(a) of Pub. L. 110-457. 101(a)(15)(T)(ii) TN NAFTA Professional 214(e)(2). TD Spouse or Child of NAFTA Professional. 214(e)(2). U1 Victim of criminal activity. 101(a)(15)(U)(i). U2 Spouse of U1 101(a)(15)(U)(ii). U3 Child of U1 101(a)(15)(U)(ii). U4 Parent of U1 under 21 years of age. 101(a)(15)(U)(ii). U5 Unmarried Sibling under age 18 of U1 under 21 years of age. 101(a)(15)(U)(ii). V1 Spouse of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa. 101(a)(15)(V)(i) or 101(a)(15)(V)(ii). V2 Child of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa. 101(a)(15)(V)(i) or 101(a)(15)(V)(ii). V3 Child of a V1 or V2 203(d) & 101(a)(15)(V)(i)or 101(a)(15)(V)(ii). IMMIGRANTS Symbol Class Section of law IR1 Spouse of U.S. Citizen 201(b). IR2 Child of U.S. Citizen 201(b). IR3 Orphan Adopted Abroad By U.S. Citizen. 201(b) & 101(b)(1)(F). IH3 Child from Hague Convention Country Adopted Abroad by U.S. Citizen. 201(b) & 101(b)(1)(G). IR4 Orphan to be Adopted in U.S. by U.S. Citizen. 201(b) & 101(b)(1)(F). IH4 Child from Hague Convention Country to be Adopted in U.S. by U.S. Citizen. 201(b) & 101(b)(1)(G). IR5 Parent of U.S. Citizen at Least 21 Years of Age. 201(b). CR1 Spouse of U.S. Citizen (Conditional Status). 201(b) & 216. CR2 Child of U.S. Citizen (Conditional Status). 201(b) & 216. IW1 Certain Spouses of Deceased U.S. Citizens. 201(b). IW2 Child of IW1 201(b). IB1 Self-petition Spouse of U.S. Citizen. 204(a)(1)(A)(iii). IB2 Self-petition child of U.S. Citizen. 204(a)(1)(A)(iv). IB3 Child of IB1 204(a)(1)(A)(iii). VI5 Parent of U.S. Citizen Who Acquired Permanent the Virgin Islands Resident Status Under Nonimmigrant Alien Virgin Islands Nonimmigrant Alien Adjustment Act. 201(b) & sec. 2 of the Adjustment Act, (Pub. L. 97-271). Vietnam Amerasian Immigrants AM1 Vietnam Amerasian Principal. 584(b)(1)(A) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Pub. L. 100-102) as amended. AM2 Spouse or Child of AM1 584(b)(1)(A) and 584(b)(1)(B) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100- 102) amended. AM3 Natural Mother of AM1 (and Spouse or Child of Such Mother) or Person Who has Acted Mother, Father, or Next-of- Kin of AM1 and Spouse or Child of Such Person). 584(b)(1)(A) and 584(b)(1)(C) of the Foreign Operations in Effect as the Export Financing, and Related Programs Appropriations Act,1988 (as contained in section 101(e) of Public Law 100-102)as amended. Special Immigrants SB1 Returning Resident 101(a)(27)(A). SC1 Person Who Lost U.S. Citizenship by Marriage. 101(a)(27)(B) & 324(a). SC2 Person Who Lost U.S. Citizenship by Serving in Foreign Armed Forces. 101(a)(27)(B) & 327 SI1 Certain Aliens Employed by the U.S. Government in Iraq or Afghanistan aTranslators or Interpreters. Section 1059 of Pub. L. 109 163 as amended by Pub. L. 110-36. SI2 Spouse of SI1 Section 1059 Pub. L. 109-163 as amended by Pub. L. 110-36. SI3 Child of SI1 Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110- 36. SM1 Alien Recruited Outside the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces for 12 Years. 101(a)(27)(K). SM2 Spouse of SM1 101(a)(27)(K). SM3 Child of SM1 101(a)(27)(K). SQ1 Certain Iraqis or Afghans Employed by or on Behalf of the U.S. Government. Section 602(b) Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. SQ2 Spouse of SQ1 Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. SQ3 Child of SQ1 Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. SU2 Spouse of U1 INA 245(m)(3) & INA 101(a)(15)(U)(ii). SU3 Child of U1 INA 245(m)(3) & INA 101(a)(15)(U)(ii). SU5 Parent of U1 INA 245(m)(3) & INA 101(a)(15)(U)(ii). Family-Sponsored Preferences Family 1st Preference F11 Unmarried Son or Daughter of U.S. Citizen. 203(a)(1). F12 Child of F11 203(d) & 203(a)(1). B11 Self-petition Unmarried Son or Daughter of U.S. Citizen. 204(a)(1)(A)(iv) & 203(a)(1). B12 Child of B11 203(d), 204(a)(1)(A)(iv) & 203(a)(1). Family 2nd Preference (Subject to Country Limitations) F21 Spouse of Lawful Permanent Resident. 203(a)(2)(A). F22 Child of Lawful Permanent Resident. 203(a)(2)(A). F23 Child of F21 or F22 203(d) & 203(a)(2)(A). F24 Unmarried Son or Daughter of Lawful Permanent Resident. 203(a)(2)(B). F25 Child of F24 203(d) & 203(a)(2)(B). C21 Spouse of Lawful Permanent Resident (Conditional). 203(a)(2)(A) & 216. C22 Child of Alien Resident (Conditional) 203(a)(2)(A) & 216. C23 Child of C21 or C22 (Conditional) 203(d) & 203(a)(2)(A) & 216. C24 Unmarried Son or Daughter of Lawful Permanent Resident (Conditional). 203(a)(2)(B) & 216. C25 Child of F24 (Conditional) 203(d) & 203(a)(2)(B) & 216. B21 Self-petition Spouse of Lawful Permanent Resident. 204(a)(1)(B)(ii). B22 Self-petition Child of Lawful Permanent Resident. 204(a)(1)(B)(iii). B23 Child of B21 or B22 203(d) & 204(a)(1)(B)(ii). B24 Self-petition Unmarried Son or Daughter of Lawful Permanent Resident. 204(a)(1)(B)(iii). B25 Child of B24. 203(d) & 204(a)(1)(B)(iii). Family 2nd Preference (Exempt from Country Limitations) FX1 Spouse of Lawful Permanent Resident. 202(a)(4)(A) & 203(a)(2)(A). FX2 Child of Lawful Permanent Resident. 202(a)(4)(A) & 203(a)(2)(A). FX3 Child of FX1 or FX2 202(a)(4)(A) & 203(a)(2)(A) & 203(d). CX1 Spouse of Lawful Permanent Resident (Conditional). 202(a)(4)(A) & 203(a)(2)(A) & 216. CX2 Child of Lawful Permanent Resident (Conditional). 202(a)(4)(A) & 203(a)(2)(A) & 216. CX3 Child of CX1 or CX2 (Conditional). 202(a)(4)(A) & 203(a)(2)(A) & 203(d) & 216. BX1 Self-petition Spouse of Lawful Permanent Resident. 204(a)(1)(B)(ii). BX2 Self-petition Child of Lawful Permanent Resident. 204(a)(1)(B)(iii). BX3 Child of BX1 or BX2 204(a)(1)(B)(ii) & 203(d). Family 3rd Preference F31 Married Son or Daughter of U.S. Citizen. 203(a)(3). F32 Spouse of F31 203(d) & 203(a)(3). F33 Child of F31 203(d) & 203(a)(3). C31 Married Son or Daughter of U.S. Citizen (Conditional). 203(a)(3) & 216. C32 Spouse of C31 (Conditional) 203(d) & 203(a)(3) & 216. C33 Child of C31 (Conditional) 203(d) & 203(a)(3) & 216. B31 Self-petition Married Son or Daughter of U.S. Citizen. 204(a)(1)(A)(iv) & 203(a)(3). B32 Spouse of B31 203(d), 204(a)(1)(A)(iv) & 203(a)(3). B33 Child of B31 203(d), 204(a)(1)(A)(iv) & 203(a)(3). Family 4th Preference F41 Brother or Sister of U.S. Citizen at Least 21 Years of Age. 203(a)(4). F42 Spouse of F41 203(d) & 203(a)(4). F43 Child of F41 203(d) & 203(a)(4). Employment-Based Preferences Employment 1st Preference (Priority Workers) E11 Alien with Extraordinary Ability. 203(b)(1)(A). E12 Outstanding Professor or Researcher. 203(b)(1)(B). E13 Multinational Executive or Manager. 203(b)(1)(C). E14 Spouse of E11, E12, or E13 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). E15 Child of E11, E12, or E13. 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). Employment 2nd Preference (Professionals Holding Advanced Degrees or Persons of Exceptional Ability) E21 Professional Holding Advanced Degree or Alien of Exceptional Ability. 203(b)(2). E22 Spouse of E21 203(d) & 203(b)(2). E23 Child of E21 203(d) & 203(b)(2). Employment 3rd Preference (Skilled Workers, Professionals, and Other Workers) E31 Skilled Worker 203(b)(3)(A)(i). E32 Professional Holding Baccalaureate Degree. 203(b)(3)(A)(ii). E34 Spouse of E31 or E32 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). E35 Child of E31 or E32 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). EW3 Other Worker (Subgroup Numerical Limit). 203(b)(3)(A)(iii). EW4 Spouse of EW3 203(d) & 203(b)(3)(A)(iii). EW5 Child of EW3 203(d) & 203(b)(3)(A)(iii). Employment 4th Preference (Certain Special Immigrants) BC1 Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization. 101(a)(27)(M) & 203(b)(4). BC2 Accompanying spouse of BC1. 101(a)(27)(M) & 203(b)(4). BC3 Accompanying child of BC1. 101(a)(27)(M) & 203(b)(4). SD1 Minister of Religion 101(a)(27)(C)(ii)(I) & 203(b)(4). SD2 Spouse of SD1 101(a)(27)(C)(ii)(I); 203(b)(4). SD3 Child of SD1 101(a)(27)(C)(ii)(I); 203(b)(4). SE1 Certain Employees or Former Employees of the U.S. Government Abroad. 101(a)(27)(D) & 203(b)(4). SE2 Spouse of SE1 101(a)(27)(D) & 203(b)(4). SE3 Child of SE1 101(a)(27)(D) & 203(b)(4). SF1 Certain Former Employees of the Panama Canal Company or Canal Zone Government. 101(a)(27)(E) & 203(b)(4). SF2 Spouse or Child of SF1 101(a)(27)(E) & 203 (b)(4). SG1 Certain Former Employees of the U.S. Government in the Panama Canal Zone. 101(a)(27)(F) & 203(b)(4). SG2 Spouse or Child of SG1 101(a)(27)(F) & 203(b)(4). SH1 Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979. 101(a)(27)(G) & 203(b)(4). SH2 Spouse or Child of SH1 101(a)(27)(G) & 203(b)(4). SJ1 Certain Foreign Medical Graduates (Adjustments Only). 101(a)(27)(H). SJ2 Accompanying Spouse or Child of SJ1. 101(a)(27)(H) & 203(b)(4). SK1 Certain Retired International Organization employees. 101(a)(27)(I)(iii) & 203(b)(4). SK2 Spouse of SK1 101(a)(27)(I)(iv) & 203(b)(4). SK3 Certain Unmarried Sons or Daughters of an International Organization Employee. 101(a)(27)(I)(i) & 203(b)(4). SK4 Certain Surviving Spouses of a deceased International Organization Employee. 101(a)(27)(I)(ii) & 203(b)(4). SL1 Juvenile Court Dependent(Adjustment Only). 101(a)(27)(J) & 203(b)(4). SN1 Certain retired NATO6 Civilians. 101(a)(27)(L) & 203(b)(4). SN2 Spouse of SN1 101(a)(27)(L) & 203(b)(4). SN3 Certain unmarried sons or daughters of NATO6 civilian employees. 101(a)(27)(L) & 203(b)(4). SN4 Certain surviving spouses of deceased NATO6 civilian employees. 101(a)(27)(L) & 203(b)(4). SP Alien Beneficiary of a petition or labor certification application filed prior to September 11, 2001, if the petition or application was rendered void due to a terrorist act of September 11, 2001. Spouse, child of such alien, or the grandparent of a child orphaned by a terrorist act of September 11, 2001. Section 421 of Public Law 107-56. SR1 Certain Religious Workers. 101(a)(27)(C)(ii)(II) & (III) as amended, 203(b)(4). SR2 Spouse of SR1 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). SR3 Child of SR1 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). Employment 5th Preference (Employment Creation Conditional Status) C51 Employment Creation OUTSIDE Targeted Areas. 203(b)(5)(A). C52 Spouse of C51 203(d) & 203(b)(5)(A). C53 Child of C51 203(d) & 203(b)(5)(A). T51 Employment Creation IN Targeted Rural/High Unemployment Area. 203(b)(5)(B). T52 Spouse of T51 203(d) & 203 (b)(5)(B). T53 Child of T51 203(d) & 203(b)(5)(B). R51 Investor Pilot Program, Not in Targeted Area. 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended. R52 Spouse of R51 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended. R53 Child of R51 203(d) & 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended. I51 Investor Pilot Program, In Targeted Area. 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended. I52 Spouse of I51 203(d) & 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended. I53 Child of I51 203(d) & 203(b)(5) & sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102- 395), as amended. Other Numerically Limited Categories Diversity Immigrants DV1 Diversity Immigrant 203(c). DV2 Spouse of DV1 203(d) & 203(c). DV3 Child of DV1 203(d) & 203(c).

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