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US Immigration Rule(s) Affecting Hijab

by Yosef Yacob

It has been suggested that the practice of wearing a veil originated in the Byzantine Empire, long before the rise of Islam and was in fact previously uncommon among the Arab tribes. Progressively more, Islamic dress, notably the variety of headdresses worn by Muslim women, has become a prominent symbol of religious faith. In several countries this devotion to faith has led to political controversies and proposals for a legal ban.

The reasons given for prohibition vary. Apparently less politicized arguments include that in specific professions (teaching), a ban on "veils" is justified on the basis that face-to-face communication and eye contact is necessary, and on security grounds as a measure to ascertain true identity and to deter fraud.

Increasingly, applicants and petitioners for immigration benefits provide required images wearing veils and other forms of head coverings that do not meet the standard and traditional law enforcement specifications. Hence, the USCIS, as a regulatory agency tasked with a national security concern, is not immune from the controversy.

This commentary examines the specific USCIS rule which has a direct bearing on the practice of wearing a headdress. Namely, photographs required in connection with various applications and or petitions seeking immigration benefits.

The commentary highlights the specific applicable rule(s) and recommends that the USCIS more clearly articulate its requirements in light of the underlying purposes and constitutional limitations.


The Holy Quran states: "Say to the believing men that they should lower their gaze and guard their modesty...And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and adornments except what (must ordinarily) appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers...(a list of exceptions)" [Chapter 24, verses 30-31] Also, "O Prophet! Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons...that they should be known and not molested." [Chapter 33, verse 59]

Accordingly, some Muslim scholars argue that dressing modestly by Muslim Women is an Islamic religious mandate commanded by God in the Quran and re-iterated by Prophet Muhammad in his teachings and practice (Sunnah). In addition to the reference in the Quran and the Sunnah, Muslim scholars further mention the following as pragmatic reasons for the veil:

  • Men would not judge women by appearance but rather would evaluate women on the basis of personality, character, and morals.
  • Wearing a veil helps in preventing indecent acts or thoughts.
  • When wearing a veil, women feel more modest and experience increased self respect and confidence.
  • By wearing a veil, women needn't worry about superficially enhancing facial appearance.
  • Veils provide Muslims with a distinct identity.
  • Wearing a veil and modesty is pleasing to Allah.

The Hijab

This principle of dressing modestly is known as hijab [literally Arabic meaning "to cover"] and the concept has spawned a variety of headdresses and veils worn by Muslim women.

The khimar is a type of headscarf. The niqab and burqa are two kinds of veils that cover most of the face except for a slit or hole for the eyes. The boshiya is a veil that may be worn over a headscarf; it covers the entire face and is made of a sheer fabric so the wearer is able to see through it The Afghan burqa covers the entire body, obscuring the face completely, except for a grille or netting over the eyes to allow the wearer to see.

The Hijab and Western Europe and the Middle East

As noted in the introduction, the wearing of head and especially face coverings by Muslim women has raised political issues in the West [see for example Hijab controversy in Quebec, Islamic dress controversy in Europe,

There is also continuing debate taking place in secular Muslim countries such as Turkey, a Muslim majority nation, which banned the headscarves in certain institutions including universities and government buildings, due to the türban (a Turkish styled headscarf for men) being viewed as a political symbol of Islam, [see Headscarf controversy in Turkey].

Like Turkey, presently, two Muslim countries, Tunisia (since 1981), Syria (since 2010), have banned the wearing of all overt religious symbols, including the hijab, in institutions. In other Muslim states such as Morocco, there have been some restrictions placed against women who wear the hijab. In these instances, the hijab in is viewed as a sign of political Islam or fundamentalism against secular governments.

Among European countries, France (since 2004), and the Dutch government have also introduced a ban on face-covering clothing in varying degrees, ranging from bans on "burqa" to the standard hijab. On April 11, 2011, France became the world's first country to ban Islamic face veils anywhere in public, from outdoor marketplaces to the sidewalks and boutiques of the Champs-Elysees on grounds that the veils imprison women and contradict the nation's secular values of dignity and equality.

The Hijab and the US

In the United States, the First Amendment of the Constitution guarantees a person's right to freely practice the religion of his or her choice. Such a clearly-stated freedom may not be violated except for a greater public good.

For Muslims, this choice often includes a wearing the hijab. Notwithstanding, some institutions require that ID photographs, for the safety and protection of everyone, must show a person's complete head and face. Such institutions demand that all head coverings of any type must be removed for the photo.

In the United States, individual States implement their own rules with regards to driver licenses and other state ID documents. In many states, an exception is made for religious headwear as long as the person's face is clearly visible. Accordingly, several government agencies have made exceptions to this rule in the case of religious headwear, as long as the subject can be easily identifiable through a photograph of the face only.

Typically, a signed statement from the applicant must be submitted with the application verifying the item is worn daily for religious reasons. In all cases, no item or attire should cover or otherwise obscure any part of the face.

In 2002 in Florida, a Muslim woman petitioned for the right to wear a face veil in a driver license photo, in accordance with her interpretation of the Islamic dress requirements. The Florida court denied her claim reasoning that a brief removal of her face veil for an identity photograph was not an unreasonable request and therefore did not violate her religious rights.

Recently, there have been deliberations taking place in the Legislatures of several U.S. states regarding requirements and standards for the issuance of identity cards and a driver's license. In Oklahoma and Minnesota, legislation has been introduced which would require a full photo with no head covering, and no exception is made for religious clothing of any kind.

Hijab and the USCIS

As noted in the introduction, in the context of the immigration laws, the issue is equally of the essence.

§ Sec. 204.2 (a)(2)Petitions for relatives, widows and widowers, and abused spouses and children. (Amended 3/26/96; 61 FR 13061) in pertinent part provides:

Evidence for petition for a spouse. A petition submitted on behalf of a spouse must be accompanied by a recent ADIT-style photograph of the petitioner, a recent ADIT-style photograph of beneficiary,….However, non-ADITstyle photographs may be accepted by he district director when the petitioner or beneficiary reside(s) in a country where such photographs are unavailable or cost prohibitive.

However, on August 2, 2004, USCIS announced a change in the regulatory standard set forth in the above regulati0on. The public announcement reads:

Washington, DC - In accordance with language specified in the Border Security Act of 2003, U.S. Citizenship and Immigration Services (USCIS) today announced a change in the photo requirements for all applicants from a three-quarter face position to a standard, full frontal face position to take effect August 2, 2004.

USCIS will accept both three-quarter and full color frontal photographs until September 1, 2004 after which only full frontal color will be accepted.

The application process of customers who have already submitted materials that include color photos with the three-quarter standard will not be affected by this change. All photos must be of just the applicant. Where more than one photo is required, all photos of the person must be identical.

Following the public announcement, on August 25, 2004, William R. Yates, then Associate Director for Operations U.S. Citizenship and Immigration Services, in a policy memorandum entitled "Reminder of Change in Photograph Standard" directed USCIS staff as follows:

USCIS is adopting the Department of State's photograph guidance for passport style photographs in its entirety. The new guidance completely replaces previous USCIS (or INS) guidance on photographs, including guidance on the dimensions, age and religious accommodations for photographs. Guidelines for producing passport style photographs are located at [sic] The state Department requirements provide that the photographs must be:

  • In color
  • Printed on photo quality paper
  • 2 x 2 inches (51 x 51 mm) in size
  • Sized such that the head is between 1 inch and 1 3/8 inches (between 25 and 35 mm) from the bottom of the chin to the top of the head.
  • Taken within the last 6 months to reflect your current appearance. Taken in front of a plain white or off-white background.
  • Taken in full-face view directly facing the camera.
  • With a neutral facial expression and both eyes open.
  • Taken in clothing that you normally wear on a daily basis.
  • Uniforms should not be worn in your photo, except religious clothing that is worn daily.
  • Do not wear a hat or head covering that obscures the hair or hairline, unless worn daily for a religious purpose.
  • Your full face must be visible, and the head covering must not cast any shadows on your face.
  • Headphones, wireless hands-free devices or similar items are not acceptable in your photo.
  • If you normally wear prescription glasses, a hearing device or similar articles, they may be worn for your photo.
  • Dark glasses or non-prescription glasses with tinted lenses are not acceptable unless you need them for medical reasons (a medical certificate may be required).
  • Glare on glasses is not acceptable in your photo. Glare can be avoided with a slight downward tilt of the glasses or by removing the glasses or by turning off the camera flash.

Essentially, the difference between the ADIT and passport style photograph is that the passport style photo shows the individual's full face and has the individual looking directly at the camera, while the ADIT type photo shows a ¾ face view and the applicant is looking to one side of the camera.

Notwithstanding the policy guidelines stating that the USCIS "…is adopting the Department of State's photograph guidance for passport style photographs in its entirety", the USCIS, variously requires parties to submit passport type photographs, without further specification, or without reference to the US Department of State website, or in some other instances, specifications that are not compliant with the state Department's regulations.

For example, USCIS requires photographs that were taken within thirty days, whereas the State Department requires photographs taken within 6 months. Similarly, the USCIS specifications do not incorporate all of the criteria delineated in the State Department guideline.

If additional information on photograph standards is needed, the USCIS invites customers to contact the USCIS National Customer Service Center or suggests that the customer visit an obsolete Department of State link.

Further confusing the requirements are variable USCIS instructions contained in specific form types such as Form I-130 Petition for Alien relative. To establish eligibility for this benefit, the petitioner must submit evidence in accordance with the instructions on the form because 8

C.F.R. 103.2(a)(1) states, in part, that:

Every . . . petition . . . submitted on the form prescribed . . . shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. The instructions require: a passport-style color photo … , taken within 30 days of the date of this petition. The photos must have a white background and be glossy un-retouched and not mounted. The dimensions of the full frontal facial image should be about 1 inch from the chin to top of the hair.

Issue(s) for USCIS Consideration

It is noted that the stated policy and directive by Mr. Yates "adopting" the Department of State's photograph guidance which requires a "passport style" photograph and rejecting ADIT style photographs is in direct conflict with the requirement set forth in the present CFR. Similarly, two regulatory provisions in the CFR are contradictory. The inconsistency between the USCIS policy directive and the practice and instructions contained in the various USCIS Forms are equally glaring.

Of equal concern should be the USCIS reference to an obsolete US Department of State web site link and, despite the stated USCIS policy directive, the lack of consistency between the Department of State and USCIS criteria.

Moreover, USCIS must first address whether USCIS internal policy directive, even if published, have binding effect on outside parties. In other words, can and do the specifications contained in the policy directive adopting the Department of State's photograph guidance legally supersede the ADIT photographs, as required in the regulations? Can and does the USCIS possess the authority to direct its staff to reject ADIT photographs when allowed by its own USCIS regulations?

Similarly, does the less stringent and variable requirements contained in form instructions, incorporated as rules by reference, assume the authority of regulations without compliance with the prior notice requirements of the Administrative Procedures Act and surpass the regulatory requirements and the USCIS policy directive?

Lastly, in view of the lack of uniformity between the US Department of State regulations and USCIS and the public announcement that USCIS is "adopting the Department of State's photograph guidance", which "passport photograph" requirement should customers comply with?

In short, the requirements are inconsistent, contradictory, varied and confusing.


The principles of precedence and hierarchy of law suggest that Statutes at Large have the next highest precedence to the Constitution of the United States, because they are created by Congress from the authority derived from the U.S. Constitution.

Next comes the U.S. Code, which implements the Statutes at Large and is interpreted by Executive Branch agencies to formulate proposed regulations, which are then published in the Federal Register under the authority of the Federal Register Act, 44 U.S.C. Chapter 15.

The Code of Federal Regulations (CFR) then takes precedence over agency publications that implement it.

Accordingly, amending the present rule (CFR) to incorporate the guidance contained in the policy directive or in the alternative to assure continuing consistency, uniformity, and predictability, linking, by reference, the USCIS requirements to the State Department specifications, is a minimal imperative.

Moreover, form instructions, and policy guidance, and references should be reviewed methodically and seriously to demonstrate a modest comprehension to assure cohesive, thoughtful, and logical edicts. The present state of the USCIS requirements at the very least appears haphazard and unfairly puzzling to the customers and the public.

Therefore complying with basic precepts of Administrative Law and established legal principles will be most welcome and very likely reflect favorably on the agency.

Meanwhile, despite the confusion and inherent inconsistencies, a reasonable interpretation of the applicable regulations and directives do not forbid the wearing of a hijab in passport or ADIT photographs, which ever is required by USCIS relative to petitions and applications for immigration benefits, so long as the full face is visible.

About The Author

Yosef Yacob has a BA in Economics (Honors) Linfield College, JD Northwestern School of Law of Lewis & Clark College, LLM (International Civil Litigation), University of San Diego, PhD in Law (International Law) Osgoode Hall School of Law, York University.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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