Immigration and Naturalization Service, Justice § 212.1

212.10 Section 212(k) waiver. lands or the Turks and Caicos Islands 212.11 Controlled substance convictions. and who presents a current certificate 212.12 Parole determinations and revoca- from the Clerk of Court of the Cayman tions respecting Mariel Cubans. 212.13 Departmental parole determinations Islands or the Turks and Caicos Islands respecting certain Mariel Cubans. indicating no criminal record. 212.14 Parole determinations for alien wit- (b) British, French, and Netherlands nesses and informants for whom a law nationals, and nationals of certain adja- enforcement authority (‘‘LEA’’) will re- cent islands of the Caribbean which are quest S classification. independent countries. A visa is not re- AUTHORITY: 8 U.S.C. 1101, 1102, 1103, 1182, quired of a British, French, or Nether- 1184, 1187, 1225, 1226, 1227, 1228, 1252; 8 CFR lands national—or of a national of Bar- part 2. bados, Grenada, Jamaica, or Trinidad and Tobago, who has his residence in § 212.1 Documentary requirements for British, French, or Netherlands terri- nonimmigrants. tory located in the adjacent islands of A valid unexpired visa and an the Caribbean area, or in Barbados, unexpired passport, valid for the period Grenada, Jamaica, or Trinidad and To- set forth in section 212(a)(26) of the bago, who: (1) Is proceeding to the Act, shall be presented by each arriv- United States as an agricultural work- ing nonimmigrant alien except that er; or (2) is the beneficiary of a valid, the passport validity period for an ap- unexpired indefinite certification plicant for admission who is a member granted by the Department of Labor of a class described in section 102 of the for employment in the Virgin Islands Act is not required to extend beyond of the United States and is proceeding the date of his application for admis- to the Virgin Islands of the United sion if so admitted, and except as oth- States for such purpose, or is the erwise provided in the Act, this chap- spouse or child of such an alien accom- ter, and for the following classes: panying or following to join him. A (a) Canadian nationals, and aliens hav- visa is not required of a national of the ing a common nationality with nationals British Virgin Islands who has his resi- of Canada or with British subjects in Ber- dence in the British Virgin Islands, and muda, Bahamian nationals or British sub- who is proceeding to the Virgin Islands jects resident in Bahamas, Cayman Is- of the United States. lands, and Turks and Caicos Islands. A (c) Mexican nationals. A visa and a visa is not required of a Canadian na- passport are not required of a Mexican tional in any case. A passport is not re- national who is in possession of a bor- quired of such national except after a der crossing card on Form I–186 or I–586 visit outside of the Western Hemi- and is applying for admission as a tem- sphere. A visa is not required of an porary visitor for business or pleasure alien having a common nationality from continguous territory; or is enter- with Canadian nationals or with Brit- ing solely for the purpose of applying ish subjects in Bermuda, who has his or for a Mexican passport or other official her residence in Canada or Bermuda. A Mexican document at a Mexican con- passport is not required of such alien sular office on the United States side of except after a visit outside of the West- the border. A visa is not required of a ern Hemisphere. A visa and a passport Mexican national who is in possession are required of a Bahamian national or of a border crossing card and is apply- a British subject who has his residence ing for admission to the United States in the Bahamas except that a visa is as a temporary visitor for business or not required of such an alien who, prior pleasure from other than contiguous to or at the time of embarkation for territory. A visa is not required of a the United States on a vessel or air- Mexican national who is a crewman craft, satisfied the examining U.S. im- employed on an aircraft belonging to a migration officer at the Bahamas, that Mexican company authorized to engage he is clearly and beyond a doubt enti- in commercial transportation into the tled to admission in all other respects. United States. A visa is not required of a British sub- (c-1) Bearers of Mexican diplomatic or ject who has his residence in, and ar- official passports. A visa shall not be re- rives directly from, the Cayman Is- quired by a Mexican national bearing a

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Mexican diplomatic or official passport (i) Is classifiable as a vistor for busi- who is a military or civilian official of ness or pleasure; the Federal Government of Mexico en- (ii) Is solely entering and staying on tering the United States for six months Guam for a period not to exceed fifteen or less for a purpose other than on as- days; signment as a permanent employee to (iii) Is in possession of a round-trip an office of the Mexican Federal Gov- nonrefundable and nontransferable ernment in the United States and the transportation ticket bearing a con- official’s spouse or any of the official’s firmed departure date not exceeding dependent family members under 19 fifteen days from the date of admission years of age, bearing diplomatic or offi- to Guam; cial passports, who are in the actual (iv) Is in possession of a completed company of such official at the time of and signed Visa Waiver Information entry into the United States. This Form (Form I–736); waiver does not apply to the spouse or (v) Waives any right to review or ap- any of the official’s family members peal the immigration officer’s deter- classifiable under section 101(a)(15) (F) mination of admissibility at the port of or (M) of the Act. entry at Guam; and (c-2) Aliens entering pursuant to (vi) Waives any right to contest any International Boundary and Water Com- action for deportation, other than on mission Treaty. A visa and a passport the basis of a request for asylum. are not required of an alien employed (2) An alien is eligible for the waiver either directly or indirectly on the con- provision if all of the eligibility cri- struction, operation, or maintenance of teria in paragraph (e)(1) of this section works in the United States undertaken have been met prior to embarkation in accordance with the treaty con- and the alien is a citizen of a country cluded on February 3, 1944, between, that: the United States and Mexico regard- (i) Has a visa refusal rate of 16.9% or ing the functions of the International less, or a country whose visa refusal Boundary and Water Commission, and rate exceeds 16.9% and has an estab- entering the United States temporarily lished preinspection or preclearance in connection with such employment. program, pursuant to a bilateral agree- (d) Citizens of the Freely Associated ment with the United States under States, formerly Trust Territory of the Pa- which its citizens traveling to Guam cific Islands. Citizens of the Republic of without a valid United States visa are the Marshall Islands and the Federated inspected by the Immigration and Nat- States of Micronesia may enter into, uralization Service prior to departure lawfully engage in employment, and from that country; establish residence in the United (ii) Is within geographical proximity States and its territories and posses- to Guam, unless the country has a sub- sions without regard to paragraphs stantial volume of nonimmigrant ad- (14), (20) and (26) of section 212(a) of the missions to Guam as determined by the Act pursuant to the terms of Pub. L. Commissioner and extends reciprocal 99–239. Pending issuance by the afore- privileges to citizens of the United mentioned governments of travel docu- States; ments to eligible citizens, travel docu- (iii) Is not designated by the Depart- ments previously issued by the Trust ment of State as being of special hu- Territory of the Pacific Islands will manitarian concern; and continue to be accepted for purposes of (iv) Poses no threat to the welfare, identification and to establish eligi- safety or security of the United States, bility for admission into the United its territories, or commonwealths. States, its territories and possessions. Any potential threats to the welfare, (e) Aliens entering Guam pursuant to safety, or security of the United section 14 of Pub. L. 99–396, ‘‘Omnibus States, its territories, or common- Territories Act.’’ (1) A visa is not re- wealths will be dealt with on a country quired of an alien who is a citizen of a by country basis, and a determination country enumerated in paragraph (e)(3) by the Commissioner of the Immigra- of this section who: tion and Naturalization Service that a

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threat exists will result in the imme- Immigration and Naturalization Serv- diate deletion of that country from the ice in behalf of the government; listing in paragraph (e)(3) of this sec- (ii) Transport only an alien who is a tion. citizen and in possession of a valid (3)(i) The following geographic areas passport of a country enumerated in meet the eligibility criteria as stated paragraph (e)(3) of this section; in paragraph (e)(2) of this section: Aus- (iii) Transport only an alien in pos- tralia, Brunei, Burma, Indonesia, session of a round-trip, nontransferable Japan, Malaysia, Nauru, New Zealand, transportation ticket: Papua New Guinea, Republic of Korea, (A) Bearing a confirmed departure Singapore, Solomon Islands, Taiwan date not exceeding fifteen days from (residents thereof who begin their trav- the date of admission to Guam, el in Taiwan and who travel on direct (B) Valid for a period of not less than flights from Taiwan to Guam without one year, an intermediate layover or stop except (C) Nonrefundable except in the coun- that the flights may stop in a territory try in which issued or in the country of of the United States enroute), the the alien’s nationality or residence, United Kingdom (including the citizens (D) Issued by a carrier which has en- of the colony of Hong Kong), Vanuatu, tered into an agreement described in and Western Samoa. The provision that part (5)(i) of this section, and flights transporting residents of Tai- (E) Which the carrier will uncondi- wan to Guam may stop at a territory of tionally honor when presented for re- the United States enroute may be re- turn passage; and scinded whenever the number of inad- (iv) Transport only an alien in pos- missible passengers arriving in Guam session of a completed and signed Visa who have transited a territory of the Waiver Information Form I–736. United States enroute to Guam exceeds (f) Direct transits—(1) Transit without 20 percent of all the inadmissible pas- visa. A passport and visa are not re- sengers arriving in Guam within any quired of an alien who is being trans- consecutive two-month period. Such ported in immediate and continuous rescission will be published in the FED- transit through the United States in ERAL REGISTER. accordance with the terms of an agree- (ii) For the purposes of this section, ment entered into between the trans- the term citizen of a country as used in portation line and the Service under 8 CFR 212.1(e)(1) when applied to Tai- the provisions of section 238(d) of the wan refers only to residents of Taiwan Act on Form I–426 to insure such im- who are in possession of Taiwan Na- mediate and continuous transit tional Identity Cards and a valid Tai- through, and departure from, the Unit- wan passport with a valid re-entry per- ed States en route to a specifically des- mit issued by the Taiwan Ministry of ignated foreign country: Provided, That Foreign Affairs. It does not refer to such alien is in possession of a travel any other holder of a Taiwan passport document or documents establishing or a passport issued by the People’s Re- his/her identity and nationality and public of China. ability to enter some country other (4) Admission under this section ren- than the United States. ders an alien ineligible for: (2) Waiver of passport and visa. On the (i) Adjustment of status to that of a basis of reciprocity, the waiver of pass- temporary resident or, except under port and visa is available to a national the provisions of section 245(i) of the of Albania, Bulgaria, Czechoslovakia, Act, to that of a lawful permanent resi- Estonia, the German Democratic Re- dent; public, Hungary, Latvia, Lithuania, (ii) Change of nonimmigrant status; Mongolian People’s Republic, People’s or Republic of China, Poland, Romania, or (iii) Extension of stay. the Union of Soviet Socialist Republics (5) A transportation line bringing resident in one of said countries, only any alien to Guam pursuant to this if he/she is transiting the United States section shall: by aircraft of a transportation line sig- (i) Enter into a contract on Form I– natory to an agreement with the Serv- 760, made by the Commissioner of the ice on Form I–426 on a direct through

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flight which will depart directly to a consular officer classifying the alien foreign place from the port of arrival. under that section. (3) Unavailability to transit. This waiv- (i) Visa Waiver Pilot Program. A visa is er of passport and visa requirement is not required of any alien who is eligi- not available to an alien who is a citi- ble to apply for admission to the Unit- zen of Afghanistan, Bangladesh, Cuba, ed States as a Visa Waiver Pilot Pro- India, Iran, Iraq, Libya, Pakistan, Sri gram applicant pursuant to the provi- Lanka, or a national of a Republic of sions of section 217 of the Act and part the former Socialist Federal Republic 217 of this chapter if such alien is a na- of Yugoslavia (effective August 16, 1993) tional of a country designated under which includes Bosnia, Croatia, Serbia, the Visa Waiver Pilot Program, who Montenegro, Slovenia, and Macedonia. seeks admission to the United States This waiver of passport and visa re- for a period of 90 days or less as a visi- quirement is not available to an alien tor for business or pleasure. who is a citizen or national of North (j) Officers authorized to act upon rec- Korea (Democratic People’s Republic ommendations of United States consular of Korea) or Democratic Republic of officers for waiver of visa and passport re- Vietnam and is a resident of the said quirements. All district directors, the countries. officers in charge are authorized to act (4) Foreign government officials in tran- upon recommendations made by United sit. If an alien is of the class described States consular officers or by officers in section 212(d)(8) of the Act, only a of the Visa Office, Department of valid unexpired visa and a travel docu- State, pursuant to the provisions of 22 ment valid for entry into a foreign CFR 41.7 for waiver of visa and pass- country for at least 30 days from the port requirements under the provisions date of admission to the United States of section 212(d)(4)(A) of the Act. The are required. District Director at Washington, DC, (g) Unforeseen emergency. A non- has jurisdiction in such cases rec- immigrant seeking admission to the ommended to the Service at the seat of United States must present an Government level by the Department unexpired visa and a passport valid for of State. Neither an application nor fee the amount of time set forth in section 212(a)(7)(B) of the Act, or a valid border are required if the concurrence in a crossing identification card at the time passport or visa waiver is requested by of application for admission, unless the a U.S. consular officer or by an officer nonimmigrant satisfies the require- of the Visa Office. The district director ments described in one or more of the or the Deputy Commissioner, may at paragraphs (a) through (f) or (i) of this any time revoke a waiver previously section. Upon a nonimmigrant’s appli- authorized pursuant to this paragraph cation on Form I–193, a district direc- and notify the nonimmigrant alien in tor at a port of entry may, in the exer- writing to that effect. cise of his or her discretion, on a case- (k) Cancellation of nonimmigrant visas by-case basis, waive the documentary by immigration officers. Upon receipt of requirements, if satisfied that the non- advice from the Department of State immigrant cannot present the required that a nonimmigrant visa has been re- documents because of an unforeseen voked or invalidated, and request by emergency. The district director or the that Department for such action, im- Deputy Commissioner may at any time migration officers shall place an appro- revoke a waiver previously authorized priate endorsement thereon. pursuant to this paragraph and notify (l) Treaty traders and investors. Not- the nonimmigrant in writing to that withstanding any of the provisions of effect. this part, an alien seeking admission as (h) Fiancees or fiances of U.S. citizens. a treaty trader or investor under the Notwithstanding any of the provisions provisions of Chapter 16 of the North of this part, an alien seeking admission American Free Trade Agreement as a fiancee or fiance of a U.S. citizen (NAFTA) pursuant to section pursuant to section 101(a)(15)(K) of the 101(a)(15)(E) of the Act, shall be in pos- Act shall be in possession of a non- session of a nonimmigrant visa issued immigrant visa issued by an American by an American consular officer

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classifying the alien under that sec- prior to the completion of the requisite tion. five- or twenty-year absence, must (m) Aliens in S classification. Notwith- apply for permission to reapply for ad- standing any of the provisions of this mission to the United States as pro- part, an alien seeking admission pursu- vided under this part. A temporary ant to section 101(a)(15)(S) of the Act stay in the United States under section must be in possession of appropriate 212(d)(3) of the Act does not interrupt documents issued by a United States the five or twenty consecutive year ab- consular officer classifying the alien sence requirement. under that section. (b) Alien applying to consular officer (Secs. 103, 104, 212 of the Immigration and for nonimmigrant visa or nonresident Nationality Act, as amended (8 U.S.C. 1103, alien border crossing card. (1) An alien 1104, 1132)) who is applying to a consular officer [26 FR 12066, Dec. 16, 1961] for a nonimmigrant visa or a non- resident alien border crossing card, EDITORIAL NOTE: For FEDERAL REGISTER ci- must request permission to reapply for tations affecting § 212.1, see the List of CFR admission to the United States if five Sections Affected in the Finding Aids sec- tion in this volume. years, or twenty years if the alien’s de- portation was based upon a conviction § 212.2 Consent to reapply for admis- for an aggravated felony, have not sion after deportation, removal or elapsed since the date of deportation or departure at Government expense. removal. This permission shall be re- (a) Evidence. Any alien who has been quested in the manner prescribed deported or removed from the United through the consular officer, and may States is inadmissible to the United be granted only in accordance with sec- States unless the alien has remained tions 212(a)(17) and 212(d)(3)(A) of the outside of the United States for five Act and § 212.4 of this part. However, consecutive years since the date of de- the alien may apply for such permis- portation or removal. If the alien has sion by submitting Form I–212, Appli- been convicted of an aggravated felony, cation for Permission to Reapply for he or she must remain outside of the Admission into the United States after United States for twenty consecutive Deportation or Removal, to the con- years from the deportation date before sular officer if that officer is willing to he or she is eligible to re-enter the accept the application, and rec- United States. Any alien who has been ommends to the district director that deported or removed from the United the alien be permitted to apply. States and is applying for a visa, ad- (2) The consular officer shall forward mission to the United States, or ad- the Form I–212 to the district director justment of status, must present proof with jurisdiction over the place where that he or she has remained outside of the deportation or removal proceedings the United States for the time period were held. required for re-entry after deportation (c) Special provisions for an applicant or removal. The examining consular or for nonimmigrant visa under section immigration officer must be satisfied 101(a)(15)(K) of the Act. (1) An applicant that since the alien’s deportation or re- for a nonimmigrant visa under section moval, the alien has remained outside 101(a)(15)(K) must: the United States for more than five (i) Be the beneficiary of a valid visa consecutive years, or twenty consecu- petition approved by the Service; and tive years in the case of an alien con- (ii) File an application on Form I–212 victed of an aggravated felony as de- with the consular officer for permission fined in section 101(a)(43) of the Act. to reapply for admission to the United Any alien who does not satisfactorily States after deportation or removal. present proof of absence from the Unit- (2) The consular officer must forward ed States for more than five consecu- the Form I–212 to the Service office tive years, or twenty consecutive years with jurisdiction over the area within in the case of an alien convicted of an which the consular officer is located. If aggravated felony, to the consular or the alien is ineligible on grounds immigration officer, and any alien who which, upon the applicant’s marriage is seeking to enter the United States to the United States citizen petitioner,

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