Subchapter E—Visas

SUBCHAPTER E—VISAS

PART 40—REGULATIONS PER- 40.52 Unqualified physicians. 40.53 Uncertified foreign health-care work- TAINING TO BOTH NON- ers. IMMIGRANTS AND IMMIGRANTS 40.54–40.59 [Reserved] UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMEND- Subpart G—Illegal Entrants and ED Immigration Violators 40.61 Aliens present without admission or Subpart A—General Provisions parole. 40.62 Failure to attend removal proceedings. Sec. 40.63 Misrepresentation; Falsely claiming 40.1 Definitions. citizenship. 40.2 Documentation of nationals. 40.64 Stowaways. 40.3 Entry into areas under U.S. adminis- 40.65 Smugglers. tration. 40.66 Subject of civil penalty. 40.4 Furnishing records and information 40.67 Student visa abusers. from visa files for court proceedings. 40.68 Aliens subject to INA 222(g). 40.5 Limitations on the use of National 40.69 [Reserved] Crime Information Center (NCIC) criminal history information. Subpart H—Documentation Requirements 40.6 Basis for refusal. 40.7–40.8 [Reserved] 40.71 Documentation requirements for im- 40.9 Classes of inadmissible aliens. migrants. 40.72 Documentation requirements for non- Subpart B—Medical Grounds of Ineligibility immigrants. 40.73–40.79 [Reserved] 40.11 Medical grounds of ineligibility. 40.12–40.19 [Reserved] Subpart I—Ineligible for Citizenship Subpart C—Criminal and Related 40.81 Ineligible for citizenship. Grounds—Conviction of Certain Crimes 40.82 Alien who departed the United States to avoid service in the Armed Forces. 40.21 Crimes involving moral turpitude and 40.83–40.89 [Reserved] controlled substance violators. 40.22 Multiple criminal convictions. Subpart J—Aliens Previously Removed 40.23 Controlled substance traffickers. [Re- served] 40.91 Certain aliens previously removed. 40.24 Prostitution and commercialized vice. 40.92 Aliens unlawfully present. 40.25 Certain aliens involved in serious 40.93 Aliens unlawfully present after pre- criminal activity who have asserted im- vious immigration violation. munity from prosecution. [Reserved] 40.94–40.99 [Reserved] 40.26–40.29 [Reserved] Subpart K—Miscellaneous Subpart D—Security and Related Grounds 40.101 Practicing polygamists. 40.31 General. [Reserved] 40.102 Guardian required to accompany ex- 40.32 Terrorist activities. [Reserved] cluded alien. 40.33 Foreign policy. [Reserved] 40.103 International child abduction. 40.34 Immigrant membership in totalitarian 40.104 Unlawful voters. party. 40.105 Former citizens who renounced citi- 40.35 Participants in Nazi persecutions or zenship to avoid taxation. genocide. [Reserved] 40.106–40.110 [Reserved] 40.36–40.39 [Reserved] Subpart L—Failure to Comply with INA Subpart E—Public Charge 40.201 Failure of application to comply with 40.41 Public charge. INA. 40.42–40.49 [Reserved] 40.202 Certain former exchange visitors. 40.203 Alien entitled to A, E, or G non- Subpart F—Labor Certification and immigrant classification. Qualification for Certain Immigrants 40.204 [Reserved] 40.205 Applicant for immigrant visa under 40.51 Labor certification. INA 203(c).

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40.206 Frivolous applications. [Reserved] cludes civil service visa examiners em- 40.207–40.210 [Reserved] ployed by the Department of State for duty at visa-issuing offices abroad, Subpart M—Waiver of Ground of upon certification by the chief of the Ineligibility consular section under whose direction 40.301 Waiver for ineligible nonimmigrants such examiners are employed that the under INA 212(d)(3)(A). examiners are qualified by knowledge

AUTHORITY: 8 U.S.C. 1104. and experience to perform the functions of a consular officer in the SOURCE: 56 FR 30422, July 2, 1991, unless issuance or refusal of visas. The des- otherwise noted. ignation of visa examiners shall expire EDITORIAL NOTE: Nomenclature changes to upon termination of the examiners’ part 40 appear at 71 FR 34520 and 34521, June employment for such duty and may be 15, 2006. terminated at any time for cause by the Deputy Assistant Secretary. The Subpart A—General Provisions assignment by the Department of any foreign service officer to a diplomatic § 40.1 Definitions. or consular office abroad in a position The following definitions supplement administratively designated as requir- definitions contained in the Immigra- ing, solely, partially, or principally, tion and Nationality Act (INA). As the performance of consular functions, used in the regulations in parts 40, 41, and the initiation of a request for a 42, 43 and 45 of this subchapter, the consular commission, constitutes des- term: ignation of the officer as a ‘‘consular (a)(1) Accompanying or accompanied by officer’’ within the meaning of INA means not only an alien in the physical 101(a)(9). company of a principal alien but also (e) Department means the Department an alien who is issued an immigrant of State of the United States of Amer- visa within 6 months of: ica. (i) The date of issuance of a visa to (f) Dependent area means a colony or the principal alien; other component or dependent area (ii) The date of adjustment of status overseas from the governing foreign in the United States of the principal state. alien; or (g) DHS means the Department of (iii) The date on which the principal Homeland Security. alien personally appears and registers (h) Documentarily qualified means before a consular officer abroad to con- that the alien has reported that all the fer alternate foreign state charge- documents specified by the consular of- ability or immigrant status upon a ficer as sufficient to meet the require- spouse or child. ments of INA 222(b) have been ob- (2) An ‘‘accompanying’’ relative may tained, and the consular office has not precede the principal alien to the completed the necessary clearance pro- United States. cedures. This term is used only with re- (b) Act means the Immigration and spect to the alien’s qualification to Nationality Act (or INA), as amended. apply formally for an immigrant visa; (c) Competent officer, as used in INA it bears no connotation that the alien 101(a)(26), means a ‘‘consular officer’’ is eligible to receive a visa. as defined in INA 101(a)(9). (i) Entitled to immigrant classification (d) Consular officer, as defined in INA means that the alien: 101(a)(9) includes commissioned con- (1) Is the beneficiary of an approved sular officers and the Deputy Assistant petition granting immediate relative Secretary for Visa Services, and such or preference status; other officers as the Deputy Assistant (2) Has satisfied the consular officer Secretary may designate for the pur- as to entitlement to special immigrant pose of issuing nonimmigrant and im- status under INA 101(a)(27) (A) or (B); migrant visas, but does not include a (3) Has been selected by the annual consular agent, an attache´ or an assist- selection system to apply under INA ant attache´. For purposes of this regu- 203(c); or lation, the term ‘‘other officers’’ in- (4) Is an alien described in § 40.51(c).

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(j) Foreign state, for the purposes of (q) Principal alien means an alien alternate chargeability pursuant to from whom another alien derives a INA 202(b), is not restricted to those privilege or status under the law or areas to which the numerical limita- regulations. tion prescribed by INA 202(a) applies (r) Regulation means a rule which is but includes dependent areas, as de- established under the provisions of INA fined in this section. 104(a) and is duly published in the FED- (k) INA means the Immigration and ERAL REGISTER. Nationality Act, as amended. (s) Son or daughter includes only a (l) Make or file an application for a visa person who would have qualified as a means: ‘‘child’’ under INA 101(b)(1) if the per- (1) For a nonimmigrant visa appli- son were under 21 and unmarried. cant, submitting for formal adjudica- (t) Western Hemisphere means North tion by a consular officer of an elec- America (including Central America), tronic application, Form DS–160, South America and the islands imme- signed electronically by clicking the diately adjacent thereto including the box designated ‘‘Sign Application’’ in places named in INA 101(b)(5). the certification section of the applica- [56 FR 30422, July 2, 1991, as amended at 56 tion or, as directed by a consular offi- FR 43552, Sept. 3, 1991; 59 FR 15300, Mar. 31, cer, a completed Form DS–156, with 1994; 61 FR 1835, Jan. 24, 1996; 64 FR 55418, any required supporting documents and Oct. 13, 1999; 65 FR 54413, Sept. 8, 2000; 71 FR biometric data, as well as the requisite 34520, June 15, 2006; 73 FR 23068, Apr. 29, 2008; processing fee or evidence of the prior 75 FR 45476, Aug. 3, 2010] payment of the processing fee when such documents are received and ac- § 40.2 Documentation of nationals. cepted for adjudication by the consular (a) Nationals of the United States. A officer. national of the United States shall not (2) For an immigrant visa applicant, be issued a visa or other documenta- personally appearing before a consular tion as an alien for entry into the officer and verifying by oath or affir- United States. mation the statements contained on (b) Former Nationals of the United Form DS–230 or Form DS–260 and in all States. A former national of the United supporting documents, having pre- States who seeks to enter the United viously submitted all forms and docu- States must comply with the documen- ments required in advance of the ap- tary requirements applicable to aliens pearance and paid the visa application under the INA. processing fee. (m) Native means born within the ter- § 40.3 Entry into areas under U.S. ad- ritory of a foreign state, or entitled to ministration. be charged for immigration purposes to An immigrant or nonimmigrant that foreign state pursuant to INA sec- seeking to enter an area which is under tion 202(b). U.S. administration but which is not (n) Not subject to numerical limitation within the ‘‘United States’’, as defined means that the alien is entitled to im- in INA 101(a)(38), is not required by the migrant status as an immediate rel- INA to be documented with a visa un- ative within the meaning of INA less the authority contained in INA 215 201(b)(2)(i), or as a special immigrant has been invoked. within the meaning of INA 101(a)(27) (A) and (B), unless specifically subject § 40.4 Furnishing records and informa- to a limitation other than under INA tion from visa files for court pro- 201(a), (b), or (c). ceedings. (o) Parent, father, and mother, as de- Upon receipt of a request for infor- fined in INA 101(b)(2), are terms which mation from a visa file or record for are not changed in meaning if the child use in court proceedings, as con- becomes 21 years of age or marries. templated in INA 222(f), the consular (p) Port of entry means a port or place officer must, prior to the release of the designated by the DHS at which an information, submit the request to- alien may apply to DHS for admission gether with a full report to the Depart- into the United States. ment.

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§ 40.5 Limitations on the use of Na- the Immigration and Nationality Act, tional Crime Information Center as amended. (NCIC) criminal history information. [61 FR 59184, Nov. 21, 1996] (a) Authorized access. The FBI’s Na- tional Crime Information Center Subpart B—Medical Grounds of (NCIC) criminal history records are law Ineligibility enforcement sensitive and can only be § 40.11 Medical grounds of ineligi- accessed by authorized consular per- bility. sonnel with visa processing responsibil- ities. (a) Decision on eligibility based on find- (b) Use of information. NCIC criminal ings of medical doctor. A finding of a history record information shall be panel physician designated by the post used solely to determine whether or in whose jurisdiction the examination not to issue a visa to an alien or to is performed pursuant to INA 212(a)(1) admit an alien to the United States. shall be binding on the consular officer, All third party requests for access to except that the officer may refer a NCIC criminal history record informa- panel physician finding in an indi- tion shall be referred to the FBI. vidual case to USPHS for review. (c) Confidentiality and protection of (b) Waiver of ineligibility—INA 212(g). records. To protect applicants’ privacy, If an immigrant visa applicant is inad- authorized Department personnel must missible under INA 212(a)(1)(A)(i), (ii), secure all NCIC criminal history or (iii) but is qualified to seek the ben- records, automated or otherwise, to efits of INA 212(g)(1)(A) or (B), prevent access by unauthorized per- 212(g)(2)(C), or 212(g)(3), the consular sons. Such criminal history records officer shall inform the alien of the must be destroyed, deleted or overwrit- procedure for applying to DHS for re- ten upon receipt of updated versions. lief under the applicable provision of law. A visa may not be issued to the [67 FR 8478, Feb. 25, 2002] alien until the consular officer has re- § 40.6 Basis for refusal. ceived notification from DHS of the approval of the alien’s application under A visa can be refused only upon a INA 212(g), unless the consular officer ground specifically set out in the law has been delegated authority by the or implementing regulations. The term Secretary of Homeland Security to ‘‘reason to believe’’, as used in INA grant the particular waiver under INA 221(g), shall be considered to require a 212(g). determination based upon facts or cir- (c) Waiver authority—INA 212(g)(2)(A) cumstances which would lead a reason- and (B). The consular officer may able person to conclude that the appli- waive section 212(a)(1)(A)(ii) visa ineli- cant is ineligible to receive a visa as gibility if the alien qualifies for such provided in the INA and as imple- waiver under the provisions of INA mented by the regulations. Consider- 212(g)(2)(A) or (B). ation shall be given to any evidence submitted indicating that the ground [56 FR 30422, July 2, 1991, as amended at 62 for a prior refusal of a visa may no FR 67567, Dec. 29, 1997] longer exist. The burden of proof is upon the applicant to establish eligi- §§ 40.12–40.19 [Reserved] bility to receive a visa under INA 212 or any other provision of law or regula- Subpart C—Criminal and Related tion. Grounds—Conviction of Cer- tain Crimes §§ 40.7–40.8 [Reserved] § 40.21 Crimes involving moral turpi- § 40.9 Classes of inadmissible aliens. tude and controlled substance vio- Subparts B through L describe class- lators. es of inadmissible aliens who are ineli- (a) Crimes involving moral turpitude— gible to receive visas and who shall be (1) Acts must constitute a crime under ineligible for admission into the United criminal law of jurisdiction where they oc- States, except as otherwise provided in curred. A Consular Officer may make a

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finding of ineligibility under INA ernor of a State of the United States, 212(a)(2)(A)(i)(I) based upon an alien’s by the former High Commissioner for admission of the commission of acts Germany acting pursuant to Executive which constitute the essential ele- Order 10062, or by the United States ments of a crime involving moral tur- Ambassador to the Federal Republic of pitude, only if the acts constitute a Germany acting pursuant to Executive crime under the criminal law of the ju- Order 10608. A legislative pardon or a risdiction where they occurred. How- pardon, amnesty, expungement of ever, a Consular Officer must base a de- penal record or any other act of clem- termination that a crime involves ency granted by a foreign state shall moral turpitude upon the moral stand- not serve to remove a ground of ineligi- ards generally prevailing in the United bility under INA 212(a)(2)(A)(i)(I). States. (2) Conviction for crime committed (6) Political offenses. The term ‘‘purely under age 18. (i) An alien will not be in- political offense’’, as used in INA eligible to receive a visa under INA 212(a)(2)(A)(i)(I), includes offenses that 212(a)(2)(A)(i)(I) by reason of any of- resulted in convictions obviously based fense committed: on fabricated charges or predicated (A) Prior to the alien’s fifteenth upon repressive measures against ra- birthday, or cial, religious, or political minorities. (B) Between the alien’s fifteenth and (7) Waiver of ineligibility—INA 212(h). eighteenth birthdays unless such alien If an immigrant visa applicant is ineli- was tried and convicted as an adult for gible under INA 212(a)(2)(A)(i)(I) but is a felony involving violence as defined qualified to seek the benefits of INA in section 1(1) and section 16 of Title 18 212(h), the consular officer shall inform of the United States Code. the alien of the procedure for applying (ii) An alien tried and convicted as an to DHS for relief under that provision adult for a violent felony offense, as so of law. A visa may not be issued to the defined, committed after having at- alien until the consular officer has retained the age of fifteen years, will be ceived notification from DHS of the ap- subject to the provisions of INA proval of the alien’s application under 212(a)(2)(A)(i)(I) regardless of whether INA 212(h). at the time of conviction juvenile (b) Controlled substance violators—(1) courts existed within the convicting ju- An alien risdiction. Date of conviction not pertinent. (3) Two or more crimes committed under shall be ineligible under INA age 18. An alien convicted of a crime in- 212(a)(2)(A)(i)(II) irrespective of wheth- volving moral turpitude or admitting er the conviction for a violation of or the commission of acts which con- for conspiracy to violate any law or stitute the essential elements of such a regulation relating to a controlled sub- crime and who has committed an addi- stance, as defined in the Controlled tional crime involving moral turpitude Substance Act (21 U.S.C. 802), occurred shall be ineligible under INA before, on, or after October 27, 1986. 212(a)(2)(A)(i)(I), even though the (2) Waiver of ineligibility—INA 212(h). crimes were committed while the alien If an immigrant visa applicant is ineli- was under the age of 18 years. gible under INA 212(a)(2)(A)(i)(II) but is (4) Conviction in absentia. A convic- qualified to seek the benefits of INA tion in absentia of a crime involving 212(h), the consular officer shall inform moral turpitude does not constitute a the alien of the procedure for applying conviction within the meaning of INA to DHS for relief under that provision 212(a)(2)(A)(i)(I). of law. A visa may not be issued to the (5) Effect of pardon by appropriate U.S. alien until the consular officer has re- authorities/foreign states. An alien shall ceived notification from DHS of the ap- not be considered ineligible under INA proval of the alien’s application under 212(a)(2)(A)(i)(I) by reason of a convic- INA 212(h). tion of a crime involving moral turpitude for which a full and unconditional [56 FR 30422, July 2, 1991, as amended at 64 pardon has been granted by the Presi- FR 55418, Oct. 13, 1999] dent of the United States, by the Gov-

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§ 40.22 Multiple criminal convictions. gible under INA 212(a)(2)(B) but is (a) Conviction(s) for crime(s) committed qualified to seek the benefits of INA under age 18. An alien shall not be in- 212(h), the consular officer shall inform eligible to receive a visa under INA the alien of the procedure for applying 212(a)(2)(B) by reason of any offense to DHS for relief under that provision committed prior to the alien’s fif- of law. A visa may not be issued to the teenth birthday. Nor shall an alien be alien until the consular officer has re- ineligible under INA 212(a)(2)(B) by rea- ceived notification from DHS of the ap- son of any offense committed between proval of the alien’s application under the alien’s fifteenth and eighteenth INA 212(h). birthdays unless such alien was tried [56 FR 30422, July 2, 1991, as amended at 62 and convicted as an adult for a felony FR 67567, Dec. 29, 1997] involving violence as defined in section 1(l) and section 16 of Title 18 of the § 40.23 Controlled substance traf- United States Code. An alien, tried and fickers. [Reserved] convicted as an adult for a violent felony offense, as so defined, committed § 40.24 Prostitution and commercialized vice. after having attained the age of fifteen years, and who has also been convicted (a) Activities within 10 years preceding of at least one other such offense or visa application. An alien shall be ineli- any other offense committed as an gible under INA 212(a)(2)(D) only if— adult, shall be subject to the provisions (1) The alien is coming to the United of INA 212(a)(2)(B) regardless of wheth- States solely, principally, or inciden- er at that time juvenile courts existed tally to engage in prostitution, or has within the jurisdiction of the convic- engaged in prostitution, or the alien dition. rectly or indirectly procures or at- (b) Conviction in absentia. A convic- tempts to procure, or procured or at- tion in absentia shall not constitute a tempted to procure or to import pros- conviction within the meaning of INA titutes or persons for the purposes of 212(a)(2)(B). prostitution, or receives or received, in (c) Effect of pardon by appropriate U.S. whole or in part, the proceeds of pros- authorities/foreign states. An alien shall titution; and not be considered ineligible under INA (2) The alien has performed one of the 212(a)(2)(B) by reason in part of having activities listed in § 40.24(a)(1) within been convicted of an offense for which the last ten years. a full and unconditional pardon has (b) Prostitution defined. The term been granted by the President of the ‘‘prostitution’’ means engaging in pro- United States, by the Governor of a miscuous sexual intercourse for hire. A State of the United States, by the finding that an alien has ‘‘engaged’’ in former High Commissioner for Ger- prostitution must be based on elements many acting pursuant to Executive of continuity and regularity, indi- Order 10062, or by the United States cating a pattern of behavior or delib- Ambassador to the Federal Republic of erate course of conduct entered into Germany acting pursuant to Executive primarily for financial gain or for Order 10608. A legislative pardon or a other considerations of material value pardon, amnesty, expungement of as distinguished from the commission penal record or any other act of clem- of casual or isolated acts. ency granted by a foreign state shall (c) Where prostitution not illegal. An not serve to remove a ground of ineligi- alien who is within one or more of the bility under INA 212(a)(2)(B). classes described in INA 212(a)(2)(D) is (d) Political offense. The term ‘‘purely ineligible to receive a visa under that political offense’’, as used in INA section even if the acts engaged in are 212(a)(2)(B), includes offenses that re- not prohibited under the laws of the sulted in convictions obviously based foreign country where the acts oc- on fabricated charges or predicated curred. upon repressive measures against ra- (d) Waiver of ineligibility—INA 212(h). cial, religious, or political minorities. If an immigrant visa applicant is ineli- (e) Waiver of ineligibility—INA 212(h). gible under INA 212(a)(2)(D) but is If an immigrant visa applicant is ineli- qualified to seek the benefits of INA

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212(h), the consular officer shall inform with the political party or organization the alien of the procedure for applying in power at the time of such service. to DHS for relief under that provision (d) Voluntary Membership After Age 16. of law. A visa may not be issued to the If an alien continues or continued alien until the consular officer has re- membership in or affiliation with a ceived notification from DHS of the ap- proscribed organization on or after proval of the alien’s application under reaching 16 years of age, only the INA 212(h). alien’s activities after reaching that § 40.25 Certain aliens involved in seri- age shall be pertinent to a determina- ous criminal activity who have as- tion of whether the continuation of serted immunity from prosecution. membership or affiliation is or was vol- [Reserved] untary. (e) Operation of Law Defined. The §§ 40.26–40.29 [Reserved] term operation of law, as used in INA 212(a)(3)(D), includes any case wherein Subpart D—Security and Related the alien automatically, and without Grounds personal acquiescence, became a member of or affiliated with a proscribed § 40.31 General. [Reserved] party or organization by official act, § 40.32 Terrorist activities. [Reserved] proclamation, order, edict, or decree. (f) Membership in Organization Advo- § 40.33 Foreign policy. [Reserved] cating Totalitarian Dictatorship in the United States. In accordance with the § 40.34 Immigrant membership in to- definition of totalitarian party con- talitarian party. tained in INA 101(a)(37), a former or (a) Definition of affiliate. The term af- present voluntary member of, or an filiate, as used in INA 212(a)(3)(D), alien who was, or is, voluntarily affili- means an oganization which is related ated with a noncommunist party, orga- to, or identified with, a proscribed as- nization, or group, or of any section, sociation or party, including any sec- subsidiary, branch, affiliate or subdivi- tion, subsidiary, branch, or subdivision sion thereof, which during the time of thereof, in such close association as to its existence did not or does not advo- evidence an adherence to or a further- ance of the purposes and objectives of cate the establishment in the United such association or party, or as to indi- States of a totalitarian dictatorship, is cate a working alliance to bring to fru- not considered ineligible under INA ition the purposes and objectives of the 212(a)(3)(D) to receive a visa. proscribed association or party. An or- (g) Waiver of ineligibility— ganization which gives, loans, or prom- 212(a)(3)(D)(iv). lf an immigrant visa ises support, money, or other thing of applicant is ineligible under INA value for any purpose to any proscribed 212(a)(3)(D) but is qualified to seek the association or party is presumed to be benefits of INA 212(a)(3)(D)(iv), the con- an affiliate of such association or party, sular officer shall inform the alien of but nothing contained in this para- the procedure for applying to DHS for graph shall be construed as an exclu- relief under that provision of law. A sive definition of the term affiliate. visa may not be issued to the alien (b) Service in Armed Forces. Service, until the consular officer has received whether voluntary or not, in the armed notification from DHS of the approval forces of any country shall not be re- of the alien’s application under INA garded, of itself, as constituting or es- 212(a)(3)(D)(iv). tablishing an alien’s membership in, or affiliation with, any proscribed party § 40.35 Participants in Nazi persecu- or organization, and shall not, of itself, tions or genocide. constitute a ground of ineligibility to (a) Participation in Nazi persecutions. receive a visa. (c) Voluntary Service in a Political Ca- [Reserved] pacity. Voluntary service in a political (b) Participation in genocide. [Re- capacity shall constitute affiliation served]

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§§ 40.36–40.39 [Reserved] ing of this section of the law and that the alien is otherwise eligible in all re- Subpart E—Public Charge spects. (e) Prearranged Employment. An immi- § 40.41 Public charge. grant visa applicant relying on an offer (a) Basis for Determination of Ineligi- of prearranged employment to estab- bility. Any determination that an alien lish eligibility under INA 212(a)(4), is ineligible under INA 212(a)(4) must other than an offer of employment cer- be predicated upon circumstances indi- tified by the Department of Labor pur- cating that, notwithstanding any affi- suant to INA 212(a)(5)(A), must provide davit of support that may have been written confirmation of the relevant filed on the alien’s behalf, the alien is information sworn and subscribed to likely to become a public charge after before a notary public by the employer admission, or, if applicable, that the or an authorized employee or agent of alien has failed to fulfill the affidavit the employer. The signer’s printed of support requirement of INA name and position or other relation- 212(a)(4)(C). ship with the employer must accom- (b) Affidavit of support. Any alien pany the signature. seeking an immigrant visa under INA (f) Use of Federal Poverty Line Where 201(b)(2), 203(a), or 203(b), based upon a INA 213A Not Applicable. An immigrant petition filed by a relative of the alien visa applicant, not subject to the re- (or in the case of a petition filed under quirements of INA 213A, and relying INA 203(b) by an entity in which a rel- solely on personal income to establish ative has a significant ownership inter- eligibility under INA 212(a)(4), who est), shall be required to present to the does not demonstrate an annual in- consular officer an affidavit of support come above the Federal poverty line, (AOS) on a form that complies with as defined in INA 213A (h), and who is terms and conditions established by without other adequate financial re- the Secretary of Homeland Security. sources, shall be presumed ineligible Petitioners for applicants at a post des- under INA 212(a)(4). ignated by the Deputy Assistant Sec- [62 FR 67564, Dec. 29, 1997, as amended at 65 retary for Visa Services for initial re- FR 78094, Dec. 14, 2000] view of and assistance with such an AOS will be charged a fee for such re- §§ 40.42–40.49 [Reserved] view and assistance pursuant to Item 61 of the Schedule of Fees for Consular Services (22 CFR 22.1). Subpart F—Labor Certification and (c) Joint Sponsors. Submission of one Qualification for Certain Immi- or more additional affidavits of support grants by a joint sponsor/sponsors is required whenever the relative sponsor’s house- § 40.51 Labor certification. hold income and significant assets, and (a) INA 212(a)(5) applicable only to cer- the immigrant’s assets, do not meet tain immigrant aliens. INA 212(a)(5)(A) the Federal poverty line requirements applies only to immigrant aliens de- of INA 213A. scribed in INA 203(b)(2) or (3) who are (d) Posting of Bond. A consular officer seeking to enter the United States for may issue a visa to an alien who is the purpose of engaging in gainful em- within the purview of INA 212(a)(4) ployment. (subject to the affidavit of support re- (b) Determination of need for alien’s quirement and attribution of sponsor’s labor skills. An alien within one of the income and resources under section classes to which INA 212(a)(5) applies as 213A), upon receipt of a notice from described in § 40.51(a) who seeks to DHS of the giving of a bond or under- enter the United States for the purpose taking in accordance with INA 213 and of engaging in gainful employment, INA 221(g), and provided further that shall be ineligible under INA the officer is satisfied that the giving 212(a)(5)(A) to receive a visa unless the of such bond or undertaking removes Secretary of Labor has certified to the the likelihood that the alien will be- Secretary of Homeland Security and come a public charge within the mean- the Secretary of State, that

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(1) There are not sufficient workers non-clinical health care occupation as in the United States who are able, will- described in 8 CFR 212.15(b)(1); or ing, qualified, (or equally qualified in (2) Who is the immigrant or non- the case of aliens who are members of immigrant spouse or child of a foreign the teaching profession or who have ex- health care worker and who is seeking ceptional ability in the sciences or the to accompany or follow to join as a de- arts) and available at the time of appli- rivative applicant the principal alien cation for a visa and at the place to to whom this section applies; or which the alien is destined to perform (3) Who is applying for an immigrant such skilled or unskilled labor, and or a nonimmigrant visa for any pur- (2) The employment of such alien will pose other than for the purpose of seek- not adversely affect the wages and ing entry into the United States in working conditions of the workers in order to perform health care services the United States similarly employed. as described in 8 CFR 212.15. (c) Labor certification not required in [67 FR 77159, Dec. 17, 2002] certain cases. A spouse or child accompanying or following to join an alien §§ 40.54–40.59 [Reserved] spouse or parent who is a beneficiary of a petition approved pursuant to INA Subpart G—Illegal Entrants and 203(b)(2) or (3) is not considered to be Immigration Violators within the purview of INA 212(a)(5). § 40.61 Aliens present without admis- [56 FR 30422, July 2, 1991, as amended at 61 sion or parole. FR 1835, Jan. 24, 1996] INA 212(a)(6)(A)(i) does not apply at the time of visa issuance. § 40.52 Unqualified physicians. INA 212(a)(5)(B) applies only to immi- [62 FR 67567, Dec. 29, 1997] grant aliens described in INA 203(b) (2) § 40.62 Failure to attend removal pro- or (3). ceedings. [61 FR 1835, Jan. 24, 1996, as amended at 62 An alien who without reasonable FR 67567, Dec. 29, 1997] cause failed to attend, or to remain in attendance at, a hearing initiated on or § 40.53 Uncertified foreign health-care after April 1, 1997, under INA 240 to de- workers. termine inadmissibility or deport- (a) Subject to paragraph (b) of this ability shall be ineligible for a visa section, a consular officer must not under INA 212(a)(6)(B) for five years fol- issue a visa to any alien seeking admis- lowing the alien’s subsequent depar- sion to the United States for the pur- ture or removal from the United pose of performing services in a health States. care occupation, other than as a physi- [62 FR 67567, Dec. 29, 1997] cian, unless, in addition to meeting all other requirements of law and regula- § 40.63 Misrepresentation; Falsely tion, the alien provides to the officer a claiming citizenship. certification issued by the Commission (a) Fraud and misrepresentation and On Graduates of Foreign Nursing INA 212(a)(6)(C) applicability to certain Schools (CGFNS) or another refugees. An alien who seeks to procure, credentialing service that has been ap- or has sought to procure, or has pro- proved by the Secretary of Homeland cured a visa, other documentation, or Security for such purpose, which cer- entry into the United States or other tificate complies with the provisions of benefit provided under the INA by sections 212(a)(5)(C) and 212(r) of the fraud or by willfully misrepresenting a Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. material fact at any time shall be in- 1182(r), respectively, and the regula- eligible under INA 212(a)(6)(C); Pro- tions found at 8 CFR 212.15. vided, That the provisions of this para- (b) Paragraph (a) of this section does graph are not applicable if the fraud or not apply to an alien: misrepresentation was committed by (1) Seeking to enter the United an alien at the time the alien sought States in order to perform services in a entry into a country other than the

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United States or obtained travel docu- enter or to try to enter the United ments as a bona fide refugee and the States in violation of law. refugee was in fear of being repatriated (b) Waiver of ineligibility—INA to a former homeland if the facts were 212(d)(11). If an immigrant applicant is disclosed in connection with an appli- ineligible under INA 212(a)(6)(E) but is cation for a visa to enter the United qualified to seek the benefits of INA States: Provided further, That the fraud 212(d)(11), the consular officer shall in- or misrepresentation was not com- form the alien of the procedure for ap- mitted by such refugee for the purpose plying to DHS for relief under that proof evading the quota or numerical re- vision of law. A visa may not be issued strictions of the U.S. immigration to the alien until the consular officer laws, or investigation of the alien’s has received notification from DHS of record at the place of former residence or elsewhere in connection with an ap- the approval of the alien’s application plication for a visa. under INA 212(d)(11). (b) Misrepresentation in application § 40.66 Subject of civil penalty. under Displaced Persons Act or Refugee Relief Act. Subject to the conditions (a) General. An alien who is the sub- stated in INA 212(a)(6)(c)(i), an alien ject of a final order imposing a civil who is found by the consular officer to penalty for a violation under INA 274C have made a willful misrepresentation shall be ineligible for a visa under INA within the meaning of section 10 of the 212(a)(6)(F). Displaced Persons Act of 1948, as (b) Waiver of ineligibility. If an appli- amended, for the purpose of gaining ad- cant is ineligible under paragraph (a) mission into the United States as an of this section but appears to the con- eligible displaced person, or to have sular officer to meet the prerequisites made a material misrepresentation for seeking the benefits of INA within the meaning of section 11(e) of 212(d)(12), the consular officer shall in- the Refugee Relief Act of 1953, as form the alien of the procedure for ap- amended, for the purpose of gaining ad- plying to DHS for relief under that pro- mission into the United States as an vision of law. A visa may not be issued alien eligible thereunder , shall be con- to the alien until the consular officer sidered ineligible under the provisions has received notification from DHS of of INA 212(a)(6)(C). the approval of the alien’s application (c) Waiver of ineligibility—INA 212(i). If an immigrant applicant is ineligible under INA 212(d)(12). under INA 212(a)(6)(C) but is qualified [62 FR 67567, Dec. 29, 1997] to seek the benefits of INA 212(i), the consular officer shall inform the alien § 40.67 Student visa abusers. of the procedure for applying to DHS An alien ineligible under the provi- for relief under that provision of law. A sions of INA 212(a)(6)(G) shall not be visa may not be issued to the alien issued a visa unless the alien has com- until the consular officer has received plied with the time limitation set forth notification from DHS of the approval of the alien’s application under INA therein. 212(i). [62 FR 67568, Dec. 29, 1997] [56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996] § 40.68 Aliens subject to INA 222(g). An alien who, under the provisions of § 40.64 Stowaways. INA 222(g), has voided a nonimmigrant INA 212(a)(6)(D) is not applicable at visa by remaining in the United States the time of visa application. beyond the period of authorized stay is ineligible for a new nonimmigrant visa § 40.65 Smugglers. unless the alien complies with the re- (a) General. A visa shall not be issued quirements in 22 CFR 41.101 (b) or (c) to an alien who at any time knowingly regarding the place of application. has encouraged, induced, assisted, [63 FR 671, Jan. 7, 1998] abetted, or aided any other alien to

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§ 40.69 [Reserved] §§ 40.83–40.89 [Reserved]

Subpart H—Documentation Subpart J—Aliens Previously Requirements Removed

§ 40.71 Documentation requirements SOURCE: 61 FR 59184, Nov. 21, 1996, unless for immigrants. otherwise noted. INA 212(a)(7)(A) is not applicable at § 40.91 Certain aliens previously re- the time of visa application. (For waiv- moved. er of documentary requirements for immigrants see 22 CFR 42.1 and 42.2.) (a) 5-year bar. An alien who has been found inadmissible, whether as a result § 40.72 Documentation requirements of a summary determination of inad- for nonimmigrants. missibility at the port of entry under INA 235(b)(1) or of a finding of inadmis- A passport which is valid indefinitely sibility resulting from proceedings for the return of the bearer to the under INA 240 initiated upon the country whose government issued such alien’s arrival in the United States, passport shall be deemed to have the shall be ineligible for a visa under INA required minimum period of validity as 212(a)(9)(A)(i) for 5 years following such specified in INA 212(a)(7)(B). alien’s first removal from the United States. §§ 40.73–40.79 [Reserved] (b) 10-year bar. An alien who has otherwise been removed from the United Subpart I—Ineligible for States under any provision of law, or Citizenship. who departed while an order of removal was in effect, is ineligible for a visa § 40.81 Ineligible for citizenship. under INA 212(a)(9)(A)(ii) for 10 years An alien will be ineligible to receive following such removal or departure from the United States. an immigrant visa under INA (c) 20-year bar. An alien who has been 212(a)(8)(A) if the alien is ineligible for removed from the United States two or citizenship, including as provided in more times shall be ineligible for a visa INA 314 or 315. under INA 212(a)(9)(A)(i) or INA [64 FR 55418, Oct. 13, 1999] 212(a)(9)(A)(ii), as appropriate, for 20 years following the most recent such § 40.82 Alien who departed the United removal or departure. States to avoid service in the armed (d) Permanent bar. If an alien who has forces. been removed has also been convicted (a) Applicability to immigrants. INA of an aggravated felony, the alien is 212(a)(8)(A) applies to immigrant visa permanently ineligible for a visa under applicants who have departed from or INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as remained outside the United States be- appropriate. (e) Exceptions. An alien shall not be tween September 8, 1939 and September ineligible for a visa under INA 24, 1978, to avoid or evade training or 212(a)(9)(A)(i) or (ii) if the Secretary of service in the United States Armed Homeland Security has consented to Forces. the alien’s application for admission. (b) Applicability to nonimmigrants. INA 212(a)(8)(B) applies to nonimmigrant [62 FR 67568, Dec. 29, 1997, as amended at 63 visa applicants who have departed from FR 64628, Nov. 23, 1998] or remained outside the United States § 40.92 Aliens unlawfully present. between September 8, 1939 and Sep- (a) 3-year bar. An alien described in tember 24, 1978 to avoid or evade train- INA 212(a)(9)(B)(i)(I) shall be ineligible ing or service in the U.S. Armed Forces for a visa for 3 years following depar- except an alien who held nonimmigrant ture from the United States. status at the time of such departure. (b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) shall be ineligible

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for a visa for 10 years following depar- § 40.104 Unlawful voters. ture from the United States. (a) Subject to paragraph (b) of this (c) Waiver. If a visa applicant is inad- section, an alien is ineligible for a visa missible under paragraph (a) or (b) of if the alien has voted in violation of this section but appears to the con- any Federal, State, or local constitu- sular officer to meet the prerequisites tional provision, statute, ordinance, or for seeking the benefits of INA regulation. 212(a)(9)(B)(v), the alien shall be in- (b) Such alien shall not be considered formed of the procedure for applying to to be ineligible under paragraph (a) of DHS for relief under that provision of this section if each natural parent of law. the alien (or, in the case of an adopted [62 FR 67568, Dec. 29, 1997] alien, each adoptive parent of the alien) is or was a citizen (whether by § 40.93 Aliens unlawfully present after birth or naturalization), the alien per- previous immigration violation. manently resided in the United States An alien described in INA prior to attaining the age of 16, and the 212(a)(9)(C)(i) is permanently ineligible alien reasonably believed at the time for a visa unless the Secretary of of such violation that he or she was a Homeland Security consents to the citizen. alien’s application for readmission not [70 FR 35527, June 21, 2005] less than 10 years following the alien’s last departure from the United States. § 40.105 Former citizens who re- Such application for readmission shall nounced citizenship to avoid tax- be made prior to the alien’s reembar- ation. kation at a place outside the United An alien who is a former citizen of States. the United States, who on or after Sep- [62 FR 67568, Dec. 29, 1997] tember 30, 1996, has officially renounced United States citizenship and §§ 40.94–40.99 [Reserved] who has been determined by the Sec- retary of Homeland Security to have Subpart K—Miscellaneous renounced citizenship to avoid United States taxation, is ineligible for a visa SOURCE: 56 FR 30422, July 2, 1991, unless under INA 212(a)(10)(E). otherwise noted. Redesignated at 61 FR 59184, [62 FR 67568, Dec. 29, 1997] Nov. 21, 1996. §§ 40.106–40.110 [Reserved] § 40.101 Practicing polygamists. An immigrant alien shall be ineli- Subpart L—Failure to Comply with gible under INA 212(a)(9)(A) only if the INA alien is coming to the United States to practice polygamy. SOURCE: 56 FR 30422, July 2, 1991, unless § 40.102 Guardian required to accom- otherwise noted. Redesignated at 61 FR 59184, pany excluded alien. Nov. 21, 1996. INA 212(a)(9)(B) is not applicable at § 40.201 Failure of application to com- the time of visa application. ply with INA. § 40.103 International child abduction. (a) Refusal under INA 221(g). The consular officer shall refuse an alien’s visa An alien who would otherwise be in- application under INA 221(g)(2) as fail- eligible under INA 212(a)(9)(C)(i) shall ing to comply with the provisions of not be ineligible under such paragraph INA or the implementing regulations if the U.S. citizen child in question is if: physically located in a foreign state (1) The applicant fails to furnish in- which is party to the Hague Conven- formation as required by law or regulation on the Civil Aspects of Inter- tions; national Child Abduction. (2) The application contains a false or [61 FR 1833, Jan. 24, 1996] incorrect statement other than one

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which would constitute a ground of in- § 40.203 Alien entitled to A, E, or G eligibility under INA 212(a)(6)(C); nonimmigrant classification. (3) The application is not supported An alien entitled to nonimmigrant by the documents required by law or classification under INA 101(a)(15) (A), regulations; (E), or (G) who is applying for an immi- (4) The applicant refuses to be grant visa and who intends to continue fingerprinted as required by regula- the activities required for such non- tions; immigrant classification in the United (5) The necessary fee is not paid for States is not eligible to receive an im- the issuance of the visa or, in the case migrant visa until the alien executes a of an immigrant visa, for the applica- written waiver of all rights, privileges, tion therefor; exemptions and immunities which (6) In the case of an immigrant visa would accrue by reason of such occupa- application, the alien fails to swear to, tional status. or affirm, the application before the consular officer; or § 40.204 [Reserved] (7) The application otherwise fails to meet specific requirements of law or § 40.205 Applicant for immigrant visa regulations for reasons for which the under INA 203(c). alien is responsible. An alien shall be ineligible to receive (b) Reconsideration of refusals. A re- a visa under INA 203(c) if the alien does fusal of a visa application under para- not have a high school education or its graph (a)(1) of this section does not bar equivalent, as defined in 22 CFR reconsideration of the application upon 42.33(a)(2), or does not have, within the compliance by the applicant with the five years preceding the date of appli- requirements of INA and the imple- cation for such visa, at least two years menting regulations or consideration of work experience in an occupation of a subsequent application submitted which requires at least two years of by the same applicant. training or experience. [56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996. Redesignated at 61 FR [59 FR 55045, Nov. 3, 1994. Redesignated at 61 59184, Nov. 21, 1996] FR 59184, Nov. 21, 1996]

§ 40.202 Certain former exchange visi- § 40.206 Frivolous applications. [Re- tors. served] An alien who was admitted into the §§ 40.207–40.210 [Reserved] United States as an exchange visitor, or who acquired such status after admission, and who is within the purview Subpart M—Waiver of Ground of of INA 212(e) as amended by the Act of Ineligibility April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), SOURCE: 56 FR 30422, July 2, 1991, unless is not eligible to apply for or receive an otherwise noted. Redesignated at 61 FR 59184, immigrant visa or a nonimmigrant visa Nov. 21, 1996] under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval of a peti- § 40.301 Waiver for ineligible non- tion on the alien’s behalf, unless: immigrants under INA 212(d)(3)(A). (a) It has been established that the (a) Report or recommendation to De- alien has resided and has been phys- partment. Except as provided in para- ically present in the country of the graph (b) of this section, consular offi- alien’s nationality or last residence for cers may, upon their own initiative, an aggregate of at least 2 years fol- and shall, upon the request of the Sec- lowing the termination of the alien’s retary of State or upon the request of exchange visitor status as required by the alien, submit a report to the De- INA 212(e), or partment for possible transmission to (b) The foreign residence requirement the Secretary of Homeland Security of INA 212(e) has been waived by the pursuant to the provisions of INA Secretary of Homeland Security in the 212(d)(3)(A) in the case of an alien who alien’s behalf. is classifiable as a nonimmigrant but

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who is known or believed by the con- 41.26 Diplomatic visas. sular officer to be ineligible to receive 41.27 Official visas. a nonimmigrant visa under the provisions of INA 212(a), other than INA Subpart D—Temporary Visitors 212(a) (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), 41.31 Temporary visitors for business or (3)(C), (3)(E)(i), or (3)(E)(ii). pleasure. (b) Recommendation to designated DHS 41.32 Nonresident alien Mexican border officer abroad. A consular officer may, crossing identification cards; combined in certain categories defined by the border crossing identification cards and Secretary of State, recommend di- B–1/B–2 visitor visa. 41.33 Nonresident alien Canadian border rectly to designated DHS officers that crossing identification card (BCC). the temporary admission of an alien ineligible to receive a visa be authorized Subpart E—Crewman and Crew-List Visas under INA 212(d)(3)(A). (c) Secretary of Homeland Security may 41.41 Crewmen. 41.42 [Reserved] impose conditions. When the Secretary of Homeland Security authorizes the Subpart F—Business and Media Visas temporary admission of an ineligible alien as a nonimmigrant and the con- 41.51 Treaty trader, treaty investor, or trea- sular officer is so informed, the con- ty alien in a specialty occupation. sular officer may proceed with the 41.52 Information media representative. 41.53 Temporary workers and trainees. issuance of a nonimmigrant visa to the 41.54 Intracompany transferees (executives, alien, subject to the conditions, if any, managers, and specialists). imposed by the Secretary of Homeland 41.55 Aliens with extraordinary ability. Security. 41.56 Athletes, artists and entertainers. 41.57 International cultural exchange visi- [56 FR 30422, July 2, 1991. Redesignated at 61 tors and visitors under the Irish Peace FR 59184, Nov. 21, 1996, as amended at 75 FR Process Cultural and Training Program 82243, Dec. 30, 2010] Act (IPPCTPA). 41.58 Aliens in religious occupations. PART 41—VISAS: DOCUMENTATION 41.59 Professionals under the North Amer- OF NONIMMIGRANTS UNDER THE ican Free Trade Agreement. IMMIGRATION AND NATION- Subpart G—Students and Exchange ALITY ACT, AS AMENDED Visitors

Subpart A—Passport and Visas Not 41.61 Students—academic and nonacademic. Required for Certain Nonimmigrants 41.62 Exchange visitors. 41.63 Two-year home-country physical pres- Sec. ence requirement. 41.0 Definitions. 41.1 Exemption by law or treaty from pass- Subpart H—Transit Aliens port and visa requirements. 41.2 Exemption or waiver by Secretary of 41.71 Transit aliens. State and Secretary of Homeland Secu- rity of passport and/or visa requirements Subpart I—Fiance(e)s and Other for certain categories of nonimmigrants. Nonimmigrants 41.3 Waiver by joint action of consular and 41.81 Fiance´ or spouse of a U.S. citizen and immigration officers of passport and/or derivative children. visa requirements. 41.82 Certain parents and children of section Subpart B—Classification of Nonimmigrants 101(a)(27)(I) special immigrants. [Re- served] 41.11 Entitlement to nonimmigrant status. 41.83 Certain witnesses and informants. 41.12 Classification symbols. 41.84 Victims of trafficking in persons. 41.86 Certain spouses and children of lawful Subpart C—Foreign Government Officials permanent resident aliens. 41.21 Foreign Officials—General. Subpart J—Application for Nonimmigrant 41.22 Officials of foreign governments. Visa 41.23 Accredited officials in transit. 41.24 International organization aliens. 41.101 Place of application. 41.25 NATO representatives, officials, and 41.102 Personal appearance of applicant. employees. 41.103 Filing an application.

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41.104 Passport requirements. U.S. citizen means a United States 41.105 Supporting documents and citizen or a U.S. non-citizen national. fingerprinting. United States qualifying tribal entity 41.106 Processing. means a tribe, band, or other group of 41.107 Visa fees. Native Americans formally recognized 41.108 Medical examination. by the United States Government Subpart K—Issuance of Nonimmigrant Visa which agrees to meet WHTI document standards. 41.111 Authority to issue visa. 41.112 Validity of visa. [73 FR 18418, Apr. 3, 2008] 41.113 Procedures in issuing visas. § 41.1 Exemption by law or treaty from Subpart L—Refusals and Revocations passport and visa requirements. Nonimmigrants in the following cat- 41.121 Refusal of individual visas. egories are exempt from the passport 41.122 Revocation of visas. and visa requirements of INA AUTHORITY: 8 U.S.C. 1104; Pub. L. 105–277, 212(a)(7)(B)(i)(I), (i)(II): 112 Stat. 2681–795 through 2681–801; 8 U.S.C. (a) Alien members of the U.S. Armed 1185 note (section 7209 of Pub. L. 108–458, as Forces. An alien member of the U.S. amended by section 546 of Pub. L. 109–295). Armed Forces in uniform or bearing SOURCE: 52 FR 42597, Nov. 5, 1987, unless proper military identification, who has otherwise noted. not been lawfully admitted for permanent residence, coming to the United EDITORIAL NOTE: Nomenclature changes to part 41 appear at 71 FR 34521 and 34522, June States under official orders or permit 15, 2006. of such Armed Forces (Sec. 284, 86 Stat. 232; 8 U.S.C. 1354). Subpart A—Passport and Visas (b) [Reserved] (c) Aliens entering from Guam, Puerto Not Required for Certain Non- Rico, or the Virgin Islands. An alien de- immigrants parting from Guam, Puerto Rico, or the Virgin Islands of the United States, § 41.0 Definitions. and seeking to enter the continental For purposes of this part and part 53: United States or any other place under Adjacent islands means Bermuda and the jurisdiction of the United States the islands located in the Caribbean (Sec. 212, 66 Stat. 188; 8 U.S.C. 1182.) Sea, except Cuba. (d) Armed Services personnel of a NATO Cruise ship means a passenger vessel member. Personnel belonging to the over 100 gross tons, carrying more than armed services of a government which 12 passengers for hire, making a voyage is a Party to the North Atlantic Treaty lasting more than 24 hours any part of and which has ratified the Agreement which is on the high seas, and for Between the Parties to the North At- which passengers are embarked or dis- lantic Treaty Regarding the Status of embarked in the United States or its Their Forces, signed at London on territories. June 19, 1951, and entering the United Ferry means any vessel operating on States under Article III of that Agree- a pre-determined fixed schedule and ment pursuant to an individual or col- route, which is being used solely to lective movement order issued by an provide transportation between places appropriate agency of the sending state that are no more than 300 miles apart or of NATO (TIAS 2846; 4 U.S.T. 1792.) and which is being used to transport (e) Armed Services personnel attached passengers, vehicles, and/or railroad to a NATO headquarters in the United cars. States. Personnel attached to a NATO Pleasure vessel means a vessel that is Headquarters in the United States set used exclusively for recreational or up pursuant to the North Atlantic personal purposes and not to transport Treaty, belonging to the armed serv- passengers or property for hire. ices of a government which is a Party United States means ‘‘United States’’ to the Treaty and entering the United as defined in section 215(c) of the Immi- States in connection with their official gration and Nationality Act of 1952, as duties under the provisions of the Pro- amended (8 U.S.C. 1185(c)). tocol on the Status of International

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Military Headquarters Set Up Pursu- the United States by pleasure vessel ant to the North Atlantic Treaty (TIAS from Canada under the remote inspec- 2978; 5 U.S.T. 875.) tion system may present a NEXUS pro- (f) Aliens entering pursuant to Inter- gram card. national Boundary and Water Commis- (2) FAST program. A Canadian citizen sion Treaty. All personnel employed ei- who is traveling as a participant in the ther directly or indirectly on the con- FAST program, and who is not other- struction, operation, or maintenance of wise required to present a passport and works in the United States undertaken visa as provided in paragraphs (k) and in accordance with the treaty con- (m) of this section and 8 CFR 212.1, cluded on February 3, 1944, between the may present a valid FAST card at a United States and Mexico regarding land or sea port-of-entry prior to enter- the functions of the International ing the United States from contiguous Boundary and Water Commission, and territory or adjacent islands. entering the United States temporarily (3) SENTRI program. A Canadian cit- in connection with such employment izen who is traveling as a participant (59 Stat. 1252; TS 994.) in the SENTRI program, and who is not otherwise required to present a pass- [52 FR 42597, Nov. 5, 1987, as amended at 56 port and visa as provided in paragraphs FR 30428, July 2, 1991; 61 FR 1835, Jan. 24, 1996; 71 FR 68430, Nov. 24, 2006; 73 FR 18418, (k) and (m) of this section and 8 CFR Apr. 3, 2008] 212.1, may present a valid SENTRI card at a land or sea port-of-entry prior to § 41.2 Exemption or waiver by Sec- entering the United States from con- retary of State and Secretary of tiguous territory or adjacent islands. Homeland Security of passport and/ (4) Canadian Indians. If designated by or visa requirements for certain the Secretary of Homeland Security, a categories of nonimmigrants. Canadian citizen holder of an Indian Pursuant to the authority of the Sec- and Northern Affairs Canada (‘‘INAC’’) retary of State and the Secretary of card issued by the Canadian Depart- Homeland Security under the INA, as ment of Indian Affairs and North De- amended, a passport and/or visa is not velopment, Director of Land and Trust required for the following categories of Services (LTS) in conformance with se- nonimmigrants: curity standards agreed upon by the (a) Canadian citizens. A visa is not re- Governments of Canada and the United quired for an American Indian born in States, and containing a machine read- Canada having at least 50 percentum of able zone, and who is arriving from blood of the American Indian race. A Canada, may present the card prior to visa is not required for other Canadian entering the United States at a land citizens except for those who apply for port-of-entry. admission in E, K, V, or S non- (5) Children. A child who is a Cana- immigrant classifications as provided dian citizen who is seeking admission in paragraphs (k) and (m) of this sec- to the United States when arriving tion and 8 CFR 212.1. A passport is re- from contiguous territory at a sea or quired for Canadian citizens applying land port-of-entry, may present certain for admission to the United States, ex- other documents if the arrival meets cept when one of the following excep- the requirements described in either tions applies: paragraph (i) or (ii) of this section. (1) NEXUS program. A Canadian cit- (i) Children under age 16. A Canadian izen who is traveling as a participant citizen who is under the age of 16 is in the NEXUS program, and who is not permitted to present an original or a otherwise required to present a pass- copy of his or her birth certificate, a port and visa as provided in paragraphs Canadian Citizenship Card, or a Cana- (k) and (m) of this section and 8 CFR dian Naturalization Certificate when 212.1, may present a valid NEXUS pro- arriving in the United States from con- gram card when using a NEXUS Air tiguous territory at land or sea ports- kiosk or when entering the United of-entry. States from contiguous territory or ad- (ii) Groups of children under age 19. A jacent islands at a land or sea port-of- Canadian citizen who is under age 19 entry. A Canadian citizen who enters and who is traveling with a public or

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private school group, religious group, sion to the United States according to social or cultural organization, or team the terms of the agreements entered associated with a youth sport organiza- between the Secretary of Homeland Se- tion may present an original or a copy curity and the entity. The Secretary of of his or her birth certificate, a Cana- Homeland Security will announce, by dian Citizenship Card, or a Canadian publication of a notice in the FEDERAL Naturalization Certificate when apply- REGISTER, documents designated under ing for admission to the United States this paragraph. A list of the documents from contiguous territory at all land designated under this paragraph will and sea ports-of-entry, when the group, also be made available to the public. organization or team is under the su- (b) Citizens of the British Overseas Ter- pervision of an adult affiliated with the ritory of Bermuda. A visa is not re- organization and when the child has quired, except for Citizens of the Brit- parental or legal guardian consent to ish Overseas Territory of Bermuda who travel. For purposes of this paragraph, apply for admission in E, K, V, or S an adult is considered to be a person nonimmigrant visa classification as who is age 19 or older. The following re- provided in paragraphs (k) and (m) of quirements will apply: this section and 8 CFR 212.1. A passport (A) The group, organization, or team is required for Citizens of the British must provide to CBP upon crossing the Overseas Territory of Bermuda apply- border, on organizational letterhead: ing for admission to the United States. (1) The name of the group, organiza- (c) Bahamian nationals and British tion or team, and the name of the su- subjects resident in the Bahamas. A pass- pervising adult; port is required. A visa is not required (2) A trip itinerary, including the if, prior to the embarkation of such an stated purpose of the trip, the location alien for the United States on a vessel of the destination, and the length of or aircraft, the examining U.S. immi- stay; gration officer at Freeport or Nassau (3) A list of the children on the trip; determines that the individual is clear- (4) For each child, the primary ad- ly and beyond a doubt entitled to address, primary phone number, date of mission. birth, place of birth, and the name of (d) British subjects resident in the Cay- at least one parent or legal guardian. man Islands or in the Turks and Caicos (B) The adult leading the group, or- Islands. A passport is required. A visa ganization, or team must demonstrate is not required if the alien arrives di- parental or legal guardian consent by rectly from the Cayman Islands or the certifying in the writing submitted in Turks and Caicos Islands and presents paragraph (a)(5)(ii)(A) of this section a current certificate from the Clerk of that he or she has obtained for each Court of the Cayman Islands or the child the consent of at least one parent Turks and Caicos Islands indicating no or legal guardian. criminal record. (C) The procedure described in this (e) British, French, and Netherlands paragraph is limited to members of the nationals and nationals of certain adja- group, organization, or team that are cent islands of the Caribbean which are under age 19. Other members of the independent countries. A passport is re- group, organization, or team must quired. A visa is not required of a Brit- comply with other applicable docu- ish, French or Netherlands national, or ment and/or inspection requirements of a national of Antigua, Barbados, found in this part and 8 CFR parts 212 Grenada, Jamaica, or Trinidad and To- and 235. bago, who has residence in British, (6) Enhanced driver’s license programs. French, or Netherlands territory lo- Upon the designation by the Secretary cated in the adjacent islands of the of Homeland Security of an enhanced Caribbean area, or has residence in An- driver’s license as an acceptable docu- tigua, Barbados, Grenada, Jamaica, or ment to denote identity and citizenship Trinidad and Tobago, if the alien: for purposes of entering the United (1) Is proceeding to the United States States, Canadian citizens may be per- as an agricultural worker; or mitted to present these documents in (2) Is the beneficiary of a valid, unex- lieu of a passport when seeking admis- pired, indefinite certification granted

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by the Department of Labor for em- commercial transportation into the ployment in the Virgin Islands of the United States. United States and is proceeding there- (4) A visa is not required of a Mexi- to for employment, or is the spouse or can national bearing a Mexican diplo- child of such an alien accompanying or matic or official passport who is a mili- following to join the alien. tary or civilian official of the Federal (f) Nationals and residents of the Brit- Government of Mexico entering the ish Virgin Islands. (1) A national of the United States for a stay of up to 6 British Virgin Islands and resident months for any purpose other than on therein requires a passport but not a assignment as a permanent employee visa if proceeding to the United States to an office of the Mexican Federal Virgin Islands. Government in the United States. A (2) A national of the British Virgin visa is also not required of the official’s Islands and resident therein requires a spouse or any of the official’s depend- passport but does not require a visa to ent family members under 19 years of apply for entry into the United States age who hold diplomatic or official if such applicant: passports and are in the actual com- (i) Is proceeding by aircraft directly pany of the official at the time of from St. Thomas, U.S. Virgin Islands; entry. This waiver does not apply to (ii) Is traveling to some other part of the spouse or any of the official’s fam- the United States solely for the pur- ily members classifiable under INA pose of business or pleasure as de- 101(a)(15) (F) or (M). scribed in INA 101(a)(15)(B); (h) Natives and residents of the Trust (iii) Satisfies the examining U.S. Im- Territory of the Pacific Islands. A visa migration officer at that port of entry and a passport are not required of a na- that he or she is admissible in all re- tive and resident of the Trust Territory spects other than the absence of a visa; of the Pacific Islands who has pro- and ceeded in direct and continuous transit (iv) Presents a current Certificate of from the Trust Territory to the United Good Conduct issued by the Royal Vir- States. gin Islands Police Department indi- (i) [Reserved] cating that he or she has no criminal (j) Except as provided in paragraphs record. (a) through (i) and (k) through (m) of (g) Mexican nationals. (1) A visa and a this section, all aliens are required to passport are not required of a Mexican present a valid, unexpired visa and national who is applying for admission passport upon arrival in the United from Mexico as a temporary visitor for States. An alien may apply for a waiv- business or pleasure at a land port-of- er of the visa and passport requirement entry, or arriving by pleasure vessel or if, either prior to the alien’s embar- ferry, if the national is in possession of kation abroad or upon arrival at a port a Form DSP–150, B–1/B–2 Visa and Bor- of entry, the responsible district direc- der Crossing Card, containing a ma- tor of the Department of Homeland Se- chine-readable biometric identifier, curity (DHS) in charge of the port of issued by the Department of State. entry concludes that the alien is un- (2) A visa and a passport are not re- able to present the required documents quired of a Mexican national who is ap- because of an unforeseen emergency. plying for admission from contiguous The DHS district director may grant a territory or adjacent islands at a land waiver of the visa or passport require- or sea port-of-entry, if the national is a ment pursuant to INA 212(d)(4)(A), member of the Texas Band of Kickapoo without the prior concurrence of the Indians or Kickapoo Tribe of Oklahoma Department of State, if the district di- who is in possession of a Form I–872 rector concludes that the alien’s claim American Indian Card issued by U.S. of emergency circumstances is legiti- Citizenship and Immigration Services mate and that approval of the waiver (USCIS). would be appropriate under all of the (3) A visa is not required of a Mexi- attendant facts and circumstances. can national employed as a crew mem- (k) Fiance(e) of a U.S. citizen. Not- ber on an aircraft belonging to a Mexi- withstanding the provisions of para- can company authorized to engage in graphs (a) through (h) of this section, a

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visa is required of an alien described in who does not qualify for any waiver such paragraphs who is classified, or provided in § 41.1 and is a member of a who seeks classification, under INA visiting group or excursion proceeding 101(a)(15)(K). to the United States under cir- (l) Visa waiver program. (1) A visa is cumstances which make it impractical not required of any person who seeks to procure a passport and visa in a admission to the United States for a timely manner. period of 90 days or less as a visitor for (b) Aliens for whom passport extension business or pleasure and who is eligible facilities are unavailable; passport waiver. to apply for admission to the United As alien whose passport is not valid for States as a Visa Waiver Program appli- the period prescribed in INA cant. (For the list of countries whose 212(a)(7)(B)(i)(I) and who is embarking nationals are eligible to apply for ad- for the United States at a port or place mission to the United States as Visa remote from any establishment at Waiver Program applicants, see 8 CFR which the passport could be revali- 217.2(a)). dated. (2) An alien denied admission under (c) Aliens precluded from obtaining the Visa Waiver Program by virtue of a passport extensions by foreign government ground of inadmissibility described in restrictions; passport waiver. An alien INA section 212(a) that is discovered at whose passport is not valid for the pe- the time of the alien’s application for riod prescribed in INA 212(a)(7)(B)(i)(I) admission at a port of entry or through and whose government, as a matter of use of an automated electronic data- policy, does not revalidate passports base may apply for a visa as the only more than 6 months prior to expiration means of challenging such a deter- or until the passport expires. mination. A consular officer must ac- (d) Emergent circumstances; visa waiv- cept and adjudicate any such applica- er. An alien well and favorably known tion if the alien otherwise fulfills all of at the consular office, who was pre- the application requirements contained viously issued a nonimmigrant visa in part 41, § 41.2(l)(1). which has expired, and who is pro- (m) Treaty Trader and Treaty Investor. ceeding directly to the United States Notwithstanding the provisions of under emergent circumstances which paragraph (a) of this section, a visa is preclude the timely issuance of a visa. required of a Canadian national who is (e) Members of armed forces of foreign classified, or who seeks classification, countries; visa and passport waiver. An under INA 101(a)(15)(E). alien on active duty in the armed [52 FR 42597, Nov. 5, 1987] forces of a foreign country and a member of a group of such armed forces EDITORIAL NOTE: For FEDERAL REGISTER ci- traveling to the United States, on be- tations affecting § 41.2, see the List of CFR Sections Affected, which appears in the half of the alien’s government or the Finding Aids section of the printed volume United Nations, under advance ar- and at www.fdsys.gov. rangements made with the appropriate military authorities of the United § 41.3 Waiver by joint action of con- States. The waiver does not apply to a sular and immigration officers of citizen or resident of Cuba, Mongolia, passport and/or visa requirements. North Korea (Democratic People’s Re- Under the authority of INA 212(d)(4), public of Korea), Vietnam (Socialist the documentary requirements of INA Republic of Vietnam), or the People’s 212(a)(7)(B)(i)(I), (i)(II) may be waived Republic of China. for any alien in whose case the con- (f) Landed immigrants in Canada; pass- sular officer serving the port or place port waiver. An alien applying for a visa of embarkation is satisfied after con- at a consular office in Canada: sultation with, and concurrence by, the (1) Who is a landed immigrant in appropriate immigration officer, that Canada; the case falls within any of the fol- (2) Whose port and date of expected lowing categories: arrival in the United States are known; (a) Residents of foreign contiguous ter- and ritory; visa and passport waiver. An alien (3) Who is proceeding to the United residing in foreign contiguous territory States under emergent circumstances

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which preclude the timely procurement ment for nonimmigrant status and the of a passport or Canadian certificate of type of nonimmigrant visa for which identity. application is made. (g) Authorization to individual consular (b) Aliens unable to establish non- office; visa and/or passport waiver. An immigrant status. (1) A nonimmigrant alien within the district of a consular visa shall not be issued to an alien who office which has been authorized by the has failed to overcome the presumption Department, because of unusual cir- of immigrant status established by INA cumstances prevailing in that district, 214(b). to join with immigration officers (2) In a borderline case in which an abroad in waivers of documentary re- alien appears to be otherwise entitled quirements in specific categories of to receive a visa under INA 101(a)(15)(B) cases, and whose case falls within one or (F) but the consular officer con- of those categories. cludes that the maintenance of the [52 FR 42597, Nov. 5, 1987, as amended at 56 alien’s status or the departure of the FR 30428, July 2, 1991; 60 FR 30188, June 8, alien from the United States as re- 1995; 61 FR 1835, Jan. 24, 1996; 63 FR 48577, quired is not fully assured, a visa may Sept. 11, 1998] nevertheless be issued upon the posting of a bond with the Secretary of Home- Subpart B—Classification of land Security under terms and condi- Nonimmigrants tions prescribed by the consular officer. § 41.11 Entitlement to nonimmigrant status. [52 FR 42597, Nov. 5, 1987, as amended at 61 (a) Presumption of immigrant status FR 1835, Jan. 24, 1996] and burden of proof. An applicant for a nonimmigrant visa, other than an alien § 41.12 Classification symbols. applying for a visa under INA 101(a)(15) A visa issued to a nonimmigrant (H)(i) or (L), shall be presumed to be an alien within one of the classes de- immigrant until the consular officer is scribed in this section shall bear an ap- satisfied that the alien is entitled to a propriate visa symbol to show the clas- nonimmigrant status described in INA sification of the alien. The symbol 101(a)(15) or otherwise established by shall be inserted in the space provided law or treaty. The burden of proof is on the visa. The following visa symbols upon the applicant to establish entitle- shall be used:

NONIMMIGRANTS

Symbol Class Section of law

A1 ...... Ambassador, Public Minister, Career Diplomat or Consular Officer, 101(a)(15)(A)(i). or Immediate Family. A2 ...... Other Foreign Government Official or Employee, or Immediate 101(a)(15)(A)(ii). Family. A3 ...... Attendant, Servant, or Personal Employee of A1 or A2, or Imme- 101(a)(15)(A)(iii). diate Family. 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. 101(a)(15)(C). 11.(3), (4), or (5) of the Headquarters Agreement. C3 ...... Foreign Government Official, Immediate Family, Attendant, Servant 212(d)(8). or Personal Employee, in Transit. 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).

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NONIMMIGRANTS—Continued

Symbol Class Section of law

E2C ...... Commonwealth of Northern Mariana Islands Investor, Spouse or Section 6(c) of Pub. L. 94–241, Child. as added by sec. 702(a) of Pub. L. 110–229. E3 ...... Australian Treaty Alien coming to the United States Solely to Per- 101(a)(15)(E)(iii). form Services in a Specialty Occupation. 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 101(a)(15)(F)(iii). language training program. G1 ...... Principal Resident Representative of Recognized Foreign Govern- 101(a)(15)(G)(i). ment to International Organization, Staff, or Immediate Family. G2 ...... Other Representative of Recognized Foreign Member Government 101(a)(15)(G)(ii). to International Organization, or Immediate Family. G3 ...... Representative of Nonrecognized or Nonmember Foreign Govern- 101(a)(15)(G)(iii). ment to International Organization, or Immediate Family. G4 ...... International Organization Officer or Employee, or Immediate Fam- 101(a)(15)(G)(iv). ily. G5 ...... Attendant, Servant, or Personal Employee of G1 through G4, or Im- 101(a)(15)(G)(v). mediate Family. 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 101(a)(15)(H)(ii)(a). the United States. H2B ...... Temporary Worker Performing Other Services Unavailable in the 101(a)(15)(H)(ii)(b). United States. 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 K3 ...... 101(a)(15)(K)(iii). L1 ...... Intracompany Transferee (Executive, Managerial, and Specialized 101(a)(15)(L). Knowledge Personnel Continuing Employment with International Firm or Corporation). 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 stu- 101(a)(15)(M)(iii). dent or other nonacademic student). 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 ...... Principal Permanent Representative of Member State to NATO (in- Art. 12, 5 UST 1094; Art. 20, 5 cluding any of its Subsidiary Bodies) Resident in the U.S. and UST 1098. 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. NATO 2 ...... Other Representative of member state to NATO (including any of Art. 13, 5 UST 1094; Art. 1, 4 its Subsidiary Bodies) including Representatives, Advisers, and UST 1794; Art. 3, 4 UST 1796. Technical Experts of Delegations, or Immediate Family; Depend- ents of Member of a Force Entering in Accordance with the Pro- visions of the NATO Status-of-Forces Agreement or in Accord- ance with the provisions of the ‘‘Protocol on the Status of Inter- national Military Headquarters’’; Members of Such a Force if Issued Visas. NATO 3...... Official Clerical Staff Accompanying Representative of Member Art. 14, 5 UST 1096. State to NATO (including any of its Subsidiary Bodies), or Imme- diate Family. NATO 4 ...... Official of NATO (Other Than Those Classifiable as NATO1), or Im- Art. 18, 5 UST 1098. mediate Family. NATO 5 ...... Experts, Other Than NATO Officials Classifiable Under NATO4, Art. 21, 5 UST 1100. Employed in Missions on Behalf of NATO, and their Dependents.

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NONIMMIGRANTS—Continued

Symbol Class Section of law

NATO 6 ...... Member of a Civilian Component Accompanying a Force Entering Art. 1, 4 UST 1794; Art. 3, 5 UST in Accordance with the Provisions of the NATO Status-of-Forces 877. Agreement; Member of a Civilian Component Attached to or Em- ployed 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. NATO 7...... Attendant, Servant, or Personal Employee of NATO1, NATO2, Arts. 12–20, 5 UST 1094–1098. NATO 3, NATO4, NATO5, and NATO6 Classes, or Immediate Family. O1 ...... Alien with Extraordinary Ability in Sciences, Arts, Education, Busi- 101(a)(15)(O)(i). ness or Athletics. O2 ...... Alien Accompanying and Assisting in the Artistic or Athletic Per- 101(a)(15)(O)(ii). formance by O1. O3 ...... Spouse or Child of O1 or O2 ...... 101(a)(15)(O)(iii). P1 ...... Internationally Recognized Athlete or Member of Internationally 101(a)(15)(P)(i). Recognized Entertainment Group. 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 101(a)(15)(S)(i). Organization or Enterprise. 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 ...... 101(a)(15)(T)(ii) as amended by sec. 201(a) of Pub. L. 110– 457. 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 101(a)(15)(V)(i) or of Immigrant Visa. 101(a)(15)(V)(ii). V2 ...... Child of a Lawful Permanent Resident Alien Awaiting Availability of 101(a)(15)(V)(i) or Immigrant Visa. 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).

[74 FR 61519, Nov. 25, 2009]

Subpart C—Foreign Government States to transact official business for Officials that government or international organization. § 41.21 Foreign Officials—General. (2) Attendants, as used in INA (a) Definitions. In addition to perti- 101(a)(15)(A)(iii), 101(a)(15)(G)(v), and nent INA definitions, the following 212(d)(8), and in the definition of the definitions are applicable: NATO–7 visa symbol, means aliens paid (1) Accredited, as used in INA from the public funds of a foreign gov- 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), ernment or from the funds of an inter- means an alien holding an official posi- national organization, accompanying tion, other than an honorary official or following to join the principal alien position, with a government or inter- to whom a duty or service is owed. national organization and possessing a (3) Immediate family, as used in INA travel document or other evidence of 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), intention to enter or transit the United and in classification under the NATO–

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1 through NATO–5 visa symbols, means (d) Grounds for refusal of visas applica- the spouse and unmarried sons and ble to certain A, C, G, and NATO classes. daughters, whether by blood or adop- (1) An A–1 or A–2 visa may not be tion, who are not members of some issued to an alien the Department has other household, and who will reside determined to be persona non grata. regularly in the household of the prin- (2) Only the provisions of INA 212(a) cipal alien. Under the INA 101(a)(15)(A) cited below apply to the indicated and 101(a)(15)(G) visa classifications, classes of nonimmigrant visa appli- ‘‘immediate family’’ also includes indi- cants: viduals who: (i) Class A–1: INA 212(a) (3)(A), (3)(B), (i) Are not members of some other and (3)(C); household; (ii) Class A–2: INA 212(a) (3)(A), (3)(B), (ii) Will reside regularly in the and (3)(C); household of the principal alien; (iii) Classes C–2 and C–3: INA 212(a) (iii) Are recognized as immediate family members of the principal alien (3)(A), (3)(B), (3)(C), and (7)(B); by the sending Government as dem- (iv) Classes G–1, G–2, G–3, and G–4: onstrated by eligibility for rights and INA 212(a) (3)(A), (3)(B), and (3)(C); benefits, such as the issuance of a dip- (v) Classes NATO–1, NATO–2, NATO– lomatic or official passport, or travel 3, NATO–4, and NATO–6: INA 212(a) or other allowances; and (3)(A), (3)(B), and (3)(C); (iv) Are individually authorized by (3) An alien within class A–3 or G–5 is the Department. subject to all grounds of refusal speci- (4) Servants and personal employees, as fied in INA 212 which are applicable to used in INA 101(a)(15)(A)(iii), nonimmigrants in general. 101(a)(15)(G)(v), and 212(d)(8), and in (4) Notwithstanding the provisions of classification under the NATO–7 visa Section 5(a) and consistent with Sec- symbol, means aliens employed in a do- tion 5(f)(2) of the Tom Lantos Block mestic or personal capacity by a prin- Burmese JADE (Junta’s Anti-Demo- cipal alien, who are paid from the pri- cratic Efforts) Act of 2008, Public Law vate funds of the principal alien and 110–286, visas may be issued to visa ap- seek to enter the United States solely plicants who are otherwise ineligible for the purpose of such employment. for a visa to travel to the United (b) Exception to passport validity re- States under section 5(a)(1) of the Act: quirement for aliens in certain A, G, and (i) To permit the United States and NATO classes. A nonimmigrant alien Burma to operate their diplomatic mis- for whom the passport requirement of sions, and to permit the United States INA 212(a)(7)(B)(i)(I) has not been to conduct other official United States waived and who is within one of the Government business in Burma; classes: (ii) To permit the United States to (1) Described in INA 101(a)(15)(A)(i) comply with the United Nations Head- and (ii); or quarters Agreement and other applica- (2) Described in INA 101(a)(15)(G)(i), ble international agreements. (ii), (iii), and (iv); or (3) NATO–1, NATO–2, NATO–3, [52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, NATO–4, or NATO–6 may present a 1988, as amended at 56 FR 30428, July 2, 1991; passport which is valid only for a suffi- 73 FR 56729, Sept. 30, 2008; 74 FR 36113, July cient period to enable the alien to 22, 2009] apply for admission at a port of entry prior to its expiration. § 41.22 Officials of foreign governments. (c) Exception to passport validity requirement for foreign government officials (a) Criteria for classification of foreign in transit. An alien classified C–3 under government officials. (1) An alien is clas- INA 212(d)(8) needs to present only a sifiable A–1 or A–2 under INA valid unexpired visa and a travel docu- 101(a)(15)(A) (i) or (ii) if the principal ment which is valid for entry into a alien: foreign country for at least 30 days (i) Has been accredited by a foreign from the date of application for admis- government recognized de jure by the sion into the United States. United States;

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(ii) Intends to engage solely in offi- (h) Courier and acting courier on official activities for that foreign govern- cial business—(1) Courier of career. An ment while in the United States; and alien regularly and professionally em- (iii) Has been accepted by the Presi- ployed as a courier by the government dent, the Secretary of State, or a con- of the country to which the alien owes sular officer acting on behalf of the allegiance is classifiable as a non- Secretary of State. immigrant under INA 101(a)(15)(A)(i), if (2) A member of the immediate fam- the alien is proceeding to the United ily of a principal alien is classifiable A– States on official business for that gov- 1 or A–2 under INA 101(a)(15)(A) (i) or ernment. (ii) if the principal alien is so classi- (2) Official acting as courier. An alien fied. not regularly and professionally em- (b) Classification under INA ployed as a courier by the government 101(a)(15)(A). An alien entitled to clas- of the country to which the alien owes sification under INA 101(a)(15)(A) shall allegiance is classifiable as a non- be classified under this section even if immigrant under INA 101(a)(15)(A)(ii), eligible for another nonimmigrant if the alien is holding an official posi- classification. tion and is proceeding to the United States as a courier on official business (c) Classification of attendants, serv- for that government. ants, and personal employees. An alien is (3) Nonofficial serving as courier. An classifiable as a nonimmigrant under alien serving as a courier but not regu- INA 101(a)(15)(A)(iii) if the consular of- larly and professionally employed as ficer is satisfied that the alien qualifies such who holds no official position under those provisions. with, or is not a national of, the coun- (d) Referral to the Department of spe- try whose government the alien is serv- cial cases concerning principal alien ap- ing, shall be classified as a non- plicants. In any case in which there is immigrant under INA 101(a)(15)(B). uncertainty about the applicability of (i) Official of foreign government not these regulations to a principal alien recognized by the United States. An offi- applicant requesting such non- cial of a foreign government not recog- immigrant status, the matter shall be nized de jure by the United States, who immediately referred to the Depart- is proceeding to or through the United ment for consideration as to whether States on an official mission or to an acceptance of accreditation will be international organization shall be granted. classified as a nonimmigrant under (e) Change of classification to that of a INA 101(a)(15) (B), (C), or (G)(iii). foreign government official. In the case of an alien in the United States seek- § 41.23 Accredited officials in transit. ing a change of nonimmigrant classi- An accredited official of a foreign fication under INA 248 to a classifica- government intending to proceed in tion under INA 101(a)(15)(A) (i) or (ii), immediate and continuous transit the question of acceptance of accredi- through the United States on official tation is determined by the Depart- business for that government is enti- ment. tled to the benefits of INA 212(d)(8) if (f) Termination of status. The Depart- that government grants similar privi- ment may, in its discretion, cease to leges to officials of the United States, recognize as entitled to classification and is classifiable C–3 under the provi- under INA 101(a)(15)(A) (i) or (ii) any sions of INA 101(a)(15)(C). Members of alien who has nonimmigrant status the immediate family, attendants, under that provision. servants, or personal employees of such (g) Classification of foreign government an official receive the same classifica- official. A foreign government official tion as the principal alien. or employee seeking to enter the United States temporarily other than § 41.24 International organization as a representative or employee of a aliens. foreign government is not classifiable (a) Definition of international organiza- under the provisions of INA tion. ‘‘International organization’’ 101(a)(15)(A). means:

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(1) Any public international organi- INTELSAT after at least six months of zation which has been designated by such employment, but prior to and in the President by Executive Order as anticipation of privatization and subse- entitled to enjoy the privileges, exemp- quent to March 17, 2000, will also con- tions, and immunities provided for in tinue to be classifiable under INA the International Organizations Immu- 101(a)(15)(G)(iv) for so long as that em- nities Act (59 Stat. 669, 22 U.S.C. 288); ployment continues. and (3) Family members of officers and (2) For the purpose of special immi- employees described in paragraphs grant status under INA 101(a)(27)(I), (c)(1) and (2) of this section who qualify INTELSAT or any successor or sepa- as ‘‘immediate family’’ under rated entity thereof. § 41.21(a)(3) and who are accompanying (b) Aliens coming to international orga- or following to join the principal are nizations. (1) An alien is classifiable also classifiable under INA under INA 101(a)(15)(G) if the consular 1010(a)(15)(G)(iv) for so long as the prin- officer is satisfied that the alien is cipal is so classified. within one of the classes described in (4) Attendants, servants, and per- that section and seeks to enter or tran- sonal employees of officers and em- sit the United States in pursuance of ployees described in paragraphs (c)(1) official duties. If the purpose of the and (2) of this section are not eligible entry or transit is other than pursu- for classification under INA ance of official duties, the alien is not 101(a)(15)(G)(v), given that the officers classifiable under INA 101(a)(15)(G). and employees described in paragraphs (2) An alien applying for a visa under (c)(1) and (2) of this section are not offi- the provisions of INA 101(a)(15)(G) may cers or employees of an ‘‘international not be refused solely on the grounds organization’’ for purposes of INA that the applicant is not a national of 101(a)(15)(G). the country whose government the applicant represents. [52 FR 42597, Nov. 5, 1987, as amended at 67 (3) An alien seeking to enter the FR 1414, Jan. 11, 2002; 67 FR 18822, Apr. 17, United States as a foreign government 2002] representative to an international organization, who is also proceeding to § 41.25 NATO representatives, officials, and employees. the United States on official business as a foreign government official within (a) Classification. An alien shall be the meaning of INA 101(a)(15)(A), shall classified under the symbol NATO–1, be issued a visa under that section, if NATO–2, NATO–3, NATO–4, or NATO–5 otherwise qualified. if the consular officer is satisfied that (4) An alien not classifiable under the alien is seeking admission to the INA 101(a)(15)(A) but entitled to classi- United States under the applicable pro- fication under INA 101(a)(15)(G) shall be vision of the Agreement on the Status classified under the latter section, even of the North Atlantic Treaty Organiza- if also eligible for another non- tion, National Representatives and immigrant classification. International Staff, or is a member of (c) Officers and employees of privatized the immediate family of an alien clas- INTELSAT, their family members and do- sified NATO–1 through NATO–5. (See mestic servants. (1) Officers and employ- § 41.12 for classes of aliens entitled to ees of privatized INTELSAT who both classification under each symbol.) were employed by INTELSAT, and held (b) Armed services personnel. Armed status under INA 101(a)(15)(G)(iv) for at services personnel entering the United least six months prior to privatization States in accordance with the provi- on July 17, 2001, will continue to be so sions of the Agreement Between the classifiable for so long as they are offi- Parties to the North Atlantic Treaty cers or employees of INTELSAT or a Regarding the Status of Their Forces successor or separated entity thereof. or in accordance with the provisions of (2) Aliens who had had G–4 status as the Protocol on the Status of Inter- officers and employees of INTELSAT national Military Headquarters Set Up but became officers or employees of a Pursuant to the North Atlantic Treaty successor or separated entity of may enter the United States under the

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appropriate treaty waiver of documen- (c) Classes of aliens eligible to receive tary requirements contained in § 41.1 diplomatic visas. (1) A nonimmigrant (d) or (e). If a visa is issued it is classi- alien who is in possession of a diplo- fiable under the NATO–2 symbol. matic passport or its equivalent shall, (c) Dependents of armed services per- if otherwise qualified, be eligible to re- sonnel. Dependents of armed services ceive a diplomatic visa irrespective of personnel referred to in paragraph (b) the classification of the visa under of this section shall be classified under § 41.12 if within one of the following the symbol NATO–2. categories: (d) Members of civilian components and (i) Heads of states and their alter- dependents. Alien members of a civilian nates; component accompanying a force en- (ii) Members of a reigning royal fam- tering in accordance with the provi- ily; sions of the NATO Status-of-Forces (iii) Governors-general, governors, Agreement, and dependents, or alien high commissioners, and similar high members of a civilian component at- administrative or executive officers of tached to or employed by an Allied a territorial unit, and their alternates; Headquarters under the Protocol on (iv) Cabinet ministers and their as- the Status of International Military sistants holding executive or adminis- Headquarters, and dependents shall be trative positions not inferior to that of classified under the symbol NATO–6. the head of a departmental division, (e) Attendant, servant, or personal em- and their alternates; ployee of an alien classified NATO–1 (v) Presiding officers of chambers of through NATO–6. An alien attendant, national legislative bodies; servant, or personal employee of an (vi) Justices of the highest national alien classified NATO–1 through court of a foreign country; NATO–6, and any member of the imme- (vii) Ambassadors, public ministers, diate family of such attendant, serv- other officers of the diplomatic service ant, or personal employee, shall be and consular officers of career; classified under the symbol NATO–7. (viii) Military officers holding a rank not inferior to that of a brigadier gen- § 41.26 Diplomatic visas. eral in the United States Army or Air (a) Definitions. (1) Diplomatic passport Force and Naval officers holding a rank means a national passport bearing that not inferior to that of a rear admiral in title and issued by a competent author- the United States Navy; ity of a foreign government. (ix) Military, naval, air and other at- (2) Diplomatic visa means any non- tache´ and assistant attache´ assigned to immigrant visa, regardless of classi- a foreign diplomatic mission; fication, which bears that title and is (x) Officers of foreign-government issued in accordance with the regula- delegations to international organizations of this section. tions so designated by Executive Order; (3) Equivalent of a diplomatic passport (xi) Officers of foreign-government means a national passport, issued by a delegations to, and officers of, inter- competent authority of a foreign gov- national bodies of an official nature, ernment which does not issue diplo- other than international organizations matic passports to its career diplo- so designated by Executive Order; matic and consular officers, indicating (xii) Officers of a diplomatic mission the career diplomatic or consular sta- of a temporary character proceeding to tus of the bearer. or through the United States in the (b) Place of application. With the ex- performance of their official duties; ception of certain aliens in the United (xiii) Officers of foreign-government States issued nonimmigrant visas by delegations proceeding to or from a the Department under the provisions of specific international conference of an § 41.111(b), application for a diplomatic official nature; visa shall be made at a diplomatic mis- (xiv) Members of the immediate fam- sion or at a consular office authorized ily of a principal alien who is within to issue diplomatic visas, regardless of one of the classes described in para- the nationality or residence of the ap- graphs (c)(1)(i) to (c)(1)(xi) inclusive, of plicant. this section;

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(xv) Members of the immediate fam- Department, the Chief of a U.S. Diplo- ily accompanying or following to join matic Mission, the Deputy Chief of the principal alien who is within one of Mission, the Counselor for Consular Af- the classes described in paragraphs fairs or the principal officer of a con- (c)(1)(xii) and (c)(1)(xiii) of this section; sular post not under the jurisdiction of (xvi) Diplomatic couriers proceeding a diplomatic mission. to or through the United States in the [52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, performance of their official duties. 1988] (2) Aliens Classifiable G–4, who are otherwise qualified, are eligible to re- § 41.27 Official visas. ceive a diplomatic visa if accom- (a) Definition. Official visa means any panying these officers: nonimmigrant visa, regardless of clas- (i) The Secretary General of the sification, which bears that title and is United Nations; issued in accordance with these regula- (ii) An Under Secretary General of tions. the United Nations; (b) Place of application. Official visas (iii) An Assistant Secretary General are ordinarily issued only when appli- of the United Nations; cation is made in the consular district (iv) The Administrator or the Deputy of the applicant’s residence. When di- Administrator of the United Nations rected by the Department, or in the Development Program; discretion of the consular officer, offi- (v) An Assistant Administrator of the cial visas may be issued when applica- United Nations Development Program; tion is made in a consular district in (vi) The Executive Director of the: which the alien is physically present (A) United Nation’s Children’s Fund; but does not reside. Certain aliens in (B) United Nations Institute for the United States may be issued offi- Training and Research; cial visas by the Department under the (C) United Nations Industrial Devel- provisions of § 41.111(b). opment Organization; (c) Classes of aliens eligible to receive (vii) The Executive Secretary of the: official visas. (1) A nonimmigrant with- (A) United Nations Economic Com- in one of the following categories who mission for Africa; is not eligible to receive a diplomatic (B) United Nations Economic Com- visa shall, if otherwise qualified, be eli- mission for Asia and the Far East; gible to receive an official visa irre- (C) United Nations Economic Com- spective of classification of the visa mission for Latin America; under § 41.12: (D) United Nations Economic Com- (i) Aliens within a class described in mission for Europe; § 41.26(c)(2) who are ineligible to receive (viii) The Secretary General of the a diplomatic visa because they are not United Nations Conference on Trade in possession of a diplomatic passport and Development; or its equivalent; (ix) The Director General of the (ii) Aliens classifiable under INA Latin American Institute for Economic 101(a)(15)(A); and Social Planning; (iii) Aliens, other than those de- (x) The United Nations High Commis- scribed in § 41.26(c)(3) who are classifi- sioner for Refugees; able under INA 101(a)(15)(G), except (xi) The United Nations Commis- those classifiable under INA sioner for Technical Cooperation; 101(a)(15)(G)(iii) unless the government (xii) The Commissioner General of of which the alien is an accredited rep- the United Nations Relief and Works resentative is recognized de jure by the Agency for Palestine Refugees in the United States; Near East; (iv) Aliens classifiable under INA (xiii) The spouse or child of any non- 101(a)(15)(C) as nonimmigrants de- immigrant alien listed in paragraphs scribed in INA 212(d)(8); (c)(2)(i) through (c)(2)(xii) of this sec- (v) Members and members-elect of tion. national legislative bodies; (3) Other individual aliens or classes (vi) Justices of the lesser national of aliens are eligible to receive diplo- and the highest state courts of a for- matic visas upon authorization of the eign country;

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(vii) Officers and employees of na- Subpart D—Temporary Visitors tional legislative bodies proceeding to or through the United States in the § 41.31 Temporary visitors for business performance of their official duties; or pleasure. (viii) Clerical and custodial employ- (a) Classification. An alien is classifi- ees attached to foreign-government able as a nonimmigrant visitor for delegations to, and employees of, inter- business (B–1) or pleasure (B–2) if the national bodies of an official nature, consular officer is satisfied that the other than international organizations alien qualifies under the provisions of so designated by Executive Order, pro- INA 101(a)(15)(B), and that: ceeding to or through the United (1) The alien intends to leave the States in the performance of their offi- United States at the end of the tem- cial duties; porary stay (consular officers are au- (ix) Clerical and custodial employees thorized, if departure of the alien as re- attached to a diplomatic mission of a quired by law does not seem fully as- temporary character proceeding to or sured, to require the posting of a bond through the United States in the per- with the Secretary of Homeland Secu- formance of their official duties; rity in a sufficient sum to ensure that (x) Clerical and custodial employees at the end of the temporary visit, or attached to foreign-government delega- upon failure to maintain temporary tions proceeding to or from a specific visitor status, or any status subse- international conference of an official quently acquired under INA 248, the nature; alien will depart from the United (xi) Officers and employees of foreign States); governments recognized de jure by the (2) The alien has permission to enter United States who are stationed in for- a foreign country at the end of the eign contiguous territories or adjacent temporary stay; and islands; (3) Adequate financial arrangements (xii) Members of the immediate fam- have been made to enable the alien to ily, attendants, servants and personal carry out the purpose of the visit to employees of, when accompanying or and departure from the United States. following to join, a principal alien who (b) Definitions. (1) The term ‘‘busi- is within one of the classes referred to ness,’’ as used in INA 101(a)(15)(B), re- or described in paragraphs (c)(1)(i) fers to conventions, conferences, con- through (c)(1)(xi) inclusive of this sec- sultations and other legitimate activi- tion; ties of a commercial or professional na- (xiii) Attendants, servants and per- ture. It does not include local employ- sonal employees accompanying or fol- ment or labor for hire. For the pur- lowing to join a principal alien who is poses of this section building or con- within one of the classes referred to or struction work, whether on-site or in described in paragraphs (c)(1)(i) plant, shall be deemed to constitute through (c)(1)(xiii) inclusive of purely local employment or labor for § 41.26(c)(2). hire; provided that the supervision or (2) Other individual aliens or classes training of others engaged in building of aliens are eligible to receive official or construction work (but not the ac- visas upon the authorization of the De- tual performance of any such building partment, the Chief of a U.S. Diplo- or construction work) shall not be matic Mission, the Deputy Chief of deemed to constitute purely local em- Mission, the Counselor for Consular Af- ployment or labor for hire if the alien fairs, or the principal officer of a con- is otherwise qualified as a B–1 non- sular post not under the jurisdiction of immigrant. An alien seeking to enter a diplomatic mission. as a nonimmigrant for employment or [52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, labor pursuant to a contract or other 1988] prearrangement is required to qualify under the provisions of § 41.53. An alien

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of distinguished merit and ability seek- Application’’ in the certification sec- ing to enter the United States tempo- tion of the application. rarily with the idea of performing tem- (3) Personal appearance. Each appli- porary services of an exceptional na- cant shall appear in person before a ture requiring such merit and ability, consular officer to be interviewed re- but having no contract or other pre- garding eligibility for a visitor visa, arranged employment, may be classi- unless the consular officer waives per- fied as a nonimmigrant temporary vis- sonal appearance. itor for business. (4) Issuance and format. A B–1/B–2 (2) The term pleasure, as used in INA Visa/BCC issued on or after April 1, 101(a)(15)(B), refers to legitimate ac- 1998, shall consist of a card, Form DSP– tivities of a recreational character, in- 150, containing a machine-readable bio- cluding tourism, amusement, visits metric identifier. It shall contain the with friends or relatives, rest, medical following data: treatment, and activities of a fra- (i) Post symbol; ternal, social, or service nature. (ii) Number of the card; (iii) Date of issuance; [52 FR 42597, Nov. 5, 1987; 53 FR 9172, Mar. 21, (iv) Indicia ‘‘B–1/B–2 Visa and Border 1988] Crossing Card’’; (v) Name, date of birth, and sex of § 41.32 Nonresident alien Mexican bor- the person to whom issued; and der crossing identification cards; combined border crossing identi- (vi) Date of expiration. fication cards and B–1/B–2 visitor (b) Validity. A BCC previously issued visas. by a consular officer in Mexico on Form I–186, Nonresident Alien Mexican (a) Combined B–1/B–2 visitor visa and Border Crossing Card, or Form I–586, border crossing identification card (B–1/B– Nonresident Alien Border Crossing 2 Visa/BCC)—(1) Authorization for Card, is valid until the expiration date issuance. Consular officers assigned to a on the card (if any) unless previously consular office in Mexico designated by revoked, but not later than the date, the Deputy Assistant Secretary for currently October 1, 2001, on which a Visa Services for such purpose may machine-readable, biometric identifier issue a border crossing identification in the card is required in order for the card, as that term is defined in INA card to be usable for entry. The BCC 101(a)(6), in combination with a B–1/B– portion of a B–1/B–2 Visa/BCC issued to 2 nonimmigrant visitor visa (B–1/B–2 a Mexican national pursuant to provi- Visa/BCC), to a nonimmigrant alien sions of this section contained in the 22 who: CFR, parts 1 to 299, edition revised as (i) Is a citizen and resident of Mexico; of April 1, 1998 is valid until the date of (ii) Seeks to enter the United States expiration, unless previously revoked, as a temporary visitor for business or but not later than the date, currently pleasure as defined in INA 101(a)(15)(B) October 1, 2001, on which a machine- for periods of stay not exceeding six readable, biometric identifier in the months; card is required in order for the card to (iii) Is otherwise eligible for a B–1 or be usable for entry. a B–2 temporary visitor visa. (c) Revocation. A consular or immi- (2) Procedure for application. Mexican gration officer may revoke a BCC applicants shall apply for a B–1/B–2 issued on Form I–186 or Form I–586, or Visa/BCC at any U.S. consular office in a B–1/B–2 Visa/BCC under the provi- Mexico designated by the Deputy As- sions of § 41.122, or if the consular or sistant Secretary of State for Visa immigration officer determines that Services pursuant to paragraph (a) of the alien to whom any such document this section to accept such applica- was issued has ceased to be a resident tions. The application shall be sub- and/or a citizen of Mexico. Upon rev- mitted electronically on Form DS–160 ocation, the consular or immigration or, as directed by a consular officer, on officer shall notify the issuing consular Form DS–156. If submitted electroni- or immigration office. If the revoked cally, it must be signed electronically document is a card, the consular or im- by clicking the box designated ‘‘Sign migration officer shall take possession

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of the card and physically cancel it the date of expiration, if any, unless under standard security conditions. If previously revoked, but not later than the revoked document is a stamp in a the date, currently October 1, 2001, on passport the consular or immigration which a machine readable biometric officer shall write or stamp ‘‘canceled’’ identifier is required in order for a BCC on the face of the document. to be usable for entry. (d) Voidance. (1) The voiding pursuant (b) Revocation of Canadian BCC. A to INA 222(g) of the visa portion of a B– consular or immigration officer may 1/B–2 Visa/BCC issued at any time by a revoke a BCC or a B–1/B–2 Visa/BCC consular officer in Mexico under provi- issued in Canada at any time under the sions of this section contained in the 22 provisions of § 41.122, or if the consular CFR, parts 1 to 299, edition revised as or immigration officer determines that of April 1, 1998, also voids the BCC portion of that document. the alien to whom any such document (2) A BCC issued at any time by a was issued has ceased to be a perma- consular officer in Mexico under any nent resident of Canada. Upon revoca- provisions of this section contained in tion, the consular or immigration offi- the 22 CFR, parts 1 to 299, edition re- cer shall notify the issuing consular of- vised as of April 1, 1998, is void if a con- fice and if the revoked document is a sular or immigration officer deter- card, the consular or immigration offi- mines that the alien has violated the cer shall take possession of the card conditions of the alien’s admission into and physically cancel it under standard the United States, including the period security conditions. If the revoked doc- of stay authorized by the Secretary of ument is a stamp in a passport the con- Homeland Security. sular or immigration officer shall write (3) A consular or immigration officer or stamp ‘‘canceled’’ on the face of the shall immediately take possession of a document. card determined to be void under para- (c) Voidance. (1) The voiding pursuant graphs (d) (1) or (2) of this section and to INA 222(g) of the visa portion of a B– physically cancel it under standard se- 1/B–2 Visa/BCC issued at any time by a curity conditions. If the document consular officer in Canada under provi- voided in paragraphs (d) (1) or (2) is in sions of this section contained in the 22 the form of a stamp in a passport the CFR, parts 1 to 299, edition revised as officer shall write or stamp ‘‘canceled’’ across the face of the document. of April 1, 1998, also voids the BCC por- (e) Replacement. When a B–1/B–2 Visa/ tion of that document. BCC issued under the provisions of this (2) A BCC issued at any time by a section, or a BCC or B–1/B–2 Visa/BCC consular officer in Canada under any issued under any provisions of this sec- provisions of this section contained in tion contained in the 22 CFR, parts 1 to the 22 CFR, parts 1 to 299, edition re- 299, edition revised as of April 1, 1998, vised as of April 1, 1998, is void if a con- has been lost, mutilated, destroyed, or sular or immigration officer finds that expired, the person to whom such card the alien has violated the conditions of was issued may apply for a new B–1/B– the alien’s admission into the United 2 Visa/BCC as provided in this section. States, including the period of stay au- [64 FR 45163, Aug. 19, 1999, as amended at 71 thorized by the Secretary of Homeland FR 30591, May 30, 2006; 71 FR 34521, June 15, Security. 2006; 73 FR 23068, Apr. 29, 2008] (3) A consular or immigration officer shall immediately take possession of a § 41.33 Nonresident alien Canadian card determined to be void under para- border crossing identification card graphs (c) (1) or (2) of this section and (BCC). physically cancel it under standard se- (a) Validity of Canadian BCC. A Cana- curity conditions. If the document dian BCC or the BCC portion of a Cana- voided under paragraphs (c) (1) or (2) is dian B–1/B–2 Visa/BCC issued to a per- in the form of a stamp in a passport manent resident of Canada pursuant to the officer shall write or stamp ‘‘can- provisions of this section contained in celed’’ across the face of the document. the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is valid until [64 FR 45164, Aug. 19, 1999]

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Subpart E—Crewman and Crew- classified E–1 if the employee is in or is List Visas coming to the United States to engage in duties of an executive or supervisory § 41.41 Crewmen. character, or, if employed in a lesser capacity, the employee has special (a) Alien classifiable as crewman. An alien is classifiable as a nonimmigrant qualifications that make the services crewman upon establishing to the sat- to be rendered essential to the efficient isfaction of the consular officer the operation of the enterprise. The em- qualifications prescribed by INA ployer must be: 101(a)(15)(D), provided that the alien (i) A person having the nationality of has permission to enter some foreign the treaty country, who is maintaining country after a temporary landing in the status of treaty trader if in the the United States, unless the alien is United States or, if not in the United barred from such classification under States, would be classifiable as a trea- the provisions of INA 214(f). ty trader; or (b) Alien not classifiable as crewman. (ii) An organization at least 50% An alien employed on board a vessel or owned by persons having the nation- aircraft in a capacity not required for ality of the treaty country who are normal operation and service, or an maintaining nonimmigrant treaty alien employed or listed as a regular trader status if residing in the United member of the crew in excess of the States or, if not residing in the United number normally required, shall not be States, who would be classifiable as classified as a crewman. treaty traders. (3) Spouse and children of treaty trader. [52 FR 42597, Nov. 5, 1987, as amended at 66 FR 10364, Feb. 15, 2001] The spouse and children of a treaty trader accompanying or following to § 41.42 [Reserved] join the principal alien are entitled to the same classification as the principal Subpart F—Business and Media alien. The nationality of a spouse or Visas child of a treaty trader is not material to the classification of the spouse or § 41.51 Treaty trader, treaty investor, child under the provisions of INA or treaty alien in a specialty occu- 101(a)(15)(E). pation. (4) Representative of foreign informa- (a) Treaty trader—(1) Classification. An tion media. Representatives of foreign alien is classifiable as a nonimmigrant information media shall first be con- treaty trader (E–1) if the consular offi- sidered for possible classification as cer is satisfied that the alien qualifies nonimmigrants under the provisions of under the provisions of INA INA 101(a)(15)(I), before consideration 101(a)(15)(E)(i) and that the alien: is given to their possible classification (i) Will be in the United States solely as treaty traders under the provisions to carry on trade of a substantial na- of INA 101(a)(15)(E) and of this section. ture, which is international in scope, (5) Treaty country. A treaty country either on the alien’s behalf or as an is for purposes of this section a foreign employee of a foreign person or organi- state with which a qualifying Treaty of zation engaged in trade, principally be- Friendship, Commerce, and Navigation tween the United States and the for- or its equivalent exists with the United eign state of which the alien is a na- States. A treaty country includes a for- tional, (consideration being given to eign state that is accorded treaty visa any conditions in the country of which privileges under INA 101(a)(15)(E) by the alien is a national which may af- specific legislation (other than the fect the alien’s ability to carry on such INA). substantial trade); and (6) Nationality of the treaty country. (ii) Intends to depart from the United The authorities of the foreign state of States upon the termination of E–1 sta- which the alien claims nationality de- tus. termine the nationality of an indi- (2) Employee of treaty trader. An alien vidual treaty trader. In the case of an employee of a treaty trader may be organization, ownership must be traced

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as best as is practicable to the individ- the enterprise’s overall operation or a uals who ultimately own the organiza- major component thereof. tion. (i) An executive position provides the (7) Trade. The term ‘‘trade’’ as used employee great authority to determine in this section means the existing policy of and direction for the enter- international exchange of items of prise. trade for consideration between the (ii) A position primarily of super- United States and the treaty country. visory character grants the employee Existing trade includes successfully ne- supervisory responsibility for a signifi- gotiated contracts binding upon the cant proportion of an enterprise’s oper- parties that call for the immediate ex- ations and does not generally involve change of items of trade. This exchange the direct supervision of low-level em- must be traceable and identifiable. ployees. Title to the trade item must pass from (12) Special qualifications. Special one treaty party to the other. qualifications are those skills and/or (8) Item of trade. Items that qualify aptitudes that an employee in a lesser for trade within these provisions in- capacity brings to a position or role clude but are not limited to goods, that are essential to the successful or services, technology, monies, inter- efficient operation of the enterprise. national banking, insurance, transpor- (i) The essential nature of the alien’s tation, tourism, communications, and skills to the employing firm is deter- some news gathering activities. mined by assessing the degree of prov- (9) Substantial trade. Substantial en expertise of the alien in the area of trade for the purposes of this section operations involved, the uniqueness of entails the quantum of trade sufficient the specific skill or aptitude, the to ensure a continuous flow of trade length of experience and/or training items between the United States and with the firm, the period of training or the treaty country. This continuous other experience necessary to perform flow contemplates numerous exchanges effectively the projected duties, and over time rather than a single trans- the salary the special qualifications action, regardless of the monetary can command. The question of special value. Although the monetary value of skills and qualifications must be deter- the trade item being exchanged is a rel- mined by assessing the circumstances evant consideration, greater weight is on a case-by-case basis. given to more numerous exchanges of (ii) Whether the special qualifica- larger value. In the case of smaller tions are essential will be assessed in businesses, an income derived from the light of all circumstances at the time value of numerous transactions that is of each visa application on a case-by- sufficient to support the treaty trader case basis. A skill that is unique at one and his or her family constitutes a fa- point may become commonplace at a vorable factor in assessing the exist- later date. Skills required to start up ence of substantial trade. an enterprise may no longer be essen- (10) Principal trade. Trade shall be tial after initial operations are com- considered to be principal trade be- plete and are running smoothly. Some tween the United States and the treaty skills are essential only in the short- country when over 50% of the volume term for the training of locally hired of international trade of the treaty employees. Long-term essentiality trader is conducted between the United might, however, be established in con- States and the treaty country of the nection with continuous activities in treaty trader’s nationality. such areas as product improvement, (11) Executive or supervisory character. quality control, or the provision of a The executive or supervisory element service not generally available in the of the employee’s position must be a United States. principal and primary function of the (13) Labor disputes. Citizens of Canada position and not an incidental or col- or Mexico shall not be entitled to clas- lateral function. Executive and/or su- sification under this section if the Sec- pervisory duties grant the employee ul- retary of Homeland Security and the timate control and responsibility for Secretary of Labor have certified that:

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(i) There is in progress a strike or alien. The nationality of a spouse or lockout in the course of a labor dispute child of a treaty investor is not mate- in the occupational classification at rial to the classification of the spouse the place or intended place of employ- or child under the provisions of INA ment; and 101(a)(15)(E). (ii) The alien has failed to establish (4) Representative of foreign informa- that the alien’s entry will not affect tion media. Representatives of foreign adversely the settlement of the strike information media shall first be con- or lockout or the employment of any sidered for possible classification as person who is involved in the strike or nonimmigrants under the provisions of lockout. INA 101(a)(15)(I), before consideration (b) Treaty investor—(1) Classification. is given to their possible classification An alien is classifiable as a non- as nonimmigrants under the provisions immigrant treaty investor (E’2) if the of INA 101(a)(15)(E) and of this section. consular officer is satisfied that the (5) Treaty country. A treaty country alien qualifies under the provisions of is for purposes of this section a foreign INA 101(a)(15)(E)(ii) and that the alien: state with which a qualifying Treaty of (i) Has invested or is actively in the Friendship, Commerce, and Navigation process of investing a substantial or its equivalent exists with the United amount of capital in bona fide enter- States. A treaty country includes a for- prise in the United States, as distinct eign state that is accorded treaty visa from a relatively small amount of cap- privileges under INA 101(a)(15)(E) by ital in a marginal enterprise solely for specific legislation (other than the the purpose of earning a living; and INA). (ii) Is seeking entry solely to develop and direct the enterprise; and (6) Nationality of the treaty country. (iii) Intends to depart from the The authorities of the foreign state of United States upon the termination of which the alien claims nationality de- E’2 status. termine the nationality of an indi- (2) Employee of treaty investor. An vidual treaty investor. In the case of alien employee of a treaty investor an organization, ownership must be may be classified E–2 if the employee is traced as best as is practicable to the in or is coming to the United States to individuals who ultimately own the or- engage in duties of an executive or su- ganization. pervisory character, or, if employed in (7) Investment. Investment means the a lesser capacity, the employee has treaty investor’s placing of capital, in- special qualifications that make the cluding funds and other assets, at risk services to be rendered essential to the in the commercial sense with the ob- efficient operation of the enterprise. jective of generating a profit. The trea- The employer must be: ty investor must be in possession of (i) A person having the nationality of and have control over the capital in- the treaty country, who is maintaining vested or being invested. The capital the status of treaty investor if in the must be subject to partial or total loss United States or, if not in the United if investment fortunes reverse. Such States, who would be classifiable as a investment capital must be the inves- treaty investor; or tor’s unsecured personal business cap- (ii) An organization at least 50% ital or capital secured by personal as- owned by persons having the nation- sets. Capital in the process of being in- ality of the treaty country who are vested or that has been invested must maintaining nonimmigrant treaty in- be irrevocably committed to the enter- vestor status if residing in the United prise. The alien has the burden of es- States or, if not residing in the United tablishing such irrevocable commit- States, who would be classifiable as ment given to the particular cir- treaty investors. cumstances of each case. The alien (3) Spouse and children of treaty inves- may use any legal mechanism avail- tor. The spouse and children of a treaty able, such as by placing invested funds investor accompanying or following to in escrow pending visa issuance, that join the principal alien are entitled to would not only irrevocably commit the same classification as the principal funds to the enterprise but that might

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also extend some personal liability pro- (12) Executive or supervisory character. tection to the treaty investor. The executive or supervisory element (8) Bona fide enterprise. The enterprise of the employee’s position must be a must be a real and active commercial principal and primary function of the or entrepreneurial undertaking, pro- position and not an incidental or col- ducing some service or commodity for lateral function. Executive and/or su- profit and must meet applicable legal pervisory duties grant the employee ul- requirements for doing business in the timate control and responsibility for particular jurisdiction in the United the enterprise’s overall operation or a States. major component thereof. (9) Substantial amount of capital. A (i) An executive position provides the substantial amount of capital con- employee great authority to determine stitutes that amount that is: policy of and direction for the enter- (i)(A) Substantial in the proportional prise. sense, i.e., in relationship to the total (ii) A position primarily of super- cost of either purchasing an estab- visory character grants the employee lished enterprise or creating the type supervisory responsibility for a signifi- of enterprise under consideration; cant proportion of an enterprise’s operations and does not generally involve (B) Sufficient to ensure the treaty in- the direct supervision of low-level em- vestor’s financial commitment to the ployees. successful operation of the enterprise; (13) Special qualifications. Special and qualifications are those skills and/or (C) Of a magnitude to support the aptitudes that an employee in a lesser likelihood that the treaty investor will capacity brings to a position or role successfully develop and direct the en- that are essential to the successful or terprise. efficient operation of the enterprise. (ii) Whether an amount of capital is (i) The essential nature of the alien’s substantial in the proportionality skills to the employing firm is deter- sense is understood in terms of an in- mined by assessing the degree of prov- verted sliding scale; i.e., the lower the en expertise of the alien in the area of total cost of the enterprise, the higher, operations involved, the uniqueness of proportionately, the investment must the specific skill or aptitude, the be to meet these criteria. length of experience and/or training (10) Marginal enterprise. A marginal with the firm, the period of training or enterprise is an enterprise that does other experience necessary to perform not have the present or future capacity effectively the projected duties, and to generate more than enough income the salary the special qualifications to provide a minimal living for the can command. The question of special treaty investor and his or her family. skills and qualifications must be deter- An enterprise that does not have the mined by assessing the circumstances capacity to generate such income but on a case-by-case basis. that has a present or future capacity to (ii) Whether the special qualifica- make a significant economic contribu- tions are essential will be assessed in tion is not a marginal enterprise. The light of all circumstances at the time projected future capacity should gen- of each visa application on a case-by- erally be realizable within five years case basis. A skill that is unique at one from the date the alien commences point may become commonplace at a normal business activity of the enter- later date. Skills required to start up prise. an enterprise may no longer be essen- (11) Solely to develop and direct. The tial after initial operations are com- business or individual treaty investor plete and are running smoothly. Some does or will develop and direct the en- skills are essential only in the short- terprise by controlling the enterprise term for the training of locally hired through ownership of at least 50% of employees. Long-term essentiality the business, by possessing operational might, however, be established in con- control through a managerial position nection with continuous activities in or other corporate device, or by other such areas as product improvement, means. quality control, or the provision of a

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service not generally available in the (2) Spouse and children of treaty alien United States. in a specialty occupation. The spouse (14) Labor disputes. Citizens of Canada and children of a treaty alien in a spe- or Mexico shall not be entitled to clas- cialty occupation accompanying or fol- sification under this section if the Sec- lowing to join the principal alien are, if retary of Homeland Security and the otherwise admissible, entitled to the Secretary of Labor have certified that: same classification as the principal (i) There is in progress a strike or alien. A spouse or child of a principal lockout in the course of a labor dispute E–3 treaty alien need not have the in the occupational classification at same nationality as the principal in the place or intended place of employ- order to be classifiable under the provi- ment; and sions of INA 101(a)(15)(E). Spouses and (ii) The alien has failed to establish children of E–3 principals are not sub- that the alien’s entry will not affect ject to the numerical limitations of adversely the settlement of the strike INA 214(g)(11)(B). or lockout or the employment of any [70 FR 52293, Sept. 2, 2005] person who is involved in the strike or lockout. § 41.52 Information media representa- (c) Nonimmigrant E–3 treaty aliens in tive. specialty occupations—(1) Classification. An alien is classifiable as a non- (a) Representative of foreign press, immigrant treaty alien in a specialty radio, film, or other information media. occupation if the consular officer is An alien is classifiable as a non- satisfied that the alien qualifies under immigrant information media rep- the provisions of INA 101(a)(15)(E)(iii) resentative if the consular officer is and that the alien: satisfied that the alien qualifies under (i) Possesses the nationality of the the provisions of INA 101(a)(15)(I) and is country statutorily designated for a representative of a foreign press, treaty aliens in specialty occupation radio, film, or other information me- status; dium having its home office in a for- (ii) Satisfies the requirements of INA eign country, the government of which 214(i)(1) and the corresponding regula- grants reciprocity for similar privi- tions defining specialty occupation leges to representatives of such a me- promulgated by the Department of dium having home offices in the United Homeland Security; States. (iii) Presents to a consular officer a (b) Classification when applicant eligi- copy of the Labor Condition Applica- ble for both I visa and E visa. An alien tion signed by the employer and ap- who will be engaged in foreign informa- proved by the Department of Labor, tion media activities in the United and meeting the attestation require- States and meets the criteria set forth ments of INA Section 212(t)(1); in paragraph (a) of this section shall be (iv) Presents to a consular officer classified as a nonimmigrant under evidence of the alien’s academic or INA 101(a)(15)(I) even if the alien may other qualifying credentials as re- also be classifiable as a nonimmigrant quired under INA 214(i)(1), and a job under the provisions of INA offer letter or other documentation 101(a)(15)(E). from the employer establishing that (c) Spouse and children of information upon entry into the United States the media representative. The spouse or applicant will be engaged in qualifying child of an information media rep- work in a specialty occupation, as de- resentative is classifiable under INA fined in paragraph (c)(1)(ii) of this sec- 101(a)(15)(I) if accompanying or fol- tion, and that the alien will be paid the lowing to join the principal alien. actual or prevailing wage referred to in INA 212(t)(1); § 41.53 Temporary workers and train- (v) Has a visa number allocated under ees. INA 214(g)(11)(B); and, (a) Requirements for H classification. (vi) Intends to depart upon the termi- An alien shall be classifiable under INA nation of E–3 status. 101(a)(15)(H) if:

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(1) The consular officer is satisfied fulfilled the residence requirement or that the alien qualifies under that sec- obtained a waiver of the requirement. tion; and either [57 FR 31449, July 16, 1992; as amended at 61 (2) With respect to the principal FR 1833, Jan. 24, 1996; 65 FR 52306, Aug. 29, alien, the consular officer has received 2000] official evidence of the approval by DHS, or by the Department of Labor in § 41.54 Intracompany transferees (executives, managers, and specialists). the case of temporary agricultural workers, of a petition to accord such (a) Requirements for L classification. classification or of the extension by An alien shall be classifiable under the DHS of the period of authorized entry provisions of INA 101(a)(15)(L) if: in such classification; or (1) The consular officer is satisfied that the alien qualifies under that sec- (3) The consular officer is satisfied tion; and either the alien is the spouse or child of an (2) In the case of an individual peti- alien so classified and is accompanying tion, the consular officer has received or following to join the principal alien. official evidence of the approval by (b) Petition approval. The approval of DHS of a petition to accord such classi- a petition by the Department of Home- fication or of the extension by DHS of land Security or by the Department of the period of authorized stay in such Labor does not establish that the alien classification; or is eligible to receive a nonimmigrant (3) In the case of a blanket petition, visa. the alien has presented to the consular (c) Validity of visa. The period of va- officer official evidence of the approval lidity of a visa issued on the basis of by DHS of a blanket petition paragraph (a) to this section must not (i) listing only those intracompany exceed the period indicated in the peti- relationships and positions found to tion, notification, or confirmation re- qualify under INA 101(a)(15)(L) or quired in paragraph (a)(2) of this sec- (ii) to accord such classification to tion. qualified aliens who are being transferred to qualifying positions identified (d) Alien not entitled to H classification. in such blanket petition; or The consular officer must suspend ac- (4) The consular officer is satisfied tion on this alien’s application and the alien is the spouse or child of an submit a report to the approving DHS alien so classified and is accompanying office if the consular officer knows or or following to join the principal alien. has reason to believe that an alien ap- (b) Petition approval. The approval of plying for a visa under INA a petition by DHS does not establish 101(a)(15)(H) is not entitled to the clas- that the alien is eligible to receive a sification as approved. nonimmigrant visa. (e) ‘‘Trainee’’ defined. The term Train- (c) Validity of visa. (1) The period of ee, as used in INA 101(a)(15)(H)(iii), validity of a visa issued on the basis of means a nonimmigrant alien who seeks paragraph (a) to this section must not to enter the United States temporarily exceed the period indicated in the peti- at the invitation of an individual, orga- tion, notification, or confirmation re- nization, firm, or other trainer for the quired in paragraph (a)(2)(i) or (ii) of purpose of receiving instruction in any this section. field of endeavor (other than graduate (2) The period of validity of a visa medical education or training), includ- issued on the basis of paragraph (a) to ing agriculture, commerce, commu- this section is not limited to the period nication, finance, government, trans- of validity indicated in the blanket pe- portation, and the professions. tition, notification, or confirmation required in paragraphs (a)(2)(iii) or (iv) of (f) Former exchange visitor. Former ex- this section. change visitors who are subject to the (d) Alien not entitled to L–1 classifica- 2-year residence requirement of INA tion under individual petition. The con- 212(e) are ineligible to apply for visas sular officer must suspend action on under INA 101(a)(15)(H) until they have the alien’s application and submit a report to the approving DHS office if the

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consular officer knows or has reason to (1) The consular officer is satisfied believe that an alien applying for a that the alien qualifies under the pro- visa as the beneficiary of an approved visions of that section; and either individual petition under INA (2) With respect to the principal 101(a)(15)(L) is not entitled to such alien, the consular officer has received classification as approved. official evidence of the approval by (e) Labor disputes. Citizens of Canada DHS of a petition to accord such classi- or Mexico shall not be entitled to clas- fication or of the extension by DHS of sification under this section if the Sec- the period of authorized stay in such retary of Homeland Security and the classification; or Secretary of Labor have certified that: (3) The consular officer is satisfied (1) There is in progress a strike or the alien is the spouse or child of an lockout in the course of a labor dispute alien so classified and is accompanying in the occupational classification at or following to join the principal alien. the place or intended place of employ- (b) Approval of visa. The approval of a ment; and petition by DHS does not establish (2) The alien has failed to establish that the alien is eligible to receive a that the alien’s entry will not affect nonimmigrant visa. adversely the settlement of the strike (c) Validity of visa. The period of va- or lockout or the employment of any lidity of a visa issued on the basis of person who is involved in the strike or paragraph (a) to this section must not lockout. exceed the period indicated in the peti- (f) Alien not entitled to L–1 classification, notification, or confirmation re- tion under blanket petition. The consular quired in paragraph (a)(2) of this sec- officer shall deny L classification based tion. on a blanket petition if the documenta- (d) Alien not entitled to O classification. tion presented by the alien claiming to The consular officer must suspend ac- be a beneficiary thereof does not estab- tion on the alien’s application and sub- lish to the satisfaction of the consular mit a report to the approving DHS of- officer that fice if the consular officer knows or has (1) The alien has been continuously reason to believe that an alien apply- employed by the same employer, an af- ing for a visa under INA 101(a)(15)(O) is filiate or a subsidiary thereof, for 1 not entitled to the classification as ap- year within the 3 years immediately proved. preceding the application for the L visa; [57 FR 31450, July 16, 1992; as amended at 61 (2) The alien was occupying a quali- FR 1833, Jan. 24, 1996] fying position throughout that year; or (3) The alien is destined to a quali- § 41.56 Athletes, artists and enter- fying position identified in the petition tainers. and in an organization listed in the pe- (a) Requirements for P classification. tition. An alien shall be classifiable under the (g) Former exchange visitor. Former provisions of INA 101(a)(15)(P) if: exchange visitors who are subject to (1) The consular officer is satisfied the 2-year foreign residence require- that the alien qualifies under the pro- ment of INA 212(e) are ineligible to visions of that section; and either apply for visas under INA 101(a)(15)(L) (2) With respect to the principal until they have fulfilled the residence alien, the consular officer has received requirement or obtained a waiver of official evidence of the approval by the requirement. DHS of a petition to accord such classi- [57 FR 31449, July 16, 1992, as amended at 58 fication or of the extension by DHS of FR 68527, Dec. 28, 1993; 61 FR 1833, Jan. 24, the period of authorized stay in such 1996] classification; or (3) The consular officer is satisfied § 41.55 Aliens with extraordinary abil- the alien is the spouse or child of an ity. alien so classified and is accompanying (a) Requirements for O classification. or following to join the principal alien. An alien shall be classifiable under the (b) Approval of visa. The approval of a provisions of INA 101(a)(15)(O) if: petition by DHS does not establish

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that the alien is eligible to receive a classification under INA section nonimmigrant visa. 101(a)(15)(Q)(ii). A consular officer may (c) Validity of visa. The period of va- classify an alien under the provisions lidity of a visa issued on the basis of of INA section 101(a)(15)(Q)(ii) if: paragraph (a) to this section must not (i) The consular officer is satisfied exceed the period indicated in the peti- that the alien qualifies under the pro- tion, confirmation, or extension of stay visions of that section; required in paragraph (a)(2) of this sec- (ii) The consular officer has received tion. a certification letter prepared by a pro- (d) Alien not entitled to P classification. gram administration charged by the The consular officer must suspend ac- Department of State in consultation tion on the alien’s application and sub- with the Department of Justice with mit a report to the approving DHS of- the operation of the Irish Peace Proc- fice if the consular officer knows or has ess Cultural and Training Program reason to believe that an alien apply- (IPPCTP) which establishes at a min- ing for a visa under INA 101(a)(15)(P) is not entitled to the classification as ap- imum: proved. (A) The name of the alien’s employer in the United States, and, if applicable, [57 FR 31450, July 16, 1992; as amended at 61 in Ireland or Northern Ireland; FR 1833, Jan. 24, 1996] (B) If the alien is participating in the § 41.57 International cultural exchange IPPCTP as an unemployed alien, that visitors and visitors under the Irish the employment in the United States is Peace Process Cultural and Train- in an occupation designated by the em- ing Program Act (IPPCTPA). ployment and training administration (a) International cultural exchange visi- of the alien’s place of residence as tors—(1) Requirements for classification being most beneficial to the local econ- under INA section 101(a)(15)(Q)(i). A con- omy; sular officer may classify an alien (C) That the program administrator under the provisions of INA has accepted the alien into the pro- 101(a)(15)(Q)(i) if: gram; (i) The consular officer is satisfied (D) That the alien has been phys- that the alien qualifies under the pro- ically resident in Northern Ireland or visions of that section, and in the counties of Louth, Monaghan, (ii) The consular officer has received Cavan, Leitrim, Sligo, and Donegal in official evidence of the approval by the Republic of Ireland and the length DHS of a petition or the extension by of time immediately prior to the DHS of the period of authorized stay in issuance of the letter that the alien has such classification. claimed such place as his or her resi- (2) Approval of petition. DHS approval dence; of a petition does not establish that (E) The alien’s date and place of the alien is eligible to receive a non- birth; immigrant visa. (F) If the alien is participating in the (3) Validity of visa. The period of va- IPPCTP as an already employed partic- lidity of a visa issued on the basis of this paragraph (a) must not exceed the ipant, the length of time immediately period indicated in the petition, notifi- prior to the issuance of the letter that cation, or confirmation required in the alien has been employed by an em- paragraph (a)(2) of this section. ployer in the alien’s place of physical (4) Alien not entitled to Q classification. residence; The consular officer must suspend ac- (iii) If applicable, the consular officer tion on the alien’s application and sub- is satisfied the alien is the spouse or mit a report to the approving DHS of- child of an alien classified under INA fice if the consular officer knows or has section 101(a)(15)(Q)(ii), and is accom- reason to believe that an alien does not panying or following to join the prin- qualify under INA section cipal alien. 101(a)(15)(Q)(i). (2) Aliens not entitled to such classifica- (b) Trainees under INA section tion. The consular officer must suspend 101(a)(15)(Q)(ii)—(1) Requirements for action on the alien’s application and

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notify the alien and the designated pro- (2) In the case of citizens of Mexico, gram administrator described in para- the consular officer has received from graph (b)(1)(ii) of this section if the DHS an approved petition according consular officer knows or has reason to classification as a NAFTA Professional believe that an alien does not qualify to the alien or official confirmation of under INA section 101(a)(15)(Q)(ii). such petition approval, or DHS confirmation of the alien’s authorized stay [65 FR 14770, Mar. 17, 2000, as amended at 66 FR 52502, Oct. 16, 2001] in such classification; or (3) In the case of citizens of Canada, § 41.58 Aliens in religious occupations. the alien shall have presented to the consular officer sufficient evidence of (a) Requirements for ‘‘R’’ classification. an offer of employment in the United An alien shall be classifiable under the States requiring employment of a per- provisions of INA 101(a)(15)(R) if: son in a professional capacity con- (1) The consular officer is satisfied sistent with NAFTA Chapter 16 Annex that the alien qualifies under the pro- 1603 Appendix 1603.D.1 and sufficient visions of that section; and evidence that the alien possesses the (2) With respect to the principal credentials of that profession as listed alien, the consular officer has received in said appendix; or official evidence of the approval by (4) The alien is the spouse or child of USCIS of a petition to accord such an alien so classified and is accom- classification or the extension by panying or following to join the prin- USCIS of the period of authorized stay cipal alien. in such classification; or (b) Visa validity. The period of valid- (3) The alien is the spouse or child of ity of a visa issued pursuant to para- an alien so classified and is accom- graph (a) of this section may not ex- panying or following to join the prin- ceed the period indicated in the peti- cipal alien. tion, notification, or confirmation re- (b) Petition approval. The approval of quired in paragraph (a)(2) of this sec- a petition by USCIS does not establish tion. The approval of a petition by DHS that the alien is eligible to receive a does not establish that the alien is eli- nonimmigrant visa. gible to receive a nonimmigrant visa. (c) Validity of visa. The period of va- The period of validity of a visa issued lidity of a visa issued on the basis of pursuant to subparagraph (a)(3) of this paragraph (a) to this section must not section may not exceed the period es- precede or exceed the period indicated tablished on a reciprocal basis. in the petition, notification, or con- (c) Temporary entry. Temporary entry firmation required in paragraph (a)(2) means an entry into the United States of this section. without the intent to establish perma- (d) Aliens not entitled to classification nent residence. The alien must satisfy under INA 101(a)(15)(R). The consular the consular officer that the proposed officer must suspend action on the stay is temporary. A temporary period alien’s application and submit a report has a reasonable, finite end that does to the approving USCIS office if the not equate to permanent residence. consular officer knows or has reason to The circumstances surrounding an ap- believe that an alien applying for a plication should reasonably and con- visa under INA 101(a)(15)(R) is not enti- vincingly indicate that the alien’s tem- tled to the classification as approved. porary work assignment in the United [74 FR 51237, Oct. 6, 2009] States will end predictably and that the alien will depart upon completion § 41.59 Professionals under the North of the assignment. American Free Trade Agreement. (d) Labor disputes. Citizens of Canada (a) Requirements for classification as a or Mexico shall not be entitled to clas- NAFTA professional. An alien shall be sification under this section if the Sec- classifiable under the provisions of INA retary of Homeland Security and the 214(e) if: Secretary of Labor have certified that: (1) The consular officer is satisfied (1) There is in progress a strike or that the alien qualifies under the pro- lockout in the course of a labor dispute visions of that section; and in the occupational classification at

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the place or intended place of employ- sular officer that other arrangements ment; and have been made to meet those ex- (2) The alien has failed to establish penses; that the alien’s entry will not affect (iii) The alien, unless coming to par- adversely the settlement of the strike ticipate exclusively in an English lan- or lockout or the employment of any guage training program, has sufficient person who is involved in the strike or knowledge of the English language to lockout. undertake the chosen course of study [58 FR 68527, Dec. 28, 1993, as amended at 63 or training. If the alien’s knowledge of FR 10305, Mar. 3, 1998] English is inadequate, the consular officer may nevertheless find the alien so Subpart G—Students and classifiable if the accepting institution Exchange Visitors offers English language training, and has accepted the alien expressly for a § 41.61 Students—academic and non- full course of study (or part-time academic. course of study for Border Commuter (a) Definitions—(1) Academic, in INA Students) in a language with which the 101(a)(15)(F), refers to an established alien is familiar, or will enroll the college, university, seminary, conserv- alien in a combination of courses and atory, academic high school, elemen- English instruction which will con- tary school, or other academic institu- stitute a full course of study if re- tion, or a language training program. quired; and (2) Nonacademic, in INA 101(a)(15)(M), (iv) The alien intends, and will be refers to an established vocational or able, to depart upon termination of other recognized nonacademic institution (other than a language training student status. program). (2) An alien otherwise qualified for (b) Classification. (1) An alien is clas- classification as a student, who intends sifiable under INA 101(a)(15)(F) (i) or to study the English language exclu- (iii) or INA 101(a)(15)(M) (i) or (iii) if sively, may be classified as a student the consular officer is satisfied that under INA 101(a) (15) (F) (i) even the alien qualifies under one of those though no credits are given by the ac- sections, and: cepting institution for such study. The (i) The alien has been accepted for at- accepting institution, however, must tendance for the purpose of pursuing a offer a full course of study in the full course of study, or, for students English language and must accept the classified under INA 101(a)(15) (F)(iii) alien expressly for such study. and (M)(iii) Border Commuter Stu- (3) The alien spouse and minor chil- dents, full or part-time course of study, dren of an alien who has been or will be in an academic institution approved by issued a visa under INA 101(a) (15) (F) the Secretary of Homeland Security for (i) or 101(a) (15) (M) (i) may receive foreign students under INA nonimmigrant visas under INA 101(a) 101(a)(15)(F)(i) or a nonacademic insti- (15) (F) (ii) or 101(a) (15) (M) (ii) if the tution approved under 101(a)(15)(M)(i). consular officer is satisfied that they The alien has presented a SEVIS Form will be accompanying or following to I–20, Form I–20A–B/I–20ID. Certificate of Eligibility For Nonimmigrant Stu- join the principal alien; that sufficient dent Status—For Academic and Lan- funds are available to cover their ex- guage Students, or Form I–20M–N/I– penses in the United States; and, that 20ID, Certificate of Eligibility for Non- they intend to leave the United States immigrant Student Status—For Voca- upon the termination of the status of tional Students, properly completed the principal alien. and signed by the alien and a des- (c) Posting of bond. In borderline ignated official as prescribed in regula- cases involving an alien otherwise tions found at 8 CFR 214.2(F) and qualified for classification under INA 214.2(M); 101(a) (15) (F), the consular officer is (ii) The alien possesses sufficient authorized to require the posting of a funds to cover expenses while in the bond with the Secretary of Homeland United States or can satisfy the con- Security in a sum sufficient to ensure

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that the alien will depart upon the con- database or via direct access to SEVIS clusion of studies or in the event of or ISEAS prior to the issuance of a J– failure to maintain student status. 1 or J–2 visa. Evidence of the payment (d) Electronic verification and notifica- of any applicable fees, if not presented tion. A student’s acceptance docu- with other documentation, may also be mentation must be verified by a con- verified through the Consolidated Con- sular official’s review of the SEVIS sular Database or direct access to data in the Consolidated Consular SEVIS. Upon issuance of a J–1 or J–2 Database or via direct access to SEVIS visa, notification of such issuance must or ISEAS prior to the issuance of an F– be entered into the SEVIS database. 1, F–2, M–1 or M–3 visa. Evidence of the (b) J–2 Classification. The spouse or payment of any applicable fees, if not minor child of an alien classified J–1 is presented with other documentation, classifiable J–2. may also be verified through the Con- (c) Applicability of INA 212(e). (1) An solidated Consular Database or direct alien is subject to the 2-year foreign access to SEVIS. Upon issuance of an F residence requirement of INA 212(e) if: or M visa, notification of such issuance (i) The alien’s participation in one or must be entered into the SEVIS data- more exchange programs was wholly or base. partially financed, directly or indi- [52 FR 42597, Nov. 5, 1987, as amended at 67 rectly, by the U.S. Government or by FR 58695, Sept. 18, 2002; 68 FR 28131, May 23, the government of the alien’s last legal 2003] permanent residence; or (ii) At the time of the issuance of an § 41.62 Exchange visitors. exchange visitor visa and admission to (a) J–1 classification. An alien is clas- the United States, or, if not required to sifiable as an exchange visitor if quali- obtain a nonimmigrant visa, at the fied under the provisions of INA 101(a) time of admission as an exchange vis- (15) (J) and the consular officer is satis- itor, or at the time of acquisition of fied that the alien: such status after admission, the alien (1) Has been accepted to participate, is a national and resident or, if not a and intends to participate, in an ex- national, a legal permanent resident change visitor program designated by (or has status equivalent thereto) of a the Bureau of Education and Cultural country which the Secretary of State Affairs, Department of State, as evi- has designated, through publication by denced by the presentation of a prop- public notice in the FEDERAL REGISTER, erly executed Form DS–2019, Certifi- as clearly requiring the services of per- cate of Eligibility for Exchange Visitor sons engaged in the field of specialized (J–1) Status; knowledge or skill in which the alien (2) Has sufficient funds to cover ex- will engage during the exchange visitor penses or has made other arrangements program; or to provide for expenses; (iii) The alien acquires exchange vis- (3) Has sufficient knowledge of the itor status in order to receive graduate English language to undertake the pro- medical education or training in the gram for which selected, or, except for United States. an alien coming to participate in a (2) For the purposes of this paragraph graduate medical education or training the terms financed directly and financed program, the sponsoring organization indirectly are defined as set forth in sec- is aware of the language deficiency and tion § 514.1 of chapter V. has nevertheless indicated willingness (3) The country in which 2 years’ res- to accept the alien; and idence and physical presence will sat- (4) Meets the requirements of INA isfy the requirements of INA 212(e) in 212(j) if coming to participate in a the case of an alien determined to be graduate medical education or training subject to such requirements is the program. country of which the alien is a national (5) Electronic verification and notifica- and resident, or, if not a national, a tion. An exchange visitor’s acceptance legal permanent resident (or has status documentation and payment of any ap- equivalent thereto). plicable fees must be verified by a con- (4) If an alien is subject to the 2-year sular official’s review of the SEVIS foreign residence requirement of INA

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212(e), the spouse or child of that alien, residence, or for a nonimmigrant visa accompanying or following to join the under section 101(a)(15)(H) or section alien, is also subject to that require- 101(a)(15)(L) until is established that ment if admitted to the United States such person has resided and been phys- pursuant to INA 101(a) (15) (J) or if sta- ically present in the country of his na- tus is acquired pursuant to that section tionality or his last legal permanent after admission. residence for an aggregate of at least (d) Notification to alien concerning 2- two years following departure from the year foreign residence requirement. Be- United States. fore the consular officer issues an ex- (2) Upon the favorable recommenda- change visitor visa, the consular officer tion of the Secretary of State, pursu- must inform the alien whether the ant to the request of an interested alien will be subject to the 2-year resi- United States Government agency (or dence and physical presence require- in the case of an alien who is a grad- ment of INA 212(e) if admitted to the uate of a foreign medical school pur- United States under INA 101(a) (15) (J) suing a program in graduate medical and, if so, the country in which 2 years’ education or training, pursuant to the residence and physical presence will request of a State Department of Pub- satisfy the requirement. lic Health, or its equivalent), or of the [52 FR 42597, Nov. 5, 1987, as amended at 67 Secretary of Homeland Security after FR 58695, Sept. 18, 2002; 68 FR 28132, May 23, the latter has determined that depar- 2003; 72 FR 10061, Mar. 7, 2007] ture from the United States would impose exceptional hardship upon the § 41.63 Two-year home-country phys- alien’s spouse or child (if such spouse ical presence requirement. or child is a citizen of the United (a) Statutory basis for rule. Section States or a legal permanent resident 212(e) of the Immigration and Nation- alien), or that the alien cannot return ality Act, as amended, provides in sub- to the country of his nationality or stance as follows: last legal permanent residence because (1) No person admitted under Section he would be subject to persecution on 101(a) (15)(J) or acquiring such status account of race, religion, or political after admission: opinion, the Secretary of Homeland Se- (i) Whose participation in the pro- curity may waive the requirement of gram for which he came to the United such two-year foreign residence abroad States was financed in whole or in in the case of any alien whose admis- part, directly or indirectly, by an agen- sion to the United States is found by cy of the United States Government or the Secretary of Homeland Security to by the government of the country of be in the public interest except that in his nationality or of his last legal per- the case of a waiver requested by a manent residence; State Department of Public Health, or (ii) Who at the time of admission or its equivalent, the waiver shall be sub- acquisition of status under 101(a)(15)(J) ject to the requirements of section was a national or legal permanent resi- 214(l) of the Immigration and Nation- dent of a country which the Secretary ality Act (8 U.S.C. 1184). of State, pursuant to regulations pre- (3) Except in the case of an alien who scribed by him, had designated as is a graduate of a foreign medical clearly requiring the services of per- school pursuing a program in graduate sons engaged in the field of specialized medical education or training, the Sec- knowledge or skill in which the alien retary of Homeland Security, upon the was engaged [See the most recent ‘‘Re- favorable recommendation of the Sec- vised Exchange Visitor Skills List’’, at retary of State, may also waive such http://exchanges.state.gov/education/ two-year foreign residence requirement jexchanges/participation/skillsllist.pdf]; in any case in which the foreign coun- or try of the alien’s nationality or last (iii) Who came to the United States legal permanent residence has fur- or acquired such status in order to re- nished the Secretary of State a state- ceive graduate medical education or ment in writing that it has no objec- training, shall be eligible to apply for tion to such waiver in the case of such an immigrant visa, or for permanent alien. Notwithstanding the foregoing,

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an alien who is a graduate of a foreign the exchange visitors’ sponsors con- medical school pursuing a program in cerning the waiver application. Except graduate medical education or training as set forth in paragraph (g)(4) of this may obtain a waiver of such two-year section, the recommendation of the foreign residence requirements if said Waiver Review Division shall con- alien meets the requirements of sec- stitute the recommendation of the De- tion 214(l) of the Immigration and Na- partment of State. tionality Act (8 U.S.C. 1184) and para- (iii) With respect to those cases in graphs (a) (2) and (e) of this section. which the Secretary of DHS has deter- (b) Request for waiver on the basis of mined that compliance with the two- exceptional hardship or probable persecu- year home-country residence and phys- tion on account of race, religion, or political presence requirement would sub- ical opinion. (1) An exchange visitor ject the exchange visitor to persecu- who seeks a waiver of the two-year tion on account of race, religion, or po- home-country residence and physical litical opinion, the Waiver Review Di- presence requirement on the grounds that such requirement would impose vision shall review the program, policy, exceptional hardship upon the ex- and foreign relations aspects of the change visitor’s spouse or child (if such case, including consultation if deemed spouse or child is a citizen of the appropriate with the Bureau of Human United States or a legal permanent Rights and Humanitarian Affairs of the resident alien), or on the grounds that United States Department of State, such requirement would subject the ex- make a recommendation, and forward change visitor to persecution on ac- such recommendation to the Secretary count of race, religion, or political of DHS. Except as set forth in para- opinion, shall submit the application graph (g)(4) of this section, the rec- for waiver (DHS Form I–612) to the ju- ommendation of the Waiver Review Di- risdictional office of the Department of vision shall constitute the rec- Homeland Security. ommendation of the Department of (2)(i) If the Secretary of Homeland State and such recommendation shall Security (Secretary of DHS) deter- be forwarded to DHS. mines that compliance with the two- (c) Requests for waiver made by an in- year home-country residence and phys- terested United States Government De- ical presence requirement would im- partment of State. (1) A United States pose exceptional hardship upon the Government agency may request a spouse or child of the exchange visitor, waiver of the two-year home-country or would subject the exchange visitor residence and physical presence re- to persecution on account of race, reli- quirement on behalf of an exchange gion, or political opinion, the Sec- visitor if such exchange visitor is ac- retary of DHS shall transmit a copy of tively and substantially involved in a his determination together with a sum- program or activity sponsored by or of mary of the details of the expected interest to such agency. hardship or persecution, to the Waiver (2) A United States Government Review Division, in the Department of State’s Bureau of Consular Affairs. agency requesting a waiver shall sub- (ii) With respect to those cases in mit its request in writing and fully ex- which the Secretary of DHS has deter- plain why the grant of such waiver re- mined that compliance with the two- quest would be in the public interest year home-country residence and phys- and the detrimental effect that would ical presence requirement would im- result to the program or activity of in- pose exceptional hardship upon the terest to the requesting agency if the spouse or child of the exchange visitor, exchange visitor is unable to continue the Waiver Review Division shall re- his or her involvement with the pro- view the program, policy, and foreign gram or activity. relations aspects of the case, make a (3) A request by a United States Gov- recommendation, and forward it to the ernment agency shall be signed by the appropriate office at DHS. If it deems head of the agency, or his or her des- it appropriate, the Waiver Review Divi- ignee, and shall include copies of all sion may request the views of each of IAP 66 or DS–2019 forms issued to the

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exchange visitor, his or her current ad- designation (assigned by the Secretary dress, and his or her country of nation- of Health and Human Services), and ality or last legal permanent residence. shall include the FIPS county code and (4) A request by a United States Gov- census tract or block numbering area ernment agency, excepting the Depart- number (assigned by the Bureau of the ment of Veterans Affairs, on behalf of Census) or the 9-digit zipcode of the an exchange visitor who is a foreign area where the facility is located. medical graduate who entered the (iii) A statement, signed and dated by United States to pursue graduate med- the foreign medical graduate exchange ical education or training, and who is visitor that shall read as follows: willing to provide primary care or spe- I, llllllllll (name of exchange cialty medicine in a designated pri- visitor) hereby declare and certify, under mary care Health Professional short- penalty of the provisions of 18 U.S.C. 1001, age Area, or a Medically Underserved that I do not now have pending nor am I sub- Area, or psychiatric care in a Mental mitting during the pendency of this request, Health Professional Shortage Area, another request to any United States Gov- shall, in additional to the requirement ernment department or agency or any State Department of Public Health, or equivalent, set forth in paragraphs (c)(2) and (3) of other than llllllllll (insert name this section, include: of United States Government Agency re- (i) A copy of the employment con- questing waiver) to act on my behalf in any tract between the foreign medical matter relating to a waiver of my two-year graduate and the health care facility at home-country physical presence require- which he or she will be employed. Such ment. contract shall specify a term of em- (iv) Evidence that unsuccessful ef- ployment of not less than three years forts have been made to recruit an and that the foreign medical graduate American physician for the position to is to be employed by the facility for be filled. the purpose of providing not less than (5) Except as set forth in paragraph 40 hours per week of primary medical (g)(4) of this section, the recommenda- care, i.e., general or family practice, tion of the Waiver Review Division general internal medicine, pediatrics, shall constitute the recommendation of or obstetrics and gynecology, in a des- the Department of State and such rec- ignated primary care Health Profes- ommendation shall be forwarded to the sional Shortage Area or designated Secretary of DHS. Medically Underserved Area (‘‘MUA’’) (d) Requests for waiver made on the or psychiatric care in a designated basis of a statement from the exchange Mental Health Professional Shortage visitor’s home-country that it has no ob- Area. Further, such employment con- jection to the waiver. (1) Applications for tract shall not include a non-compete waiver of the two-year home-country clause enforceable against the foreign residence and physical presence re- medical graduate. quirement may be supported by a (ii) A statement, signed and dated by statement of no objection by the ex- the head of the health care facility at change visitor’s country of nationality which the foreign medical graduate or last legal permanent residence. The will be employed, that the facility is statement of no objection shall be di- located in an area designated by the rected to the Secretary of State Secretary of Health and Human Serv- through diplomatic channels; i.e., from ices as a Medically Underserved Area the country’s Foreign Office to the De- or Primary Medical Care Health Pro- partment of State through the U.S. fessional Shortage Area or Mental Mission in the foreign country con- Health Professional Shortage Area and cerned, or through the foreign coun- provides medical care to both Medicaid try’s head of mission or duly appointed or Medicare eligible patients and indi- designee in the United States to the gent uninsured patients. The state- Secretary of State in the form of a dip- ment shall also list the primary care lomatic note. This note shall include Health Professional Shortage Area, applicant’s full name, date and place of Mental Health Professional Shortage birth, and present address. If deemed Area, or Medically Underserved Area/ appropriate, the Department of State Population identifier number of the may request the views of each of the

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exchange visitor’s sponsors concerning form set forth in paragraph (d) of this the waiver application. section and, additionally, shall bear a (2) The Waiver Review Division shall notation that it is being furnished pur- review the program, policy, and foreign suant to Public Law 103–416. relations aspects of the case and for- (3) The State Department of Public ward its recommendation to the Sec- Health, or equivalent agency, shall in- retary of DHS. Except as set forth in clude in the waiver application the fol- § 41.63(g)(4), infra, the recommendation lowing: of the Waiver Review Division shall (i) A completed DS–3035. Copies of constitute the recommendation of the these forms may be obtained from the Department of State. Visa Office or online at http:// (3) An exchange visitor who is a grad- www.travel.state.gov. uate of a foreign medical school and (ii) A letter from the Director of the who is pursuing a program in graduate designated State Department of Public medical education or training in the Health, or its equivalent, which identi- United States is prohibited under sec- fies the foreign medical graduate by tion 212(e) of the Immigration and Na- name, country of nationality or coun- tionality Act from applying for a waiv- try of last legal permanent residence, er solely on the basis of no objection and date of birth, and states that it is from his or her country of nationality in the public interest that a waiver of or last legal permanent residence. How- the two-year home residence require- ever, an alien who is a graduate of a ment be granted; foreign medical school pursuing a pro- (iii) An employment contract be- gram in graduate medical education or tween the foreign medical graduate and training may obtain a waiver of such the health care facility named in the two-year foreign residence require- waiver application, to include the ments if said alien meets the require- name and address of the health care fa- ments of section 214(l) of the Immigra- cility, and the specific geographical tion and Nationality Act (8 U.S.C. 1184) area or areas in which the foreign med- and paragraphs (a)(2) and (e) of this ical graduate will practice medicine. section. The employment contract shall include (e) Requests for waiver from a State De- a statement by the foreign medical partment of Public Health, or its equiva- graduate that he or she agrees to meet lent, on the basis of Public Law 103–416. the requirements set forth in section (1) Pursuant to Public Law 103–416, in 214(l) of the Immigration and Nation- the case of an alien who is a graduate ality Act. The term of the employment of a medical school pursuing a program contract shall be at least three years in graduate medical education or train- and the geographical areas of employing, a request for a waiver of the two- ment shall only be in areas, within the year home-country residence and phys- respective state, designated by the Sec- ical presence requirement may be made retary of Health and Human Services by a State department of Public as having a shortage of health care pro- Health, or its equivalent. Such waiver fessionals, unless the waiver request is shall be subject to the requirements of for an alien who will practice medicine section 214(l) of the Immigration and in a facility that serves patients who Nationality Act (8 U.S.C. 1194(l)) and reside in one or more geographic areas this § 41.63. so designated by the Secretary of (2) With respect to such waiver under Health and Human Services without re- Public Law 104–416, if such alien is con- gard to whether such facility is located tractually obligated to return to his or within such a designated geographic her home country upon completion of area. For the latter situation, which the graduate medical education or will be referred to as ‘‘non-designated training, the Secretary of State is to requests’’, the contract should also be furnished with a statement in writ- state that the term of the employment ing that the country to which such contract shall be at least three years alien is required to return has no objec- and employment shall only be in a fa- tion to such waiver. The no objection cility that serves patients who reside statement shall be furnished to the in one or more geographic areas so de- Secretary of State in the manner and signed by the Secretary of Health and

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Human Services as having a shortage gation to inform the Department of of health care professionals. Homeland Security of changed cir- (iv) Evidence establishing that the cumstances material to his or her geographic area or areas in the state in pending application. which the foreign medical graduate (g) The Waiver Review Board. (1) The will practice medicine or where pa- Waiver Review Board (‘‘Board’’) shall tients who will be served by the foreign consist of the following persons or medical graduates reside, are areas their designees: which have been designated by the Sec- (i) The Principal Deputy Assistant retary of Health and Human Services Secretary of the Bureau of Consular as having a shortage of health care pro- Affairs; fessionals. For purposes of this para- (ii) The Director of Office of Public graph, the geographic area or areas Affairs for the Bureau of Consular Af- must be designated by the Department fairs; of Health and Human Services as a (iii) The Legislative Management Of- Health Professional Shortage Area ficer for Consular Affairs, Bureau of (‘‘HPSA’’) or as a Medically Under- Legislative Affairs; served Area/Medically Underserved (iv) The Director of the Office of Ex- Population (‘‘MUA/MUP’’). change Coordination and Designation (v) Copies of all forms IAP 66 or DS– in the Bureau of Educational and Cul- 2019 issued to the foreign medical grad- tural Affairs; and uate seeking the waiver; (v) The Director of the Office of Pol- (vi) A copy of the foreign medical icy and Evaluation in the Bureau of graduate’s curriculum vitae; Educational and Cultural Affairs. (vii) If the foreign medical graduate (2) A person who has had substantial is otherwise contractually required to prior involvement in a particular case return to his or her home country at referred to the Board may not be ap- the conclusion of the graduate medical pointed to, or serve on, the Board for education or training, a copy of the that particular case unless the Bureau statement of no objection from the for- of Consular Affairs determines that the eign medical graduate’s country of na- individual’s inclusion on the Board is tionality or last residence; and, otherwise necessary or practicably un- (viii) Because of the numerical limi- avoidable. tations on the approval of waivers (3) The Principal Deputy Assistant under Public Law 103–416, i.e., no more Secretary of Consular Affairs, or his or than the maximum number of waivers her designee, shall serve as Board for each State each fiscal year as man- Chairman. No designee under this para- dated by law, each application from a graph (g)(3) shall serve for more than 2 State Department of Public Health, or years. its equivalent, shall be numbered se- (4) Cases will be referred to the Board quentially, beginning on October 1 of at the discretion of the Chief, Waiver each year. The ‘‘non-designated’’ re- Review Division, of the Visa Office. quests will also be numbered sequen- The Chief, Waiver Review Division, or tially with appropriate identifier. his or her designee may, at the Chair- (4) The Waiver Review Division shall man’s discretion, appear and present review the program, policy, and foreign facts related to the case but shall not relations aspects of the case and for- participate in Board deliberations. ward its recommendation to the Sec- (5) The Chairman of the Board shall retary of DHS. Except as set forth in be responsible for convening the Board paragraph (g)(4) of this section, the rec- and distributing all necessary informa- ommendation of the Waiver Review Di- tion to its members. Upon being con- vision shall constitute the rec- vened, the Board shall review the case ommendation of the Department of file and weigh the request against the State. program, policy, and foreign relations (f) Changed circumstances. An appli- aspects of the case. cant for a waiver on the grounds of ex- (6) The Bureau of Consular Affairs ceptional hardship or probable persecu- shall appoint, on a case-by-case basis, tion on account of race, religion, or po- from among the attorneys in the State litical opinion, has a continuing obli- Department’s Office of Legal Advisor

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one attorney to serve as legal advisor the United Nations, to whom a visa is to the Board. to be issued for the purpose of applying (7) At the conclusion of its review of for admission solely in transit to the the case, the Board shall make a writ- United Nations Headquarters District, ten recommendation either to grant or may upon request or at the direction of to deny the waiver application. The the Secretary of State be issued a non- written recommendation of a majority immigrant visa bearing the symbol C– of the Board shall constitute the rec- 2. If such a visa is issued, the recipient ommendation of the Board. Such rec- shall be subject to such restrictions on ommendation shall be promptly trans- travel within the United States as may mitted by the Chairman to the Chief, be provided in regulations prescribed Waiver Review Division. by the Secretary of Homeland Secu- (8) At the conclusion of its review of rity. the case, the Board shall make a written recommendation either to grant or Subpart I—Fiance(e)s and Other to deny the waiver application. The Nonimmigrants written recommendation of a majority of the Board shall constitute the rec- § 41.81 Fiance´(e) or spouse of a U.S. ommendation of the Board. Such rec- citizen and derivative children. ommendation shall be promptly trans- (a) Fiance´(e). An alien is classifiable mitted by the Chairman to the Chief, as a nonimmigrant fiance´(e) under INA Waiver Review Division. 101(a)(15)(K)(i) if: [58 FR 15196, Mar. 19, 1993; 58 FR 18305, Apr. (1) The consular officer is satisfied 8, 1993; 58 FR 48448, Sept. 16, 1993; 60 FR 16787, that the alien is qualified under that 16788, April 3, 1995; 60 FR 53125, Oct. 12, 1995; provision and the consular officer has 62 FR 19222, Apr. 21, 1997; 62 FR 28803, May 28, received a petition filed by a U.S. cit- 1997. Redesignated and amended at 64 FR izen to confer nonimmigrant status as 54539, 54540, Oct. 7, 1999; 67 FR 77160, Dec. 17, a fiance´(e) on the alien, which has been 2002; 72 FR 10061, Mar. 7, 2007] approved by the DHS under INA 214(d), or a notification of such approval from Subpart H—Transit Aliens that Service; (2) The consular officer has received § 41.71 Transit aliens. from the alien the alien’s sworn state- (a) Transit aliens—general. An alien is ment of ability and intent to conclude classifiable as a nonimmigrant transit a valid marriage with the petitioner alien under INA 101(a) (15) (C) if the within 90 days of arrival in the United consular officer is satisfied that the States; and alien: (3) The alien has met all other quali- (1) Intends to pass in immediate and fications in order to receive a non- continuous transit through the United immigrant visa, including the require- States; ments of paragraph (d) of this section. (2) Is in possession of a common car- (b) Spouse. An alien is classifiable as rier ticket or other evidence of trans- a nonimmigrant spouse under INA portation arrangements to the alien’s 101(a)(15)(K)(ii) when all of the fol- destination; lowing requirements are met: (3) Is in possession of sufficient funds (1) The consular officer is satisfied to carry out the purpose of the transit that the alien is qualified under that journey, or has sufficient funds other- provision and the consular officer has wise available for that purpose; and received a petition approved by the (4) Has permission to enter some DHS pursuant to INA 214(p)(1), that country other than the United States was filed by the U.S. citizen spouse of following the transit through the the alien in the United States. United States, unless the alien submits (2) If the alien’s marriage to the U.S. satisfactory evidence that such ad- citizen was contracted outside of the vance permission is not required. United States, the alien is applying in (b) Certain aliens in transit to United the country in which the marriage Nations. An alien within the provisions took place, or if there is no consular of paragraph (3), (4), or (5) of section 11 post in that country, then at a con- of the Headquarters Agreement with sular post designated by the Deputy

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Assistant Secretary of State for Visa retary of State and the DHS have cer- Services to accept immigrant visa ap- tified that the alien is accorded such plications for nationals of that coun- classification; try. (ii) and the alien is granted an INA (3) If the marriage was contracted in 212(d)(1) waiver of any INA 212(a) the United States, the alien is applying ground of ineligibility known at the in a country as provided in part 42, time of verification. § 42.61 of this chapter. (b) Certification of S visa status. The (4) The alien otherwise has met all certification of status under INA applicable requirements in order to re- 101(a)(15)(S)(i) by the Secretary of ceive a nonimmigrant visa, including Homeland Security or of status under the requirements of paragraph (d) of this section. INA 101(a)(15)(S)(ii) by the Secretary of (c) Child. An alien is classifiable State and the Secretary of Homeland under INA 101(a)(15)(K)(iii) if: Security acting jointly does not estab- (1) The consular officer is satisfied lish that the alien is eligible to receive that the alien is the child of an alien a nonimmigrant visa. classified under INA 101(a)(15)(K)(i) or (c) Validity of visa. The period of va- (ii) and is accompanying or following lidity of a visa authorized on the basis to join the principal alien; and of paragraph (a) of this section shall (2) The alien otherwise has met all not exceed the period indicated in the other applicable requirements in order certification required in paragraph (b) to receive a nonimmigrant visa, includ- and shall not in any case exceed the pe- ing the requirements of paragraph (d) riod of three years. of this section. (d) Eligibility as an immigrant required. [61 FR 1838, Jan. 24, 1996, as amended at 71 The consular officer, insofar as is prac- FR 34521, June 15, 2006] ticable, must determine the eligibility § 41.84 Victims of trafficking in per- of an alien to receive a nonimmigrant sons. visa under paragraphs (a), (b) or (c) of this section as if the alien were an ap- (a) Eligibility. An alien may be classi- plicant for an immigrant visa, except fiable as a parent, spouse or child that the alien must be exempt from the under INA 101(a)(15)(T)(ii) if: vaccination requirement of INA (1) The consular officer is satisfied 212(a)(1) and the labor certification re- that the alien has the required rela- quirement of INA 212(a)(5). tionship to an alien who has been [66 FR 19393, Apr. 16, 2001] granted status by the Secretary for Homeland Security under INA § 41.82 Certain parents and children of 101(a)(15)(T)(i); section 101(a)(27)(I) special immi- (2) The consular officer is satisfied grants. [Reserved] that the alien is otherwise admissible under the immigration laws of the § 41.83 Certain witnesses and informants. United States; and (3) The consular officer has received (a) General. An alien shall be classifi- an DHS-approved I–914, Supplement A, able under the provisions of INA evidencing that the alien is the spouse, 101(a)(15)(S) if: (1) The consular officer is satisfied child, or parent of an alien who has that the alien qualifies under the pro- been granted status under INA visions of that section; and 101(a)(15)(T)(i). (2)(i) The consular officer has re- (b) Visa validity. A qualifying family ceived verification from the Depart- member may apply for a nonimmigrant ment of State, Visa Office, that: visa under INA(a)(15)(T)(ii) only during (A) in the case of INA 101(a)(15)(S)(i) the period in which the principal appli- the DHS has certified that the alien is cant is in status under INA accorded such classification, or 101(a)(15)(T)(i). Any visa issued pursu- (B) in the case of INA 101(a)(15)(S)(ii) ant to such application shall be valid the Assistant Secretary of State for only for a period of three years or until Consular Affairs on behalf of the Sec- the expiration of the principal alien’s

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status as an alien classified under INA (d) Place of application. Notwith- 101(a)(15)(T)(i), whichever is shorter. standing the requirements of § 41.101, in determining the place of application [68 FR 37964, June 26, 2003] for an alien seeking a visa pursuant to § 41.86 Certain spouses and children of INA 101(a)(15)(V) the requirements of lawful permanent resident aliens. part 42, §§ 42.61(a) and (b)(1) of this chapter will apply. (a) Definition of ‘‘remains pending’’. For the purposes of this section, a visa [66 FR 19393, Apr. 16, 2001] application ‘‘remains pending’’ if the applicant has applied for an immigrant Subpart J—Application for visa in accordance with the definition Nonimmigrant Visa in part 40, § 40.1(l)(2) and the visa has neither been issued, nor refused for any § 41.101 Place of application. reason under applicable law and regula- (a) Application for regular visa made at tion. jurisdictional consular office of alien’s (b) Entitlement to classification. A con- residence or physical presence. (1) An sular officer may classify an alien as a alien applying for a nonimmigrant visa nonimmigrant under INA 101(a)(15)(V) shall make application at a consular if: office having jurisdiction over the (1) The consular officer has received alien’s place of residence, or if the notification from the Department of alien is a resident of Taiwan, at the State or the Department of Justice American Institute in Taiwan, unless— that a petition to accord status to the (i) The alien is physically present in alien as a spouse or child pursuant to the United States and is entitled to INA 203(a)(2)(A) was filed on or before apply for issuance or reissuance of a December 21, 2000; or visa under the provisions of § 41.111(b); (2) The alien is eligible to derive ben- or efits pursuant to INA 203(d) as a child (ii) A consular office having jurisdic- of an alien described in paragraph (b)(1) tion over the area in which the alien is of this section and such alien has quali- physically present but not resident has fied for V classification; and agreed, as a matter of discretion or at (3) It has been three years or more the direction of the Department, to ac- since the filing date of the petition de- cept the alien’s application; or scribed in paragraph (b)(1) of this sec- (iii) The alien is subject to INA 222(g) tion and applicable to paragraph (b)(2) and must apply as set forth in para- of this section and either: graph (b) or (c) of this section. (i) The petition has not been ap- (2) The Deputy Assistant Secretary proved; or of State for Visa Services is authorized (ii) If it has been approved, either no to designate the geographical area for immigrant visa number is immediately which each consular office possesses ju- available or the alien’s application for risdiction to process nonimmigrant adjustment of status or the alien’s ap- visa applications. plication for a visa remains pending. (b) Place of application for persons sub- (c) Eligibility as an immigrant required. ject to INA 222(g). Notwithstanding the The consular officer, insofar as prac- requirements of paragraph (a) of this ticable, must determine the eligibility section, an alien whose prior non- of an alien described in paragraph (b) of immigrant visa has been voided pursu- this section to receive a nonimmigrant ant to INA 222(g), who is applying for a visa under INA 101(a)(15)(V), other than new nonimmigrant visa, shall make ap- an alien who previously has been plication at a consular office which has granted V status in the United States jurisdiction in or for the country of the by DHS, as if the alien were an appli- alien’s nationality unless extraor- cant for an immigrant visa, except that dinary circumstances have been deter- the alien is exempt from the vaccina- mined to exist with respect to that tion requirement of INA 212(a)(1), the alien as set forth in paragraph (c) of labor certification requirement of INA this section. 212(a)(5) and the unlawful presence in- (c) Exceptions based on extraordinary eligibility of INA 212(a)(9)(B). circumstances. (1) An alien physician

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serving in underserved areas of the national of the country which issued United States under the provisions of the alien’s travel document. INA 214(l) for whom an application for (e) Regular visa defined. ‘‘Regular a waiver of the 2-year foreign residence visa’’ means a nonimmigrant visa of requirement and/or a petition to accord any classification which does not bear H–1B status was filed prior to the end the title ‘‘Diplomatic’’ or ‘‘Official.’’ A of the alien’s authorized period of stay nonimmigrant visa is issued as a reg- and was subsequently approved, but ular visa unless the alien falls within whose authorized stay expired during one of the classes entitled to a diplo- the adjudication of such application(s), matic or an official visa as described in shall make application in accordance § 41.26(c) or § 41.27(c). with paragraph (a) of this section. (f) Q–2 nonimmigrant visas. The Amer- (2) Any other individual or group ican Consulate General at Belfast is whose circumstances are determined to designated to accept applications for be extraordinary, in accordance with the Q–2 visa from residents of the geo- paragraph (d)(1) of this section, by the graphic area of Northern Ireland. The Deputy Assistant Secretary for Visa American Embassy at Dublin is des- Services upon the favorable rec- ignated to accept applications for Q–2 ommendation of an immigration or visas from residents of the geographic consular officer, shall make applica- area of the counties of Louth, tion in accordance with paragraph (a) Monaghan, Cavan, Leitrim, Sligo, and of this section. Donegal in the Republic of Ireland. (3) An alien who has, or immediately Notwithstanding any other provision of prior to the alien’s last entry into the this section, an applicant for a Q–2 visa United States had, a residence in a may not apply at any other consular country other than the country of the post. Consular officers at the Consulate alien’s nationality shall apply at a con- General at Belfast and at the Embassy sular office with jurisdiction in or for at Dublin have discretion to accept ap- the country of residence. plications for Q–2 visas from aliens who (4) An alien who is a national and are resident in a qualifying geographic resident of a country in which there is area outside of their respective con- no United States consular office shall sular districts, but who are physically apply at a consular office designated by present in their consular district. the Deputy Assistant Secretary for [52 FR 42597, Nov. 5, 1987; 53 FR 9112, Mar. 21, Visa Services to accept immigrant visa 1988, as amended at 61 FR 1522, Jan. 22, 1996; applications from persons of that na- 61 FR 53058, Oct. 10, 1996; 61 FR 56439, Nov. 1, tionality. 1996; 63 FR 671, Jan. 7, 1998; 63 FR 36366, July (5) An alien who possesses more than 6, 1998; 65 FR 14771, Mar. 17, 2000; 66 FR 38542, one nationality and who has, or imme- July 25, 2001; 67 FR 66046, Oct. 30, 2002] diately prior to the alien’s last entry into the United States had, a residence § 41.102 Personal appearance of appli- in one of the countries of the alien’s cant. nationality shall apply at a consular (a) Personal appearance before a con- office in the country of such residence. sular officer is required except as oth- (d) Definitions relevant to INA 222(g). erwise provided in this section. Except (1) Extraordinary circumstances—Ex- when the requirement of personal ap- traordinary circumstances may be pearance has been waived pursuant to found where compelling humanitarian paragraph (b) or (c) of this section, or national interests exist or where each applicant for a nonimmigrant visa necessary for the effective administra- must personally appear before and be tion of the immigration laws. Extraor- interviewed by a consular officer, who dinary circumstances shall not be shall determine on the basis of the ap- found upon the basis of convenience or plicant’s representations, the visa ap- financial burden to the alien, the plication and other relevant docu- alien’s relative, or the alien’s em- mentation: ployer. (1) The proper nonimmigrant classi- (2) Nationality—For purposes of fication, if any, of the alien; and paragraph (b) of this section, a state- (2) The alien’s eligibility to receive a less person shall be considered to be a visa.

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(b) Waivers of personal appearance by (1) Any NIV applicant who is not a consular officers. Except as provided in national or resident of the country in paragraph (d) of this section or as oth- which he or she is applying, unless the erwise instructed by the Deputy Assist- applicant is eligible for a waiver of the ant Secretary of State for Visa Serv- interview under paragraphs (b)(3) or ices, a consular officer may waive the (b)(4) of this section. requirement of personal appearance in (2) Any NIV applicant who was pre- the case of any alien who the consular viously refused a visa, is listed in officer concludes presents no national CLASS, or who otherwise requires a security concerns requiring an inter- Security Advisory Opinion, unless: view and who: (i) The visa was refused temporarily (1) Is a child under 14 years of age; and the refusal was subsequently over- (2) Is a person over 79 years of age; come; (ii) The alien was found inadmissible, (3) Is within a class of non- but the inadmissibility was waived; or immigrants classifiable under the visa (iii) The applicant is eligible for a symbols A–1, A–2, C–2, C–3 (except at- waiver of the interview under para- tendants, servants, or personal employ- graphs (b)(3) or (b)(4) of this section. ees of accredited officials), G–1, G–2, G– (3) Any NIV applicant who is from a 3, G–4, NATO–1, NATO–2, NATO–3, country designated by the Secretary of NATO–4, NATO–5, or NATO–6 and who State as a state sponsor of terrorism, is seeking a visa in such classification; regardless of age, or in a group des- (4) Is an applicant for a diplomatic or ignated by the Secretary of State official visa as described in §§ 41.26 or under section 222(h)(2)(F) of the Immi- 41.27 of this chapter, respectively; gration and Nationality Act, unless the (5) Is an applicant who within 12 applicant is eligible for a waiver under months of the expiration of the appli- paragraphs (b)(3) or (b)(4) of this sec- cant’s previously issued visa is seeking tion. re-issuance of a nonimmigrant biomet- (e) Unusual circumstances. As used in ric visa in the same classification at this section, unusual circumstances the consular post of the applicant’s shall include, but not be limited to, an usual residence, and for whom the con- emergency or unusual hardship. sular officer has no indication of visa [68 FR 40128, July 7, 2003, as amended at 71 ineligibility or of noncompliance with FR 75663, Dec. 18, 2006] U.S. immigration laws and regulations; or § 41.103 Filing an application. (6) Is an alien for whom a waiver of (a) Filing an application—(1) Filing of personal appearance is warranted in application required. Every alien seek- the national interest or because of un- ing a nonimmigrant visa must make an usual circumstances. electronic application on Form DS–160 (c) Waivers of personal appearance by or, as directed by a consular officer, an the Deputy Assistant Secretary of State. application on Form DS–156. The Form Except as provided in paragraph (d) of DS–160 must be signed electronically this section, the Deputy Assistant Sec- by clicking the box designated ‘‘Sign retary for Visa Services may waive the Application’’ in the certification sec- personal appearance before a consular tion of the application. officer of an individual applicant or a (2) Filing of an electronic application class of applicants if the Deputy As- (Form DS–160) or Form DS–156 by alien sistant Secretary finds that the waiver under 16 or physically incapable. The ap- of personal appearance is warranted in plication for an alien under 16 years of the national interest or because of un- age or one physically incapable of com- usual circumstances and that national pleting an application may be com- security concerns do not require an pleted and executed by the alien’s par- interview. ent or guardian, or if the alien has no (d) Cases in which personal appearance parent or guardian, by any person hav- may not be waived. A consular officer or ing legal custody of, or a legitimate in- the Deputy Assistant Secretary of terest in, the alien. State may not waive personal appear- (3) Waiver of filing of application when ance for: personal appearance is waived. Even if

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personal appearance of a visa applicant to a national passport or to a single is waived pursuant to 22 CFR 41.102, the document. A passport may consist of requirement for filing an application is two or more documents which, when not waived. considered together, fulfill the require- (b) Application—(1) Preparation of ments of a passport, provided that the Electronic Nonimmigrant Visa Application documentary evidence of permission to (Form DS–160) or, alternatively, Form DS– enter a foreign country has been issued 156. The consular officer shall ensure by a competent authority and clearly that the application is fully and prop- meets the requirements of INA erly completed in accordance with the 101(a)(30). applicable regulations and instruc- (b) Passport requirement. Except for tions. certain persons in the A, C–3, G, and (2) Additional requirements and infor- NATO classifications and persons for mation as part of application. Applicants whom the passport requirement has who are required to appear for a per- been waived pursuant to the provisions sonal interview must provide a biomet- of INA 212(d)(4), every applicant for a ric, which will serve to authenticate nonimmigrant visa is required to identity and additionally verify the ac- present a passport, as defined above curacy and truthfulness of the state- and in INA 101(a)(30), which is valid for ments in the application at the time of the period required by INA interview. The consular officer may re- 212(a)(7)(B)(i)(I). quire the submission of additional nec- (c) A single passport including more essary information or question an alien than one person. The passport require- on any relevant matter whenever the ment for a nonimmigrant visa may be consular officer believes that the infor- met by the presentation of a passport mation provided in the application is including more than one person, if such inadequate to permit a determination inclusion is authorized under the laws of the alien’s eligibility to receive a or regulations of the issuing authority nonimmigrant visa. Additional state- and if a photograph of each visa appli- ments made by the alien become a part cant 16 years of age or over has been of the visa application. All documents attached to the passport by the issuing required by the consular officer under authority. the authority of § 41.105(a) are consid- (d) Applicants for diplomatic visas. ered papers submitted with the alien’s Every applicant for a diplomatic visa application within the meaning of INA must present a diplomatic passport, or 221(g)(1). the equivalent thereof, having the pe- (3) Signature. The Form DS–160 shall riod of validity required by INA be signed electronically by clicking the 212(a)(7)(B)(i)(I), unless such require- box designated ‘‘Sign Application’’ in ment has been waived pursuant to the the certification section of the applica- authority contained in INA 212(d)(4) or tion. This electronic signature attests unless the case falls within the provi- to the applicant’s familiarity with and sions of § 41.21(b). intent to be bound by all statements in the NIV application under penalty of [52 FR 42597, Nov. 5, 1987, as amended at 56 perjury. Alternatively, except as pro- FR 30428, July 2, 1991; 61 FR 1522, Jan. 22, vided in paragraph (a)(2) of this sec- 1996; 61 FR 53058, Oct. 10, 1996; 66 FR 38543, July 25, 2001; 67 FR 66046, Oct. 30, 2002] tion, the Form DS–156 shall be signed by the applicant, with intent to be § 41.105 Supporting documents and bound by all statement in the NIV ap- fingerprinting. plication under penalty of perjury. (a) Supporting documents—(1) Author- (4) Registration. The Form DS–160 or ity to require documents. The consular the Form DS–156, when duly executed, officer is authorized to require docu- constitutes the alien’s registration for ments considered necessary to estab- the purposes of INA 221(b). lish the alien’s eligibility to receive a [73 FR 23068, Apr. 29, 2008] nonimmigrant visa. All documents and other evidence presented by the alien, § 41.104 Passport requirements. including briefs submitted by attor- (a) Passports defined. ‘‘Passport’’ as neys or other representatives, shall be defined in INA 101(a)(30) is not limited considered by the consular officer.

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(2) Unobtainable documents. If the con- processed in accordance with the appli- sular officer is satisfied that a docu- cable regulations and instructions. ment or record required under the au- [73 FR 23069, Apr. 29, 2008] thority of this section is unobtainable, the consular officer may accept satis- § 41.107 Visa fees. factory alternative pertinent evidence. (a) Fees based on reciprocity. The fees A document or other record shall be for the issuance of visas, including offi- considered unobtainable if it cannot be cial visas, to nonimmigrant nationals procured without causing the applicant or stateless residents of each foreign or a member of the applicant’s family country shall be collected in the actual hardship as distinct from nor- amounts prescribed by the Secretary of mal delay and inconvenience. State unless, on the basis of reci- (3) Photographs required. Every appli- procity, no fee is chargeable. If prac- cant for a nonimmigrant visa must fur- ticable, fees will correspond to the nish a photograph in such numbers as total amount of all visa, entry, resi- the consular officer may require. Pho- dence, or other similar fees, taxes or tographs must be a reasonable like- charges assessed or levied against na- 1 1 ness, 1 ⁄2 by 1 ⁄2 inches in size, tionals of the United States by the for- unmounted, and showing a full, front- eign countries of which such non- face view of the applicant against a immigrants are nationals or stateless light background. At the discretion of residents. the consular officer, head coverings (b) Fees when more than one alien in- may be permitted provided they do not cluded in visa. A single nonimmigrant interfere with the full, front-face view visa may be issued to include all eligi- of the applicant. The applicant must ble family members if the spouse and sign (full name) on the reverse side of unmarried minor children of a prin- the photographs. The consular officer cipal alien are included in one pass- may use a previously submitted photo- port. Each alien must execute a sepa- graph, if he is satisfied that it bears a rate application. The name of each reasonable likeness to the applicant. family member shall be inserted in the (4) Police certificates. A police certifi- space provided in the visa stamp. The cate is a certification by the police or visa fee to be collected shall equal the other appropriate authorities stating total of the fees prescribed by the Sec- what, if anything, their records show retary of State for each alien included concerning the alien. An applicant for in the visa, unless upon a basis of reci- a nonimmigrant visa is required to procity a lesser fee is chargeable. present a police certificate if the con- (c) Certain aliens exempted from fees. sular officer has reason to believe that (1) Upon a basis of reciprocity, or as a police or criminal record exists, ex- provided in section 13(a) of the Head- cept that no police certificate is re- quarters Agreement with the United quired in the case of an alien who is Nations (61 Stat. 716; 22 U.S.C. 287, within a class of nonimmigrants classi- Note), no fee shall be collected for the fiable under visa symbols A–1, A–2, C–3, application for or issuance of a non- G–1 through G–4, NATO–1 through immigrant visa to an alien who is with- NATO–4 or NATO–6. in a class of nonimmigrants classifi- (b) Fingerprinting. Every applicant for able under the visa symbols A, G, C–2, a nonimmigrant visa must furnish fin- C–3, or NATO, or B–1 issued for partici- gerprints, as required by the consular pation in an official observer mission officer. to the United Nations, or who is issued [52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, a diplomatic visa as defined in § 41.26. Mar. 21, 1988, as amended at 61 FR 1522, Jan. (2) The consular officer shall waive 22, 1996; 61 FR 53058, Oct. 10, 1996; 64 FR 13510, the nonimmigrant visa application and Mar. 19, 1999; 67 FR 8478, Feb. 25, 2002; 72 FR issuance fees for an alien who will be 74175, Dec. 31, 2007; 73 FR 49092, Aug. 20, 2008] engaging in charitable activities for a charitable organization upon the writ- § 41.106 Processing. ten request of the charitable organiza- Consular officers must ensure that tion claiming that it will find the fees the Form DS–160 or, alternatively, a financial burden, if the consular offi- Form DS–156 is properly and promptly cer is satisfied that:

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(i) The organization seeking relief by the Secretary of State from such ap- from the fees is, if based in the United plicants as the Secretary of State shall States, tax-exempt as a charitable or- designate. Such surcharge is refundable ganization under the provisions of sec- only if, as a result of action taken by tion 501(c)(3) of the Internal Revenue the U.S. Goverment for which the alien Code (26 U.S.C. 501(c)(3)); if a foreign was not responsible and over which the organization based outside the United alien had no control, the alien’s appli- States in a country having laws ac- cation is not processed. cording recognition to charitable insti- (2) Notwithstanding paragraph (e)(1) tutions, that it establishes that it is of this section, a consular officer shall recognized as a charitable institution collect or insure the collection of a by that government; and if a foreign processing fee for a machine-readable organization based in a country with- combined border crossing card and non- out such laws, that it is engaged in ac- immigrant visa in an amount deter- tivities substantially similar to those mined by the Secretary and set forth in underlying section 501(c)(3), and 22 CFR 22.1 to be sufficient only to (ii) The charitable activities in which cover the cost for manufacturing the the alien will engage are specified and combined card and visa if: will be a part of, or will be related to (i) The alien is a Mexican citizen and in support of, the organization’s under the age of 15; provision of services, including but not (ii) The alien is applying in Mexico; limited to health care, food and hous- and ing, job training, and similar direct (iii) The alien has at least one parent services and assistance to the poor and or guardian who has a visa or is apply- needy, and ing for a machine-readable combined (iii) The request includes the loca- border crossing card and visa. tion of the proposed activities, the [52 FR 42597, Nov. 5, 1987, as amended at 59 number and identifying data of each of FR 25325, May 16, 1994; 63 FR 24108, May 1, the alien(s) who will be applying for 1998; 63 FR 52970, Oct. 2, 1998; 65 FR 52307, visas, and Aug. 29, 2000; 66 FR 17511, Apr. 2, 2001; 66 FR (iv) The proposed duration of the 38543, July 25, 2001; 67 FR 38893, June 6, 2002; alien(s)’s temporary stay in the United 67 FR 66046, Oct. 30, 2002] States is reasonably consistent with the charitable purpose for which the § 41.108 Medical examination. alien(s) seek to enter the United (a) Requirements for medical examina- States. tion. An applicant for a nonimmigrant (3) Foreign national employees of the visa shall be required to take a medical U. S. Government who are travelling to examination if: the United States on official business (1) The alien is an applicant for a K in connection with that employment. nonimmigrant visa as a fiance(e) of a (d) Refund of fees. A fee collected for U.S. citizen or as the child of such an the issuance of a nonimmigrant visa is applicant; or, refundable only if the principal officer (2) The alien is seeking admission for at a post or the officer in charge of a medical treatment and the consular of- consular section determines that the ficer considers a medical examination visa was issued in error or could not be advisable; or, used as a result of action taken by the (3) The consular officer has reason to U.S. Government for which the alien believe that a medical examination was not responsible and over which the might disclose that the alien is medi- alien had no control. cally ineligible to receive a visa. (e)(1) Visa processing surcharge. In ad- (b) Examination by panel physician. dition to the collection of the fee pre- The required examination, which must scribed in paragraph (a) of this section, be carried out in accordance with a consular officer shall collect or en- United States Public Health Service sure the collection of a surcharge for regulations, shall be conducted by a the processing of applications for ma- physician selected by the alien from a chine readable nonimmigrant visas and panel of physicians approved by the for machine readable combined border consular officer or, if the alien is in the crossing cards in the amount specified United States, by a medical officer of

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the United States Public Health Serv- (i) Are currently maintaining status ice or by a contract physician from a in the E, H, I, L, O, or P nonimmigrant list of physicians approved by the DHS category; for the examination of INA 245 adjust- (ii) Intend to reenter the United ment of status applicants. States in that status after a temporary (c) Panel physician facility require- absence abroad; and ments. A consular officer may not in- (iii) Who also present evidence that: clude the name of a physician on the (A) They were previously issued visas panel of physicians referred to in para- at a consular office abroad and admit- graph (b) of this section unless the phy- ted to the United States in the status sician has facilities to perform re- which they are currently maintaining; and quired serological and X-ray tests or is (B) Their period of authorized admis- in a position to refer applicants to a sion in that status has not expired. qualified laboratory for such tests. [52 FR 42597, Nov. 5, 1987, as amended at 66 Subpart K—Issuance of FR 12738, Feb. 28, 2001] Nonimmigrant Visa § 41.112 Validity of visa. (a) Significance of period of validity of § 41.111 Authority to issue visa. visa. The period of validity of a non- (a) Issuance outside the United States. immigrant visa is the period during Any consular officer is authorized to which the alien may use it in making issue regular and official visas. Diplo- application for admission. The period matic visas may be issued only by: of visa validity has no relation to the (1) A consular officer attached to a period of time the immigration au- U.S. diplomatic mission, if authorized thorities at a port of entry may au- to do so by the Chief of Mission; or thorize the alien to stay in the United (2) A consular officer assigned to a States. consular office under the jurisdiction (b) Validity of visa and number of ap- of a diplomatic mission, if so author- plications for admission. (1) Except as ized by the Department or the Chief, provided in paragraphs (c) and (d) of Deputy Chief, or Counselor for Con- this section, a nonimmigrant visa shall sular Affairs of that mission, or, if as- have the validity prescribed in sched- signed to a consular post not under the ules provided to consular officers by jurisdiction of a diplomatic mission, by the Department, reflecting insofar as the principal officer of that post. practicable the reciprocal treatment (b) Issuance in the United States in cer- accorded U.S. nationals, U.S. perma- tain cases. The Deputy Assistant Sec- nent residents, or aliens granted ref- retary for Visa Services and such offi- ugee status in the U.S. by the govern- cers of the Department as the former ment of the country of which the alien may designate are authorized, in their is a national, permanent resident, ref- discretion, to issue nonimmigrant ugee or stateless resident. (2) Notwithstanding paragraph (b)(1) visas, including diplomatic visas, to: of this section, United States non- (1) Qualified aliens who are currently immigrant visas shall have a maximum maintaining status and are properly validity period of 10 years. classifiable in the A, C–2, C–3, G or (3) An unexpired visa is valid for ap- NATO category and intend to reenter plication for admission even if the the United States in that status after a passport in which the visa is stamped temporary absence abroad and who has expired, provided the alien is also also present evidence that: in possession of a valid passport issued (i) They have been lawfully admitted by the authorities of the country of in that status or have, after admission, which the alien is a national. had their classification changed to that (c) Limitation on validity. If warranted status; and in an individual case, a consular officer (ii) Their period of authorized stay in may issue a nonimmigrant visa for: the United States in that status has (1) A period of validity that is less not expired; and than that prescribed on a basis of reci- (2) Other qualified aliens who: procity,

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(2) A number of applications for ad- companying spouse or child meeting mission within the period of the valid- the stipulations of paragraph (d)(2)(i) ity of the visa that is less than that of this section, after an absence not ex- prescribed on a basis of reciprocity, ceeding 30 days in contiguous territory (3) Application for admission at a or adjacent islands other than Cuba; specified port or at specified ports of (iii) Has maintained and intends to entry, or resume nonimmigrant status; (4) Use on and after a given date sub- (iv) Is applying for readmission with- sequent to the date of issuance. in the authorized period of initial ad- (d) Automatic extension of validity at mission or extension of stay; ports of entry. (1) Provided that the re- (v) Is in possession of a valid pass- quirements set out in paragraph (d)(2) port; of this section are fully met, the fol- (vi) Does not require authorization lowing provisions apply to non- for admission under INA 212(d)(3); and immigrant aliens seeking readmission (vii) Has not applied for a new visa at ports of entry: while abroad. (i) The validity of an expired non- (3) The provisions in paragraphs (d)(1) immigrant visa issued under INA and (d)(2) of this section shall not 101(a)(15) may be considered to be auto- apply to the nationals of countries matically extended to the date of ap- identified as supporting terrorism in plication for readmission; and the Department’s annual report to (ii) In cases where the original non- Congress entitled Patterns of Global immigrant classification of an alien Terrorism. has been changed by DHS to another nonimmigrant classification, the valid- [52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, ity of an expired or unexpired non- Mar. 21, 1988, as amended at 55 FR 36028, Oct. immigrant visa may be considered to 31, 1990; 62 FR 24332, May 5, 1997; 66 FR 38543, be automatically extended to the date July 25, 2001; 67 FR 10323, Mar. 7, 2002; 67 FR 66046, Oct. 30, 2002] of application for readmission, and the visa may be converted as necessary to § 41.113 Procedures in issuing visas. that changed classification. (2) The provisions in paragraph (d)(1) (a) Visa evidenced by stamp placed in of this section are applicable only in passport. Except as provided in para- the case of a nonimmigrant alien who: graphs (b) of this section, a non- (i) Is in possession of a Form I–94, Ar- immigrant visa shall be evidenced by a rival-Departure Record, endorsed by visa stamp placed in the alien’s pass- DHS to show an unexpired period of port. The appropriate symbol as pre- initial admission or extension of stay, scribed in 41.12 , showing the classifica- or, in the case of a qualified F or J stu- tion of the alien, shall be entered on dent or exchange visitor or the accom- the visa. panying spouse or child of such an (b) Cases in which visa not placed in alien, is in possession of a current passport. In the following cases the visa Form I–20, Certificate of Eligibility for shall be placed on the prescribed Form Nonimmigrant Student Status, or DS–232. In issuing such a visa, a nota- Form IAP-66, Certificate of Eligibility tion shall be made on the Form DS–232 for Exchange Visitor Status, issued by on which the visa is placed specifying the school the student has been author- the pertinent subparagraph of this ized to attend by DHS, or by the spon- paragraph under which the action is sor of the exchange program in which taken. the alien has been authorized to par- (1) The alien’s passport was issued by ticipate by DHS, and endorsed by the a government with which the United issuing school official or program spon- States does not have formal diplomatic sor to indicate the period of initial ad- relations, unless the Department has mission or extension of stay authorized specifically authorized the placing of by DHS; the visa in such passport; (ii) Is applying for readmission after (2) The alien’s passport does not pro- an absence not exceeding 30 days solely vide sufficient space for the visa; in contiguous territory, or, in the case (3) The passport requirement has of a student or exchange visitor or ac- been waived; or

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(4) In other cases as authorized by field. In cases where there is insuffi- the Department. cient room to list the ports of entry, (c) Visa stamp. A machine-readable they shall be listed by hand on a clean nonimmigrant visa foil, or other indi- passport page. Reference shall be made cia as directed by the Department, in the visa’s annotation field citing the shall constitute a visa ‘‘stamp,’’ and passport page upon which the ports are shall be in a format designated by the listed. Department, and contain, at a min- (g) Delivery of visa. In issuing a non- imum, the following data: immigrant visa, the consular officer (1) Full name of the applicant; should deliver the visaed passport, or (2) Visa type/class; the prescribed Form DS–232, which (3) Location of the visa issuing office; bears the visa, to the alien or to the (4) Passport number; alien’s authorized representative. Any (5) Sex; evidence furnished by the alien in ac- (6) Date of birth; cordance with 41.103(b) should be re- (7) Nationality; tained in the consular files, along with (8) Number of applications for admis- Form DS–156, if received. sion or the letter ‘‘M’’ for multiple en- (h) Disposition of supporting docu- tries; ments. Original supporting documents (9) Date of issuance; furnished by the alien should be re- (10) Date of expiration; turned for presentation, if necessary, (11) Visa control number. to the immigration authorities at the (d) Insertion of name; petition and deport of entry. Duplicate copies may be rivative status notation. (1) The surname retained in the consular files or and given name of the visa recipient scanned into the consular system. shall be shown on the visa in the space (i) Nonimmigrant visa issuances provided. must be reviewed, in accordance with (2) If the visa is being issued upon the guidance by the Secretary of State, by basis of a petition approved by the Sec- consular supervisors, or a designated retary of Homeland Security, the num- alternate, to ensure compliance with ber of the petition, if any, the period applicable laws and procedures. Visa for which the alien’s admission has issuances must be reviewed without been authorized, and the name of the delay; that is, on the day of issuance or petitioner shall be reflected in the an- as soon as is administratively possible. notation field on the visa. If the reviewing officer disagrees with (3) In the case of an alien who derives the decision and he or she has a con- status from a principal alien, the name sular commission and title, the review- and position of the principal alien shall ing officer may assume responsibility be reflected in the annotation field of and readjudicate the case. If the re- the visa. viewing officer does not have a con- (e) Period of validity. If a non- sular commission and title, he or she immigrant visa is issued for an unlim- must consult with the adjudicating of- ited number of applications for admis- ficer, or with the Visa Office, to resolve sion within the period of validity, the any disagreement. letter ‘‘M’’ shall be shown under the word ‘‘entries’’. Otherwise the number [52 FR 42597, Nov. 5, 1987, as amended at 56 of permitted applications for admission FR 30428, July 2, 1991; 61 FR 1523, Jan. 22, shall be identified numerically. The 1996; 61 FR 1836, Jan. 24, 1996; 61 FR 53058, date of issuance and the date of expira- Oct. 10, 1996; 62 FR 24334, May 5, 1997; 66 FR 38543, July 25, 2001; 67 FR 66046, Oct. 30, 2002; tion of the visa shall be shown at the 71 FR 34522, June 15, 2006; 71 FR 50338, Aug. appropriate places in the visa by day, 25, 2006; 73 FR 23069, Apr. 29, 2008] month and year in that order. The standard three letter abbreviation for the month shall be used in all cases. Subpart L—Refusals and (f) Restriction to specified port of entry. Revocations If a nonimmigrant visa is valid for admission only at one or more specified § 41.121 Refusal of individual visas. ports of entry, the names of those ports (a) Grounds for refusal. Nonimmigrant shall be entered in the annotation visa refusals must be based on legal

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grounds, such as one or more provi- (c) Nonimmigrant refusals must be sions of INA 212(a), INA 212(e), INA reviewed, in accordance with guidance 214(b), (f) or (l) (as added by Section 625 by the Secretary of State, by consular of Pub. L. 104–208), INA 221(g), or INA supervisors, or a designated alternate, 222(g) or other applicable law. Certain to ensure compliance with laws and classes of nonimmigrant aliens are ex- procedures. If the ground(s) of ineligi- empted from specific provisions of INA bility upon which the visa was refused 212(a) under INA 102 and, upon a basis cannot be overcome by the presen- of reciprocity, under INA 212(d)(8). tation of additional evidence, the re- When a visa application has been prop- fusal must be reviewed without delay; erly completed and executed in accord- that is, on the day of the refusal or as ance with the provisions of INA and soon as it is administratively possible. the implementing regulations, the con- If the ground(s) of ineligibility may be sular officer must either issue or refuse overcome by the presentation of addi- the visa. tional evidence, and the applicant has indicated the intention to submit such (b) Refusal procedure. (1) When a con- evidence, a review of the refusal may sular officer knows or has reason to be- be deferred for not more than 120 days. lieve a visa applicant is ineligible and If the reviewing officer disagrees with refuses the issuance of a visa, he or she the decision and he or she has a con- must inform the alien of the ground(s) sular commission and title, the review- of ineligibility (unless disclosure is ing officer can assume responsibility barred under INA 212(b)(2) or (3)) and and readjudicate the case. If the re- whether there is, in law or regulations, viewing officer does not have a con- a mechanism (such as a waiver) to sular commission and title, he or she overcome the refusal. The officer shall must consult with the adjudicating of- note the reason for the refusal on the ficer, or with the Visa Office, to resolve application. Upon refusing the non- any disagreement. immigrant visa, the consular officer (d) Review of refusal by Department. shall retain the original of each docu- The Department may request a con- ment upon which the refusal was based, sular officer in a specific case or in as well as each document indicating a specified classes of cases to submit a possible ground of ineligibility, and report if a visa has been refused. The should return all other supporting doc- Department will review each report uments supplied by the applicant. and may furnish an advisory opinion to (2) If an alien, who has not yet filed the consular officer for assistance in a visa application, seeks advice from a considering the case further. If the offi- consular officer, who knows or has rea- cer believes that action contrary to an son to believe that the alien is ineli- advisory opinion should be taken, the gible to receive a visa on grounds case shall be resubmitted to the De- which cannot be overcome by the pres- partment with an explanation of the entation of additional evidence, the of- proposed action. Rulings of the Depart- ficer shall so inform the alien. The con- ment concerning an interpretation of sular officer shall inform the applicant law, as distinguished from an applica- of the provision of law or regulations tion of the law to the facts, shall be upon which a refusal of a visa, if ap- binding upon consular officers. plied for, would be based (subject to the [52 FR 42597, Nov. 5, 1987, as amended at 56 exception in paragraph (b)(1) of this FR 30428, July 2, 1991; 63 FR 671, Jan. 7, 1998; section). If practicable, the consular of- 66 FR 10364, Feb. 15, 2001; 71 FR 50339, Aug. 25, ficer should request the alien to exe- 2006] cute a nonimmigrant visa application in order to make a formal refusal. If § 41.122 Revocation of visas. the individual fails to execute a visa (a) Grounds for revocation by consular application in these circumstances, the officers. A consular officer is authorized consular officer shall treat the matter to revoke a nonimmigrant visa issued as if a visa had been refused and create to an alien if: a record of the presumed ineligibility (1) The officer finds that the alien which shall be filed in the consular of- was not, or has ceased to be, entitled to fice. the nonimmigrant classification under

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INA 101(a)(15) specified in the visa or (e) Notice to Department. When a visa that the alien was at the time the visa is revoked under paragraph (a)(1) or (2) was issued, or has since become, ineli- of this section, the consular officer gible under INA 212(a) to receive a visa, shall promptly submit notice of the or was issued a visa in contravention of revocation, including a full report on INA 222(g) the facts in the case, to the Depart- (2) The visa has been physically re- ment for transmission to DHS. A removed from the passport in which it port is not required if the visa is phys- was issued prior to the alien’s embar- ically canceled prior to the alien’s de- kation upon a continuous voyage to parture for the United States except in the United States; or cases involving A, G, C–2, C–3, NATO, (3) For any of the reasons specified in diplomatic or official visas. paragraph (h) of this section if the visa (f) Record of action. Upon revocation has not been revoked by an immigra- of a nonimmigrant visa under para- tion officer as authorized in that paragraph (a)(1) or (2) of this section, the graph. consular officer shall complete for the (4) The visa has been issued in a com- post files a Certificate of Revocation bined Mexican or Canadian B–1/B–2 visa by Consular Officer which includes a and border crossing identification card statement of the reasons for the rev- and the officer makes the determina- ocation. If the revocation is effected at other than the issuing office, a copy of tion specified in § 41.32(c) with respect the Certificate of Revocation shall be to the alien’s Mexican citizenship and/ sent to that office. or residence or the determination spec- (g) Reconsideration of revocation. (1) ified in § 41.33(b) with respect to the The consular office shall consider any alien’s status as a permanent resident evidence submitted by the alien or the of Canada. alien’s attorney or representative in (b) Notice of proposed revocation. When connection with a request that the rev- consideration is being given to the revocation be reconsidered. If the officer ocation of a nonimmigrant visa under finds that the evidence is sufficient to paragraph (a)(1) or (2) of this section, overcome the basis for the revocation, the consular officer considering that a new visa shall be issued. A memo- action shall, if practicable, notify the randum regarding the action taken and alien to whom the visa was issued of the reasons therefor shall be placed in intention to revoke the visa. The alien the consular files and appropriate noti- shall also be given an opportunity to fication shall be made promptly to the show why the visa should not be re- carriers concerned, the Department, voked and requested to present the and the issuing office if notice of rev- travel document in which the visa was ocation has been given in accordance originally issued. with paragraphs (d), (e), and (f) of this (c) Procedure for physically cancelling section. visas. A nonimmigrant visa which is re- (2) In view of the provisions of voked shall be canceled by writing or § 41.107(d) providing for the refund of stamping the word ‘‘REVOKED’’ plain- fees when a visa has not been used as a ly across the face of the visa. The can- result of action by the U.S. Govern- cellation shall be dated and signed by ment, a fee shall not be charged in con- the officer taking the action. The fail- nection with a reinstated visa. ure of the alien to present the visa for (h) Revocation of visa by immigration cancellation does not affect the valid- officer. An immigration officer is au- ity of action taken to revoke it. thorized to revoke a valid visa by phys- (d) Notice to carriers. Notice of revoca- ically canceling it in accordance with tion shall be given to the master, air- the procedure prescribed in paragraph craft captain, agent, owner, charterer, (c) of this section if: or consignee of the carrier or transpor- (1) The alien obtains an immigrant tation line on which it is believed the visa or an adjustment of status to that alien intends to travel to the United of permanent resident; States, unless the visa has been phys- (2) The alien is ordered excluded from ically canceled as provided in para- the United States pursuant to INA graph (c) of this section. 235(c) or 236;

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(3) The alien is notified pursuant to Subpart B—Classification and Foreign State INA 235(b) by an immigration officer at Chargeability a port of entry that the alien appears 42.11 Classification symbols. to be inadmissible to the United States 42.12 Rules of chargeability. and the alien requests and is granted permission to withdraw the application Subpart C—Immigrants Not Subject to for admission; Numerical Limitations of INA 201 and 202 (4) A final order of deportation or a final order granting voluntary depar- 42.21 Immediate relatives. 42.22 Returning resident aliens. ture with an alternate order of depor- 42.23 Certain former U.S. citizens. tation is entered against the alien pur- 42.24 Adoption under the Hague Convention suant to DHS regulations; on Protection of Children and Co-oper- (5) The alien has been permitted by ation in Respect of Intercountry Adop- DHS to depart voluntarily from the tion and the Intercountry Adoption Act United States pursuant to DHS regula- of 2000. tions; Subpart D—Immigrants Subject to (6) A waiver of ineligibility pursuant Numerical Limitations to INA 212(d)(3)(A) on the basis of which the visa was issued to the alien 42.31 Family-sponsored immigrants. is revoked by DHS; 42.32 Employment-based preference immigrants. (7) The visa is presented in connec- 42.33 Diversity immigrants. tion with an application for admission to the United States by a person other Subpart E—Petitions than the alien to whom it was issued; or 42.41 Effect of approved petition. 42.42 Petitions for immediate relative or (8) The visa has been physically re- preference status. moved from the passport in which it 42.43 Suspension or termination of action in was issued. petition cases. (9) The visa has been issued in a combined Mexican or Canadian B–1/B–2 visa Subpart F—Numerical Controls and Priority and border crossing identification card Dates and the officer makes the determina- 42.51 Department control of numerical limi- tion specified in § 41.32(c) with respect tations. to the alien’s Mexican citizenship and/ 42.52 Post records of visa applications. or residence or the determination spec- 42.53 Priority date of individual applicants. ified in § 41.33(b) with respect to the 42.54 Order of consideration. alien’s status as a permanent resident 42.55 Reports on numbers and priority dates of applications on record. of Canada. [52 FR 42597, Nov. 5, 1987, as amended at 63 Subpart G—Application for Immigrant FR 16895, Apr. 7, 1998; 66 FR 10364, Feb. 15, Visas 2001; 66 FR 38544, July 25, 2001; 67 FR 66046, 42.61 Place of application. Oct. 30, 2002] 42.62 Personal appearance and interview of applicant. PART 42—VISAS: DOCUMENTATION 42.63 Definitions. OF IMMIGRANTS UNDER THE IM- 42.64 Passport requirements. 42.65 Supporting documents. MIGRATION AND NATIONALITY 42.66 Medical examination. ACT, AS AMENDED 42.67 Execution of application, registration, and fingerprinting. Subpart A—Visa and Passport Not 42.68 Informal evaluation of family mem- Required for Certain Immigrants bers if principal applicant precedes them.

Sec. Subpart H—Issuance of Immigrant Visas 42.1 Aliens not required to obtain immi- 42.71 Authority to issue visas; visa fees. grant visas. 42.72 Validity of visas. 42.2 Aliens not required to present pass- 42.73 Procedure in issuing visas. ports. 42.74 Issuance of new or replacement visas.

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Subpart I—Refusal, Revocation, and sion during the period of validity of the Termination of Registration visa issued to the parent. (e) Child born of a national or lawful 42.81 Procedure in refusing individual visas. permanent resident mother during her 42.82 Revocation of visas. 42.83 Termination of registration. temporary visit abroad. An alien child born during the temporary visit abroad AUTHORITY: 8 U.S.C. 1104 and 1182; Pub. L. of a mother who is a national or lawful 105–277; Pub. L. 108–449; 112 Stat. 2681–795 permanent resident of the United through 2681–801; The Convention on Protec- tion of Children and Co-operation in Respect States if applying for admission within of Intercountry Adoption (done at the 2 years of birth and accompanied by ei- Hague, May 29, 1993), S. Treaty Doc. 105–51 ther parent applying and eligible for (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); readmission as a permanent resident The Intercountry Adoption Act of 2000, 42 upon that parent’s first return to the U.S.C. 14901–14954, Pub. L. 106–279. United States after the child’s birth. SOURCE: 52 FR 42613, Nov. 5, 1987, unless (f) American Indians born in Canada. otherwise noted. An American Indian born in Canada EDITORIAL NOTE: Nomenclature changes to and having at least 50 per centum of part 42 appear at 71 FR 34522, June 15, 2006. blood of the American Indian race.

§ 42.2 Aliens not required to present Subpart A—Visa and Passport Not passports. Required for Certain Immigrants An immigrant within any of the fol- § 42.1 Aliens not required to obtain im- lowing categories is not required to migrant visas. present a passport in applying for an An immigrant within any of the fol- immigrant visa: lowing categories is not required to ob- (a) Certain relatives of U.S. citizens. An tain an immigrant visa: alien who is the spouse, unmarried son (a) Aliens lawfully admitted for perma- or daughter, or parent, of a U.S. cit- nent residence. An alien who has pre- izen, unless the alien is applying for a viously been lawfully admitted for per- visa in the country of which the appli- manent residence and who is not re- cant is a national and the possession of quired under the regulations of the De- a passport is required for departure. partment of Homeland Security to (b) Returning aliens previously lawfully present a valid immigrant visa upon re- admitted for permanent residence. An turning to the United States. alien previously lawfully admitted for (b) Alien members of U.S. Armed Forces. permanent residence who is returning An alien member of the U.S. Armed from a temporary visit abroad, unless Forces bearing military identification, the alien is applying for a visa in the who has previously been lawfully ad- country of which the applicant is a na- mitted for permanent residence and is tional and the possession of a passport coming to the United States under offi- is required for departure. cial orders or permit of those Armed (c) Certain relatives of aliens lawfully Forces. admitted for permanent residence. An (c) Aliens entering from Guam, Puerto alien who is the spouse, unmarried son Rico, or the Virgin Islands. An alien who or daughter, or parent of an alien law- has previously been lawfully admitted fully admitted for permanent resi- for permanent residence who seeks to dence, unless the alien is applying for a enter the continental United States or visa in the country of which the appli- any other place under the jurisdiction cant is a national and the possession of of the United States directly from a passport is required for departure. Guam, Puerto Rico, or the Virgin Is- (d) Stateless persons. An alien who is a lands of the United States. stateless person, and accompanying (d) Child born after issuance of visa to spouse and unmarried son or daughter. accompanying parent. An alien child (e) Nationals of Communist-controlled born after the issuance of an immi- countries. An alien who is a national of grant visa to an accompanying parent, a Communist-controlled country and who will arrive in the United States who is unable to obtain a passport from with the parent, and apply for admis- the government of that country, and

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accompanying spouse and unmarried waived by the Secretary of State, as son or daughter. evidence by a specific instruction from (f) Alien members of U.S. Armed Forces. the Department. An alien who is a member of the U.S. (2) An alien unable to obtain a pass- Armed Forces. port and not within any of the fore- (g) Beneficiaries of individual waivers. going categories, in whose case the (1) An alien who would be within one of passport requirement imposed by the categories described in paragraphs § 42.64(b) or by DHS regulations has (a) through (d) of this section except been waived by the Secretary of Home- that the alien is applying for a visa in land Security and the Secretary of a country of which the applicant is a State as evidenced by a specific in- national and possession of a passport is struction from the Department. required for departure, in whose case [52 FR 42613, Nov. 5, 1987, as amended at 56 the passport requirement has been FR 49680, Oct. 1, 1991]

Subpart B—Classification and Foreign State Chargeability

§ 42.11 Classification symbols. A visa issued to an immigrant alien within one of the classes described below shall bear an appropriate visa symbol to show the classification of the alien.

IMMIGRANTS

Symbol Class Section of law

Immediate Relatives

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. 201(b) & 101(b)(1)(G). Citizen. 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 Resident Status Under 201(b) & sec. 2 of the Virgin Islands the Virgin Islands Nonimmigrant Alien Adjustment Act. Nonimmigrant Alien Adjustment Act, (Pub. L. 97–271).

Vietnam Amerasian Immigrants

AM1 ...... Vietnam Amerasian Principal ...... 584(b)(1)(A) of the Foreign Oper- ations, Export Financing, and Re- lated 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 Fi- nancing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100–102) as amended. AM3 ...... Natural Mother of AM1 (and Spouse or Child of Such Mother) or Person 584(b)(1)(A) and 584(b)(1)(C) of the Who has Acted in Effect as the Mother, Father, or Next-of-Kin of AM1 Foreign Operations, Export Fi- (and Spouse or Child of Such Person). nancing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100–102) as amended.

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IMMIGRANTS—Continued

Symbol Class Section of law

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 Section 1059 of Pub. L. 109–163 as as Translators or Interpreters. amended by Pub. L. 110–36. SI2 ...... Spouse of SI1 ...... Section 1059 of 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 En- 101(a)(27)(K). listed to Serve in the U.S. Armed Forces for 12 Years. 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. Govern- Section 602(b), Division F, Title VI, ment. 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).

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IMMIGRANTS—Continued

Symbol Class Section of law

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 Bu- 101(a)(27)(M) & 203(b)(4). reau of the Broadcasting Board of Governors or a grantee of such organization. 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 101(a)(27)(D) & 203(b)(4). Abroad. 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 101(a)(27)(E) & 203 (b)(4). Zone Government. 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 101(a)(27)(F) & 203 (b)(4). Canal Zone. SG2 ...... Spouse or Child of SG1 ...... 101(a)(27)(F) & 203 (b)(4). SH1 ...... Certain Former Employees of the Panama Canal Company or Canal 101(a)(27)(G) & 203 (b)(4). Zone Government on April 1, 1979. SH2 ...... Spouse or Child of SH1 ...... 101(a)(27)(G) & 203(b)(4). SJ1 ...... Certain Foreign Medical Graduates (Adjustments Only) ...... 101(a)(27)(H).

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IMMIGRANTS—Continued

Symbol Class Section of law

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 101(a)(27)(I)(i) & 203(b)(4). Employee. SK4 ...... Certain Surviving Spouses of a deceased International Organization 101(a)(27)(I)(ii) & 203(b)(4). Employee. 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 Section 421 of Public Law 107–56. 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. 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 Depart- ments 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 Appropria- tions 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 Appropria- tions Act, 1993 (Pub. L. 102– 395), as amended. I51 ...... Investor Pilot Program, in Targeted Area ...... 203(b)(5) & Sec. 610 of the Depart- ments 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 Appropria- tions 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 Appropria- tions Act, 1993 (Pub. L. 102– 395), as amended.

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IMMIGRANTS—Continued

Symbol Class Section of law

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).

[74 FR 61521, Nov. 25, 2009]

§ 42.12 Rules of chargeability. (e) Exception for alien born in foreign (a) Applicability. An immigrant shall state in which neither parent was born or be charged to the numerical limitation had residence at time of alien’s birth. An for the foreign state or dependent area alien who was born in a foreign state, of birth, unless the case falls within as defined in § 40.1, in which neither one of the exceptions to the general parent was born, and in which neither rule of chargeability provided by INA parent had a residence at the time of 202(b) and paragraphs (b) through (e) of the applicant’s birth, may be charged this section to prevent the separation to the foreign state of either parent as of families or the alien is classifiable provided in INA 202(b)(4). The parents under: of such an alien are not considered as (1) INA 201(b); having acquired a residence within the (2) INA 101(a)(27) (A) or (B); meaning of INA 202(b)(4), if, at the time (3) Section 112 of Public Law 101–649; of the alien’s birth within the foreign (4) Section 124 of Public Law 101–649; state, the parents were visiting tempo- (5) Section 132 of Public Law 101–649; rarily or were stationed there in con- (6) Section 134 of Public Law 101–649; nection with the business or profession or and under orders or instructions of an (7) Section 584(b)(1) as contained in employer, principal, or superior au- section 101(e) of Public Law 100–202. thority foreign to such foreign state. (b) Exception for child. If necessary to [52 FR 42613, Nov. 5, 1987, as amended at 56 prevent the separation of a child from FR 49681, Oct. 1, 1991] the alien parent or parents, an immigrant child, including a child born in a Subpart C—Immigrants Not Sub- dependent area, may be charged to the same foreign state to which a parent is ject to Numerical Limitations chargeable if the child is accom- of INA 201 and 202 panying or following to join the parent, in accordance with INA 202(b)(1). SOURCE: 56 FR 49676, Oct. 1, 1991, unless (c) Exception for spouse. If necessary otherwise noted. to prevent the separation of husband and wife, an immigrant spouse, includ- § 42.21 Immediate relatives. ing a spouse born in a dependent area, (a) Entitlement to status. An alien who may be charged to a foreign state to is a spouse or child of a United States which a spouse is chargeable if accom- citizen, or a parent of a U.S. citizen at panying or following to join the spouse, least 21 years of age, shall be classified in accordance with INA 202(b)(2). as an immediate relative under INA (d) Exception for alien born in the 201(b) if the consular officer has re- United States. An immigrant who was ceived from DHS an approved Petition born in the United States shall be to Classify Status of Alien Relative for charged to the foreign state of which Issuance of an Immigrant Visa, filed on the immigrant is a citizen or subject. If the alien’s behalf by the U.S. citizen not a citizen or subject of any country, and approved in accordance with INA the alien shall be charged to the for- 204, and the officer is satisfied that the eign state of last residence as deter- alien has the relationship claimed in mined by the consular officer, in ac- the petition. An immediate relative cordance with INA 202(b)(3). shall be documented as such unless the

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U.S. citizen refuses to file the required mission for permanent residence or the petition, or unless the immediate rel- alien’s eligibility to receive an immi- ative is also a special immigrant under grant visa, only those records and doc- INA 101(a)(27) (A) or (B) and not subject uments required under INA 222(b) to any numerical limitation. which relate to the period of residence (b) Spouse of a deceased U.S. citizen. in the United States and the period of The spouse of a deceased U.S. citizen, the temporary visit abroad shall be re- and each child of the spouse, will be en- quired. If any required record or docu- titled to immediate relative status ment is unobtainable, the provisions of after the date of the citizen’s death § 42.65(d) shall apply. provided the spouse or child meets the (c) Returning resident alien originally criteria of INA 201(b)(2)(A)(i) or of sec- admitted under the Act of December 28, tion 423(a)(1) of Public Law 107–56 (USA 1945. An alien admitted into the United Patriot Act) and the Consular Officer States under Section 1 of the Act of has received an approved petition from December 28, 1945 (‘‘GI Brides Act’’) the DHS which accords such status, or shall not be refused an immigrant visa official notification of such approval, after a temporary absence abroad sole- and the Consular Officer is satisfied ly because of a mental or physical de- that the alien meets those criteria. fect or defects that existed at the time (c) Child of a U.S. citizen victim of ter- of the original admission. rorism. The child of a U.S. citizen slain in the terrorist actions of September [56 FR 49676, Oct. 1, 1991, as amended at 63 FR 11, 2001, shall retain the status of an 48578, Sept. 11, 1998] immediate relative child (regardless of changes in age or marital status) if the § 42.23 Certain former U.S. citizens. child files a petition for such status (a) Women expatriates. An alien within two years of the citizen’s death woman, regardless of marital status, pursuant to section 423(a)(2) of Public shall be classifiable as a special immi- Law 107–56, and the consular officer has grant under INA 101(a)(27)(B) if the received an approved petition accord- consular officer is satisfied by appro- ing such status or official notification priate evidence that she was formerly a of such approval. U.S. citizen and that she meets the re- [56 FR 49676, Oct. 1, 1991, as amended at 64 FR quirements of INA 324(a). 55419, Oct. 13, 1999; 67 FR 1415, Jan. 11, 2002] (b) Military expatriates. An alien shall be classifiable as a special immigrant § 42.22 Returning resident aliens. under INA 101(a)(27)(B) if the consular (a) Requirements for returning resident officer is satisfied by appropriate evi- status. An alien shall be classifiable as dence that the alien was formerly a a special immigrant under INA U.S. citizen and that the alien lost citi- 101(a)(27)(A) if the consular officer is zenship under the circumstances set satisfied from the evidence presented forth in INA 327. that: (1) The alien had the status of an § 42.24 Adoption under the Hague Con- alien lawfully admitted for permanent vention on Protection of Children residence at the time of departure from and Co-operation in Respect of the United States; Intercountry Adoption and the Intercountry Adoption Act of 2000. (2) The alien departed from the United States with the intention of re- (a) For purposes of this section, the turning and has not abandoned this in- definitions in 22 CFR 96.2 apply. tention; and (b) On or after the Convention effec- (3) The alien is returning to the tive date, as defined in 22 CFR 96.17, a United States from a temporary visit child habitually resident in a Conven- abroad and, if the stay abroad was pro- tion country who is adopted by a tracted, this was caused by reasons be- United States citizen deemed to be ha- yond the alien’s control and for which bitually resident in the United States the alien was not responsible. in accordance with applicable DHS reg- (b) Documentation needed. Unless the ulations must qualify for visa status consular officer has reason to question under the provisions of INA section the legality of the alien’s previous ad- 101(b)(1)(G) as provided in this section.

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Such a child shall not be accorded sta- and provisional approval of the peti- tus under INA section 101(b)(1)(F), pro- tion. If a petition for a child under INA vided that a child may be accorded sta- section 101(b)(1)(G) is received by a tus under INA section 101(b)(1)(F) if DHS officer, the consular officer will Form I–600A or I–600 was filed before conduct any reviews, determinations or the Convention effective date. Al- investigations requested by DHS with though this part 42 generally applies to regard to the petition and classifica- the issuance of immigrant visas, this tion determination in accordance with section 42.24 may also provide the basis applicable DHS procedures. for issuance of a nonimmigrant visa to (f) A petition shall be provisionally permit a Convention adoptee to travel approved by the consular officer if, in to the United States for purposes of accordance with applicable DHS re- naturalization under INA section 322. quirements, it appears that the child (c) The provisions of this section gov- will be classifiable under INA section ern the operations of consular officers 101(b)(1)(G) and that the proposed adop- in processing cases involving children for whom classification is sought under tion or grant of legal custody will be in INA section 101(b)(1)(G), unless the Sec- compliance with the Convention. If the retary of State has personally waived consular officer knows or has reason to any requirement of the IAA or these believe the petition is not provision- regulations in a particular case in the ally approvable, the consular officer interests of justice or to prevent grave shall forward it to DHS pursuant to 8 physical harm to the child, to the ex- CFR 204.313(i)(3). tent consistent with the Convention. (g) After a petition has been provi- (d) An alien child shall be classifiable sionally approved, a completed visa ap- under INA section 101(b)(1)(G) only if, plication form, any supporting docu- before the child is adopted or legal cus- ments required pursuant to § 42.63 and tody for the purpose of adoption is § 42.65, and any required fees must be granted, a petition for the child has submitted to the consular officer in ac- been received and provisionally ap- cordance with § 42.61 for a provisional proved by a DHS officer or, where au- review of visa eligibility. The require- thorized by DHS, by a consular officer, ments in §§ 42.62, 42.64, 42.66 and 42.67 and a visa application for the child has shall also be satisfied to the extent been received and annotated in accord- practicable. ance with paragraph (h) of this section (h) A consular officer shall provision- by a consular officer. No alien child ally determine visa eligibility based on shall be issued a visa pursuant to INA a review of the visa application, sub- section 101(b)(1)(G) unless the petition mitted supporting documents, and the and visa application are finally ap- provisionally approved petition. In so proved. doing, the consular officer shall follow (e) If a petition for a child under INA all procedures required to adjudicate section 101(b)(1)(G) is properly filed the visa to the extent possible in light with a consular officer, the consular of- of the degree of compliance with §§ 42.62 ficer will review the petition for the purpose of determining whether it can through 42.67. If it appears, based on be provisionally approved in accord- the available information, that the ance with applicable DHS require- child would not be ineligible under INA ments. If a properly completed applica- section 212 or other applicable law to tion for waiver of inadmissibility is re- receive a visa, the consular officer ceived by a consular officer at the shall so annotate the visa application. same time that a petition for a child If evidence of an ineligibility is discov- under INA section 101(b)(1)(G) is re- ered during the review of the visa ap- ceived, provisional approval cannot plication, and the ineligibility was not take place unless the waiver is ap- waived in conjunction with provisional proved, and therefore the consular offi- approval of the petition, the prospec- cer, pursuant to 8 CFR 204.313(i)(3) and tive adoptive parents shall be informed 8 CFR 212.7, will forward the petition of the ineligibility and given an oppor- and the waiver application to DHS for tunity to establish that it will be over- decisions as to approval of the waiver come. If the visa application cannot be

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annotated as described above, the con- (l) After the consular officer deter- sular officer shall deny the visa in ac- mines whether to issue the certificate cordance with § 42.81, regardless of described in paragraph (j) of this sec- whether the application has yet been tion, the consular officer shall finally executed in accordance with § 42.67(a); adjudicate the petition and visa appli- provided however that, in cases in cation in accordance with standard which a waiver may be available under procedures. the INA and the consular officer deter- (m) If the consular officer is unable mines that the visa application appears to give final approval to the visa appli- otherwise approvable, the consular offi- cation or the petition, then the con- cer shall inform the prospective adop- sular officer shall forward the petition tive parents of the procedure for apply- to DHS, pursuant to § 42.43 or 8 CFR ing to DHS for a waiver. If in addition 204.313(i)(3), as applicable, for appro- the consular officer comes to know or priate action in accordance with appli- have reason to believe that the petition cable DHS procedures, and/or refuse is not clearly approvable as provided in the visa application in accordance with 8 CFR 204.313(i)(3), the consular officer § 42.81. The consular officer shall notify shall forward the petition to DHS pur- the country of origin that the visa has suant to that section. been refused. (i) If the petition has been provision- [72 FR 61305, Oct. 30, 2007] ally approved and the visa application has been annotated in accordance with subparagraph (h), the consular officer Subpart D—Immigrants Subject to shall notify the country of origin that Numerical Limitations the steps required by Article 5 of the Convention have been taken. SOURCE: 56 FR 49676, Oct. 1, 1991, unless (j) After the consular officer has re- otherwise noted. ceived appropriate notification from the country of origin that the adoption § 42.31 Family-sponsored immigrants. or grant of legal custody has occurred (a) Entitlement to status. An alien and any remaining requirements estab- shall be classifiable as a family-spon- lished by DHS or §§ 42.61 through 42.67 sored immigrant under INA 203(a) (1), have been fulfilled, the consular offi- (2), (3) or (4) if the consular officer has cer, if satisfied that the requirements received from DHS a Petition to Clas- of the IAA and the Convention have sify Status of Alien Relative for been met with respect to the adoption Issuance of Immigrant Visa approved or grant of legal custody, shall affix to in accordance with INA 204 to accord the adoption decree or grant of legal the alien such preference status, or of- custody a certificate so indicating. ficial notification of such an approval, This certificate shall constitute the and the consular officer is satisfied certification required by IAA section that the alien has the relationship to 301(a) and INA section 204(d)(2). For the petitioner indicated in the peti- purposes of determining whether to tion. In the case of a petition according issue a certificate, the fact that a con- an alien status under INA 203(a) (1) or sular officer notified the country of or- (3) or status as an unmarried son or igin pursuant to paragraph (i) of this daughter under INA 203(a)(2), the peti- section that the steps required by Arti- tioner must be a ‘‘parent’’ as defined in cle 5 of the Convention had been taken INA 101(b)(2) and 22 CFR 40.1. In the and the fact that the country of origin case of a petition to accord an alien has provided appropriate notification status under INA 203(a)(4) filed on or that the adoption or grant of legal cus- after January 1, 1977, the petitioner tody has occurred shall together con- must be at least twenty-one years of stitute prima facie evidence of compli- age. ance with the Convention and the IAA. (b) Entitlement to derivative status. (k) If the consular officer is unable to Pursuant to INA 203(d), and whether or issue the certificate described in para- not named in the petition, the child of graph (j) of this section, the consular a family-sponsored first, second, third officer shall notify the country of ori- or fourth preference immigrant or the gin of the consular officer’s decision. spouse of a family-sponsored third or

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fourth preference immigrant, if not preference immigrant, if not otherwise otherwise entitled to an immigrant entitled to an immigrant status and status and the immediate issuance of a the immediate issuance of a visa, is en- visa, is entitled to a derivative status titled to a derivative status cor- corresponding to the classification and responding to the classification and priority date of the beneficiary of the priority date of the beneficiary of the petition. petition. [56 FR 49676, Oct. 1, 1991, as amended at 61 FR (c) Third preference—Skilled workers, 1836, Jan. 24, 1996] professionals, other workers—(1) Entitle- ment to status. An alien shall be classi- § 42.32 Employment-based preference fiable as an employment-based third immigrants. preference immigrant under INA Aliens subject to the worldwide level 203(b)(3) if the consular officer has re- specified in section 201(d) for employ- ceived from DHS a Petition for Immi- ment-based immigrants in a fiscal year grant Worker approved in accordance shall be allotted visas as indicated with INA 204 to accord the alien such below. preference status, or official notifica- (a) First preference—Priority workers— tion of such an approval, and the con- (1) Entitlement to status. An alien shall sular officer is satisfied that the alien be classifiable as an employment-based is within one of the classes described in first preference immigrant under INA INA 203(b)(3). 203(b)(1) if the consular office has re- (2) Entitlement to derivative status. ceived from DHS a Petition for Immi- Pursuant to INA 203(d), and whether or grant Worker approved in accordance not named in the petition, the child or with INA 204 to accord the alien such spouse of an employment-based third Preference status, or official notifica- preference immigrant, if not otherwise tion of such an approval, and the con- entitled to an immigrant status and sular officer is satisfied that the alien the immediate issuance of a visa, is en- is within one of the classes described in titled to a derivative status cor- INA 203(b)(1). responding to the classification and (2) Entitlement to derivative status. priority date of the beneficiary of the Pursuant to INA 203(d), and whether or petition. not named in the petition, the child or (d) Fourth preference—Special immi- spouse of an employment-based first preference immigrant, if not otherwise grants—(1) Religious workers—(i) Classi- entitled to an immigrant status and fication based on qualifications under the immediate issuance of a visa, is en- INA 101(A)(27)(C). An alien shall be titled to a derivative status cor- classifiable under INA 203(b)(4) as a responding to the classification and special immigrant described in INA priority date of the beneficiary of the 101(a)(27)(C) if: petition. (A) The consular officer has received (b) Second preference—Professionals a petition approved by DHS to accord with advanced degrees or persons of ex- such classification, or an official noti- ceptional ability—(1) Entitlement to sta- fication of such approval; and tus. An alien shall be classifiable as an (B) The consular officer is satisfied employment-based second preference from the evidence presented that the immigrant under INA 203(b)(2) if the alien qualifies under that section; or consular officer has received from DHS (C) The consular officer is satisfied a Petition for Immigrant Worker ap- the alien is the spouse or child of a re- proved in accordance with INA 204 to ligious worker so classified and is ac- accord the alien such preference status, companying or following to join the or official notification of such an ap- principal alien. proval, and the consular officer is sat- (ii) Timeliness of application. An immi- isfied that the alien is within one of grant visa issued under INA 203(b)(4) to the classes described in INA 203(b)(2). an alien described in INA 101(a)(27)(C), (2) Entitlement to derivative status. other than a minister of religion, who Pursuant to INA 203(d), and whether or qualifies as a ‘‘religious worker’’ as de- not named in the petition, the child or fined in 8 CFR 204.5, shall bear the spouse of an employment-based second usual validity except that in no case

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shall it be valid later than September year thereof, the alien has filed a peti- 30, 2003. tion for status under INA 203(b)(4) (2) Certain U.S. Government employ- which the Secretary has approved. ees—(i) General. (A) An alien is classifi- (B) An alien desiring to benefit from able under INA 203(b)(4) as a special im- this provision must seek such status migrant described in INA 101(a)(27)(D) not later than January 1, 2002. if a petition to accord such status has (C) For purposes of § 42.32(d)(2)(ii)(A), been approved by the Secretary of the term member of the immediate family State. An alien may file such a petition means the definition (as of November only after, but within one year of, noti- 29, 1990) in Volume 6 of the Foreign Af- fication from the Department that the fairs Manual, section 117k, of a relative Secretary of State has approved a rec- who has been living with the employee ommendation from the Principal Offi- in the same household. cer that special immigrant status be (iii) Priority date. The priority date of accorded the alien in exceptional cir- an alien seeking status under INA cumstances and has found it in the na- 203(b)(4) as a special immigrant de- tional interest so to do. scribed in INA 101(a)(27)(D) shall be the (B) An alien may qualify as a special date on which the petition to accord immigrant under INA 101(a)(27)(D) on such classification is filed. The filing the basis of employment abroad with date of the petition is that on which a more than one agency of the U.S. Gov- properly completed form and the re- ernment provided the total amount of quired fee are accepted by a Foreign full-time service with the U.S. Govern- Service post. ment is 15 years or more. (C) Pursuant to INA 203(d), and (iv) Petition validity. Except as noted whether or not named in the petition, in this paragraph, the validity of a pe- the spouse or child of an alien classi- tition approved for classification under fied under INA 203(b)(4), if not entitled INA 203(b)(4) shall be six months be- to an immigrant status and the imme- yond the date of the Secretary of diate issuance of a visa, is entitled to a State’s approval thereof or the avail- derivative status corresponding to the ability of a visa number, whichever is classification and priority date of the later. In cases described in beneficiary of the petition. § 42.32(d)(2)(ii), the validity of the peti- (ii) Special immigrant status for certain tion shall not in any case extend be- aliens employed at the United States mis- yond January 1, 2002. sion in Hong Kong. (A) An alien em- (v) Extension of petition validity. If the ployed at the United States Consulate principal officer of a post concludes General in Hong Kong under the au- that circumstances in a particular case thority of the Chief of Mission or an are such that an extension of the valid- alien employed pursuant to section 5913 ity of the Secretary’s approval of spe- of title 5 of the United States Code is cial immigrant status or of the peti- eligible for classification under INA tion would be in the national interest, 203(b)(4) as a special immigrant de- the principal officer shall recommend scribed in INA 101(a)(27)(D) provided: to the Secretary of State that such va- (1) The alien has performed faithfully lidity be extended for not more than for a total of three years or more; one additional year. (2) The alien is a member of the im- (vi) Fees. The Secretary of State shall mediate family of an employee entitled establish a fee for the filing of a peti- to such special immigrant status; and tion to accord status under INA (3) The welfare of the alien or the 203(b)(4) which shall be collected fol- family member is subject to clear lowing notification that the Secretary threat due directly to the employee’s has approved status as a special immi- employment with the United States grant under INA 101(a)(27)(D) for the Government or under a United States alien. Government official; and (vii) Delegation of authority to approve (4) Subsequent to the Secretary’s ap- petitions. The authority to approve pe- proval of the Principal Officer’s rec- titions to accord status under INA ommendation and finding it in the na- 203(b)(4) to an alien described in INA tional interest to do so, but within one 101(a)(27)(D) is hereby delegated to the

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chief consular officer at the post of rec- such classification, or official notifica- ommendation or, in the absence of the tion of such approval, and the consular consular officer, to any alternate ap- officer is satisfied from the evidence proving officer designated by the prin- presented that the alien is within one cipal officer. Such authority may not of the classes described therein. be exercised until the Foreign Service (ii) Timeliness of application. An alien post has received formal notification of accorded status under INA 203(b)(4) be- the Secretary’s approval of special im- cause of qualification under INA migrant status for the petitioning 101(a)(27)(I) or (L) must appear for the alien. final visa interview and issuance of the (3) Panama Canal employees—(i) Enti- immigrant visa within six months of tlement to status. An alien who is sub- establishing entitlement to status. ject to the numerical limitations speci- (6) Certain juvenile court dependents. fied in section 3201(c) of the Panama An alien shall be classifiable under INA Canal Act of 1979, Public Law 96–70, is 203(b)(4) as a special immigrant defined classifiable under INA 203(b)(4) as a in INA 101(a)(27)(J) if the consular offi- special immigrant described in INA cer has received from DHS an approved 101(a)(27) (E), (F) or (G) if the consular petition to accord such status, or an of- officer has received a petition approved ficial notification of such an approval, by DHS to accord such classification, and the consular officer is satisfied the or official notification of such an ap- alien is within the class described in proval, and the consular officer is sat- that section. isfied that the alien is within one of (7) Certain members of the United States the classes described in INA 101(a)(27) Armed Forces recruited abroad—(i) Enti- (E), (F), or (G). tlement to status. An alien is classifiable (ii) Entitlement to derivative status. under INA 203(b)(4) as a special immi- Pursuant to INA 203(d), and whether or grant described in INA 101(a)(27)(K) if not named in the petition, the spouse the consular office has received a peti- or child of any alien classified under tion approved by the DHS to accord INA 203(b)(4) as a special immigrant such classification, or official notifica- qualified under this section, if not oth- tion of such an approval, and the con- erwise entitled to an immigrant status sular officer is satisfied from the evi- and the immediate issuance of a visa, dence presented that the alien is with- is entitled to a derivative status cor- in the class described in INA responding to the classification and 101(a)(27)(K). priority date of the beneficiary of the (ii) Entitlement to derivative status. petition. Pursuant to INA 203(d), and whether or (4) Spouse and children of certain for- not named in the petition, the spouse eign medical graduates. The accom- or child of any alien classified under panying spouse and children of a grad- INA 203(b)(4) as a special immigrant uate of a foreign medical school or of a qualified under this section, if not oth- person qualified to practice medicine erwise entitled to an immigrant status in a foreign state who has adjusted sta- and the immediate issuance of a visa, tus as a special immigrant under the is entitled to a derivative status cor- provisions of INA 101(a)(27)(H) are clas- responding to the classification and sifiable under INA 203(b)(4) as special priority date of the beneficiary of the immigrants defined in INA 101(a)(27)(H) petition. if the consular officer has received an (8) Certain United States international approved petition from DHS which ac- broadcasting employees—(i) Entitlement cords such status and the consular offi- to status. An alien is classifiable as a cer is satisfied that the alien is within special immigrant under INA 203(b)(4) the class described in INA 101(a)(27)(H). as described in INA 101(a)(27)(M), if the (5) Certain international organization consular office has received a petition and NATO civilian employees—(i) Entitle- approved by the DHS to accord such ment to status. An alien is classifiable classification, or official notification of under INA 203(b)(4) as a special immi- such an approval, and the consular offi- grant defined in INA 101(a)(27)(I) or (L) cer is satisfied from the evidence pre- if the consular officer has received a sented that the alien is within the petition approved by the DHS to accord class described in INA 101(a)(27)(M).

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(ii) Entitlement to derivative status. (2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or Pursuant to INA 203(d), and whether or not named in the petition, the spouse not named in the petition, the spouse or child of any alien classified under or child of an employment-based fifth INA 203(b)(4) as a special immigrant preference immigrant, if not otherwise qualified under this section, if not oth- entitled to an immigrant status and erwise entitled to an immigrant status the immediate issuance of a visa, is en- and the immediate issuance of a visa, titled to a derivative status cor- is entitled to derivative status corresponding to the classification and responding to the classification and priority date of the beneficiary of the priority date of the beneficiary of the petition. petition. [56 FR 49676, Oct. 1, 1991, as amended at 56 FR (9) Certain victims of the September 11, 51172, Oct. 10, 1991; 56 FR 55077, Oct. 24, 1991; 2001 terrorist attacks—(i) Entitlement to 60 FR 35839, July 12, 1995; 63 FR 4394, Jan. 29, status. An alien shall be classifiable as 1998; 63 FR 68393, Dec. 11, 1998; 65 FR 80745, a special immigrant under INA 203(b)(4) Dec. 22, 2000; 66 FR 15350, Mar. 19, 2001; 68 FR as specified in section 421 of Public 24639, May 8, 2003] Law 107–56, if: § 42.33 Diversity immigrants. (A) The consular officer has received a petition approved by the DHS to ac- (a) General—(1) Eligibility to compete cord such classification, or official no- for consideration under section 203(c). An tification of such an approval, and the alien will be eligible to compete for consular officer is satisfied from the consideration for visa issuance under evidence presented that the alien is en- INA 203(c) during a fiscal year only if titled to that classification; or he or she is a native of a low-admission foreign state, as determined by the (B) The alien is the spouse or child of Secretary of Homeland Security pursu- an alien so classified in paragraph ant to INA 203(c)(1)(E), with respect to (d)(9)(i) of this section and is accom- the fiscal year in question; and if he or panying or following to join the prin- she has at least a high school edu- cipal alien. cation or its equivalent or, within the (ii) Ineligibility exemption. An alien five years preceding the date of appli- classified under paragraph (d)(9)(i) of cation for a visa, has two years of work this section shall not be subject to the experience in an occupation requiring provisions of INA 212(a)(4). at least two years training or experi- (iii) Priority date. Aliens entitled to ence. The eligibility for a visa under status under paragraph (d)(9)(i) of this INA 203(c) ceases at the end of the fis- section shall be assigned a priority cal year in question. Under no cir- date as of the date the petition was cumstances may a consular officer filed under INA 204 for classification issue a visa or other documentation to under section INA 203(b)(4) and visas an alien after the end of the fiscal year shall be issued in the chronological during which an alien possesses diver- order of application submission. How- sity visa eligibility. ever, in the event that the annual limit (2) Definition of high school education for immigrants under INA 203 is or its equivalent. For the purposes of reached, the alien may retain the ear- this section, the phrase high school lier priority date of the petition that education or its equivalent means the was revoked. successful completion of a twelve-year (e) Fifth preference—Employment-cre- course of elementary and secondary ation immigrants—(1) Entitlement to sta- education in the United States or suc- tus. An alien shall be classifiable as a cessful completion in another country fifth preference employment-creation of a formal course of elementary and immigrant if the consular officer has secondary education comparable to received from DHS an approved peti- completion of twelve years’ elementary tion to accord such status, or official and secondary education in the United notification of such an approval, and States. the consular officer is satisfied that (3) Determinations of work experience. the alien is within the class described For all cases registered for the 2003 Di- in INA 203(b)(5). versity Visa Program and Diversity

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Visa Programs occurring in subsequent electronic entry form mentioned in fiscal years, consular officers must use paragraph (b) of this section. The entry the Department of Labor’s O*Net On form will require the person com- Line to determine qualifying work ex- pleting the form to provide the fol- perience. lowing information, typed in the (4) Limitation on number of petitions Roman alphabet, regarding the alien per year. No more than one petition petitioner: may be submitted by or on behalf of, (i) The petitioner’s full name; any alien for consideration during any (ii) The petitioner’s date and place of single fiscal year. If two or more peti- birth (including city and country, prov- tions for any single fiscal year are sub- ince or other political subdivision of mitted by, or on behalf of, any alien, the country); all such petitions will be void pursuant (iii) The petitioner’s gender; to INA 204(a)(1)(I)(i) and the alien by or (iv) The country of which the peti- for whom the petition has been sub- tioner claims to be a native, if other mitted will not be eligible for consider- than the country of birth; ation for diversity visa issuance during (v) The name[s], date[s] and place[s] the fiscal year in question. of birth and gender of the petitioner’s (5) Northern Ireland. For purposes of spouse and child[ren], if any, (including determining eligibility to file a peti- legally adopted and step-children), re- tion for consideration under INA 203(c) gardless of whether or not they are liv- for a fiscal year, the districts coming with the petitioner or intend to ac- prising that portion of the United company or follow to join the peti- Kingdom of Great Britain and North- tioner should the petitioner immigrate ern Ireland, known as ‘‘Northern Ire- to the United States pursuant to INA land’’, will be treated as a separate for- 203(c), but excluding a spouse or a eign state. The districts comprising child[ren] who is already a U.S. citizen ‘‘Northern Ireland’’ are Antrim, Ards, or U.S. lawful permanent resident; Armagh, Ballymena, Ballymoney, Banbridge, Belfast, Carrickfergus, (vi) A current mailing address for the Castlereagh, Coleraine, Cookstown, petitioner; Craigavon, Down, Dungannon, Fer- (vii) The location of the consular of- managh, Larne, Limavady, Lisburn, fice nearest to the petitioner’s current Londonderry, Magherafelt, Moyle, residence or, if in the United States, Newry and Mourne, Newtownabbey, nearest to the petitioner’s last foreign North Down, Omagh, and Strabane. residence prior to entry into the (b) Petition requirement. An alien United States; claiming to be entitled to compete for (2) Requirements for photographs. The consideration under INA 203(c) must electronic entry form will also require file a petition with the Department of inclusion of a recent photograph of the State for such consideration. At the petitioner and of his or her spouse and alien petitioner’s request, another per- all unmarried children under the age of son may file a petition on behalf of the 21 years. The photographs must meet alien. The petition will consist of an the following specifications: electronic entry form that the alien pe- (i) A digital image of the applicant titioner or a person acting on the be- from either a digital camera source or half of the alien petitioner must com- a scanned photograph via scanner. If plete on-line and submit to the Depart- scanned, the original photographic ment of State via a Web site estab- print must have been 2″ by 2″ (50mm × lished by the Department of State for 50mm). Scanner hardware and digital the purpose of receiving such petitions. image resolution requirements will be The Department will specify the ad- further specified in the public notice dress of the Web site prior to the com- described in paragraph (b)(3) of this mencement of the 30-day or greater pe- section. riod described in paragraph (b)(3) of (ii) The image must be in the Joint this section using the notice procedure Photographic Experts Group (JPEG) prescribed in that paragraph. File Interchange Format (JFIF) for- (1) Information to be provided in the pe- mat. tition. The website will include the (iii) The image must be in color.

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(iv) The person being photographed arate numerical sequence established must be directly facing the camera for each regional area specified in INA with the head neither tilted up, down, 203(c)(1)(F). Upon completion of the or to the side. The head must cover numbering of all petitions, all numbers about 50% of the area of the photo- assigned for each region will be sepa- graph. rately rank-ordered at random by a (v) The photograph must be taken computer using standard computer with the person in front of a neutral, software for that purpose. The Depart- light-colored background. Photos ment will then select in the rank or- taken with very dark or patterned, ders determined by the computer pro- busy backgrounds will not be accepted. gram a quantity of petitions for each (vi) The person’s face must be in region estimated to be sufficient to en- focus. sure, to the extent possible, usage of (vii) The person in the photograph all immigrant visas authorized under must not wear sunglasses or other par- INA 203(c) for the fiscal year in ques- aphernalia that detracts from the face. tion. The Department will consider pe- (viii) A photograph with the person titions selected in this manner to have wearing a head covering or a hat is been approved for the purposes of this only acceptable if the covering or hat section. is worn specifically due to that per- (d) Validity of approved petitions. A pe- son’s religious beliefs, and even then, tition approved pursuant to paragraph the hat or covering may not obscure (c) of this section will be valid for a pe- any portion of the face. A photograph riod not to exceed Midnight of the last of a person wearing tribal, military, day of the fiscal year for which the pe- airline or other headgear not specifi- tition was approved. At that time, the cally religious in nature will not be ac- Department of State will consider ap- cepted. proval of the petition to cease to be (3) Submission of petition. A petition valid pursuant to INA 204(a)(1)(I)(ii)(II), for consideration for visa issuance which prohibits issuance of visas based under INA 203(c) must be submitted to upon petitions submitted and approved the Department of State by electronic for a fiscal year after the last day of entry to an Internet website designated that fiscal year. by the Department for that purpose. No (e) Order of consideration. Consider- fee will be collected at the time of sub- ation for visa issuance to aliens whose mission of a petition, but a processing petitions have been approved pursuant fee may be collected at a later date, as to paragraph (c) of this section will be provided in paragraph (i) of this sec- in the regional rank orders established tion. The Department will establish a pursuant that paragraph. period of not less than thirty days dur- (f) Allocation of visa numbers. To the ing each fiscal year within which aliens extent possible, diversity immigrant may submit petitions for approval of visa numbers will be allocated in ac- eligibility to apply for visa issuance cordance with INA 203(c)(1)(E) and will during the following fiscal year. Each be allotted only during the fiscal year fiscal year the Department will give for which a petition to accord diversity timely notice of both the website ad- immigrant status was submitted and dress and the exact dates of the peti- approved. Under no circumstances will tion submission period, as well as other immigrant visa numbers be allotted pertinent information, through publi- after midnight of the last day of the cation in the FEDERAL REGISTER and fiscal year for which the petition was such other methods as will ensure the submitted and approved. widest possible dissemination of the in- (g) Further processing. The Depart- formation, both abroad and within the ment will inform applicants whose pe- United States. titions have been approved pursuant to (c) Processing of petitions. Entries re- paragraph (c) of this section of the ceived during the petition submission steps necessary to meet the require- period established for the fiscal year in ments of INA 222(b) in order to apply question and meeting all of the re- formally for an immigrant visa. quirements of paragraph (b) of this sec- (h) Maintenance of certain information. tion will be assigned a number in a sep- (1) The Department will compile and

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maintain the following information officer has received a petition filed and concerning petitioners to whom immi- approved in accordance with INA 204 or grant visas are issued under INA 203(c): official notification of such filing and (i) Age; approval. (ii) Country of birth; [56 FR 49682, Oct. 1, 1991] (iii) Marital status; (iv) Sex; § 42.43 Suspension or termination of (v) Level of education; and action in petition cases. (vi) Occupation and level of occupa- (a) Suspension of action. The consular tional qualification. officer shall suspend action in a peti- (2) The Department will not maintain tion case and return the petition, with the names of visa recipients in connec- a report of the facts, for reconsider- tion with this information and the in- ation by DHS if the petitioner requests formation will be compiled and main- suspension of action, or if the officer tained in such form that the identity of knows or has reason to believe that ap- visa recipients cannot be determined proval of the petition was obtained by therefrom. fraud, misrepresentation, or other un- (i) Processing fee. In addition to col- lawful means, or that the beneficiary is lecting the immigrant visa application not entitled, for some other reason, to fee and, if applicable, issuance fees, as the status approved. provided in § 42.71(b) of this part, the (b) Termination of action. (1) The con- consular officer must also collect from sular officer shall terminate action in each applicant for a visa under the Di- a petition case upon receipt from DHS versity Immigrant Visa Program such of notice of revocation of the petition processing fee as the Secretary of State in accordance with DHS regulations. prescribes. (2) The consular officer shall termi- [68 FR 49355, Aug. 18, 2003, as amended at 73 nate action in a petition case subject FR 7670, Feb. 11, 2008] to the provisions of INA 203(g) in accordance with the provisions of § 42.83. Subpart E—Petitions [56 FR 49682, Oct. 1, 1991] § 42.41 Effect of approved petition. Subpart F—Numerical Controls Consular officers are authorized to and Priority Dates grant to an alien the immediate relative or preference status accorded in a petition approved in the alien’s behalf SOURCE: 56 FR 51174, Oct. 10, 1991, unless upon receipt of the approved petition otherwise noted. or official notification of its approval. § 42.51 Department control of numer- The status shall be granted for the pe- ical limitations. riod authorized by law or regulation. (a) Centralized control. Centralized The approval of a petition does not re- control of the numerical limitations on lieve the alien of the burden of estab- immigration specified in INA 201, 202, lishing to the satisfaction of the con- and 203 is established in the Depart- sular officer that the alien is eligible in ment. The Department shall limit the all respects to receive a visa. number of immigrant visas that may [56 FR 49682, Oct. 1, 1991] be issued and the number of adjustments of status that may be granted to § 42.42 Petitions for immediate rel- aliens subject to these numerical limi- ative or preference status. tations to a number: Petition for immediate relative or pref- (1) Not to exceed 27 percent of the erence status. The consular officer may world-wide total made available under not issue a visa to an alien as an imme- INA 203 (a), (b) and (c) in any of the diate relative entitled to status under first three quarters of any fiscal year; 201(b), a family-sponsored immigrant and entitled to preference status under (2) Not to exceed, in any month of a 203(a)(1)–(4), or an employment-based fiscal year, 10% of the world-wide total preference immigrant entitled to sta- made available under INA 203 (a), (b) tus under INA 203(b)(1)–(5), unless the and (c) plus any balance remaining

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from authorizations for preceding merical limitations. The records which months in the same fiscal year. pertain to applicants subject to numer- (b) Allocation of numbers. Within the ical limitations constitute ‘‘waiting foregoing limitations, the Department lists’’ within the meaning of INA shall allocate immigrant visa numbers 203(e)(3) as redesignated by the Immi- for use in connection with the issuance gration Act of 1990. of immigrant visas and adjustments (b) Entitlement to immigrant classifica- based on the chronological order of the tion. An alien shall be entitled to im- priority dates of visa applicants classi- migrant classification if the alien: fied under INA 203 (a) and (b) reported (1) Is the beneficiary of an approved by consular officers pursuant to petition according immediate relative § 42.55(b) and of applicants for adjust- or preference status; ment of status as reported by officers (2) Has satisfied the consular officer of the DHS, taking into account the re- that the alien is entitled to special im- quirements of INA 202(e) in such alloca- migrant status under INA(101)(a)(27) tions. In the case of applicants under (A) or (B); INA 203(c), visa numbers shall be allo- (3) Is entitled to status as a Vietnam cated within the limitation for each Amerasian under section 584(b)(1) of specified geographical region in the section 101(e) of Public Law 100–202 as random order determined in accord- amended by Public Law 101–167 and re- ance with sec. 42.33(c) of this part. amended by Public Law 101–513; or (c) Recaptured visa numbers. An immi- (4) Beginning in FY–95, is entitled to grant visa number shall be returned to status as a diversity immigrant under the Department for reallocation within INA 203(c). the fiscal year in which the visa was (c) Record made when entitlement to issued when: immigrant classification is established. (1) (1) An immigrant having an immi- A record that an alien is entitled to an grant visa is excluded from the United immigrant visa classification shall be States and deported; made on Form OF–224, Immigrant Visa (2) An immigrant does not apply for Control Card, or through the auto- admission to the United States before mated system in use at selected posts, the expiration of the validity of the whenever the consular officer is satis- visa; fied—or receives evidence—that the (3) An alien having a preference im- alien is within the criteria set forth in migrant visa is found not to be a pref- paragraph (b) of this section. erence immigrant; or (2) A separate record shall be made of (4) An immigrant visa is revoked pur- family members entitled to derivative suant to § 42.82. immigrant status whenever the consular officer determines that a spouse [56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 63 FR 48578, Sept. 11, or child is chargeable to a different for- 1998] eign state or other numerical limitation than the principal alien. The pro- § 42.52 Post records of visa applica- visions of INA 202(b) are to be applied tions. as appropriate when either the spouse (a) Waiting list. Records of individual or parent is reached on the waiting visa applicants entitled to an immi- list. grant classification and their priority (3) A separate record shall be made of dates shall be maintained at posts at a spouse or child entitled to derivative which immigrant visas are issued. immigrant status whenever the con- These records shall indicate the chron- sular officer determines that the prin- ological and preferential order in cipal alien intends to precede the fam- which consideration may be given to ily. immigrant visa applications within the [56 FR 51174, Oct. 9, 1991, as amended at 61 FR several immigrant classifications sub- 1836, Jan. 24, 1996] ject to the numerical limitations specified in INA 201, 202, and 203. Similar § 42.53 Priority date of individual ap- records shall be kept for the classes plicants. specified in INA 201(b)(2) and 101(a)(27) (a) Preference applicant. The priority (A) and (B) which are not subject to nu- date of a preference visa applicant

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under INA 203 (a) or (b) shall be the tions have been recorded in accordance fiing date of the approved petition that with § 42.52(c). accorded preference status. (b) Documentarily qualified applicants. (b) Former Western Hemisphere appli- Consular officers shall also report peri- cant with priority date prior to January 1, odically, as the Department may di- 1977. Notwithstanding the provisions of rect, the number and priority dates of paragraph (a) of this section, an alien all applicants described in paragraph who, prior to January 1, 1977, was sub- (a) of this section who have informed ject to the numerical limitation speci- the consular office that they have ob- fied in section 21(e) of the Act of Octo- tained the documents required under ber 3, 1965, and who was registered as a INA 222(b), for whom the necessary Western Hemisphere immigrant with a clearance procedures have been com- priority date prior to January 1, 1977, pleted. shall retain that priority date as a preference immigrant upon approval of [56 FR 51174, Oct. 10, 1991, as amended at 61 FR 1836, Jan. 24, 1996] a petition according status under INA 203 (a) or (b). (c) Derivative priority date for spouse or Subpart G—Application for child of principal alien. A spouse or child Immigrant Visas of a principal alien acquired prior to the principal alien’s admission shall be § 42.61 Place of application. entitled to the priority date of the (a) Alien to apply in consular district of principal alien, whether or not named residence. Unless otherwise directed by in the immigrant visa application of the Department, an alien applying for the principal alien. A child born of a an immigrant visa shall make applica- marriage which existed at the time of a tion at the consular office having juris- principal alien’s admission to the diction over the alien’s place of resi- United States is considered to have dence; except that, unless otherwise di- been acquired prior to the principal rected by the Department, an alien alien’s admission. physically present in an area but having no residence therein may make ap- § 42.54 Order of consideration. plication at the consular office having (a) General. Consular officers shall re- jurisdiction over that area if the alien quest applicants to take the steps nec- can establish that he or she will be able essary to meet the requirements of INA to remain in the area for the period re- 222(b) in order to apply formally for a quired to process the application. Fi- visa as follows: nally, a consular office may, as a mat- (1) In the chronological order of the ter of discretion, or shall, at the direc- priority dates of all applicants within tion of the Department, accept an im- each of the immigrant classifications migrant visa application from an alien specified in INA 203 (a) and (b); and who is neither a resident of, nor phys- (2) In the random order established ically present in, the area designated by the Secretary of State for each re- for that office for such purpose. For the gion for the fiscal year for applicants purposes of this section, an alien phys- entitled to status under INA 203(c). ically present in the United States (b) [Reserved] shall be considered to be a resident of the area of his or her last residence [56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 61 FR 1836, Jan. 24, prior to entry into the United States. 1996; 63 FR 48578, Sept. 11, 1998] (b) Transfer of immigrant visa cases. (1) All documents, papers, and other evi- § 42.55 Reports on numbers and pri- dence relating to an applicant whose ority dates of applications on case is pending or has been refused at record. one post may be transferred to another (a) Consular officers shall report pe- post at the applicant’s request and risk riodically, as the Department may di- when there is reasonable justification rect, the number and priority dates of for the transfer and the transferring all applicants subject to the numerical post has no reason to believe that the limitations prescribed in INA 201, 202, alien will be unable to appear at the re- and 203 whose immigrant visa applica- ceiving post.

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(2) Any approved petition granting sists of parts I and II which, together, immediate relative or preference sta- are meant in any reference to this tus should be included among the docu- Form. ments when a case is transferred from (2) Application of alien under 14 or one post to another. physically incapable. The application on (3) In no case may a visa number be Form DS–230 or on Form DS–260 for an transferred from one post to another. A alien under 14 years of age or one phys- visa number which cannot be used as a ically incapable of completing an appli- result of the transfer must be returned cation may be executed by the alien’s to the Department immediately. parent or guardian, or, if the alien has no parent or guardian, by any person [52 FR 42613, Nov. 5, 1987, as amended at 59 having legal custody of, or a legitimate FR 39955, Aug. 4, 1994] interest in, the alien. § 42.62 Personal appearance and inter- (b) Preparation of forms. The consular view of applicant. officer shall ensure that Form DS–230 or Form DS–260 and all other forms an (a) Personal appearance of applicant alien is required to submit are fully before consular officer. Every alien ap- and properly completed in accordance plying for an immigrant visa, including with the applicable regulations and in- an alien whose application is executed structions. by another person pursuant to (c) Additional information as part of § 42.63(a)(2), shall be required to appear application. The officer may require the personally before a consular officer for submission of additional information the execution of the application or, if or question the alien on any relevant in Taiwan, before a designated officer matter whenever the officer believes of the American Institute in Taiwan, that the information provided in Form except that the personal appearance of DS–230 or Form DS–260 is inadequate to any child under the age of 14 may be determine the alien’s eligibility to re- waived at the officer’s discretion. ceive an immigrant visa. Additional (b) Interview by consular officer. Every statements made by the alien become a alien executing an immigrant visa ap- part of the visa application. All docu- plication must be interviewed by a con- ments required under the authority of sular officer who shall determine on § 42.62 are considered papers submitted the basis of the applicant’s representa- with the alien’s application within the tions and the visa application and meaning of INA 221(g)(1). other relevant ducumentation— (1) The proper immigrant classifica- [75 FR 45476, Aug. 3, 2010] tion, if any, of the visa applicant, and § 42.64 Passport requirements. (2) The applicant’s eligibility to receive a visa. (a) Passport defined. Passport, as defined in INA 101(a)(30), is not limited to The officer has the authority to require a national passport or to a single docu- that the alien answer any question ment. A passport may consist of two or deemed material to these determina- more documents which, when consid- tions. ered together, fulfill the requirements [52 FR 42613, Nov. 5, 1987, as amended at 56 of a passport, provided that documen- FR 49682, Oct. 1, 1991] tary evidence of permission to enter a foreign country has been issued by a § 42.63 Definitions. competent authority and clearly meets (a) Application forms—(1) Application the requirements of INA 101(a)(30). on Form DS–230 or Form DS–260 Re- (b) Passport validity requirements. Ex- quired.—Every alien applying for an cept as provided in § 42.2, every appli- immigrant visa must make applica- cant for an immigrant visa shall tion, as directed by the consular offi- present a passport, as defined in INA cer, on Form DS–230, Application for 101(a)(30), that is valid for at least 60 Immigrant Visa and Alien Registra- days beyond the period of validity of tion, or on Form DS–260, Electronic the visa. The 60-day additional validity Application for Immigrant Visa and requirement does not apply to an appli- Alien Registration. This requirement cant who would be excepted as provided may not be waived. Form DS–230 con- in § 42.2 were it not for the fact that the

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applicant is applying in the country of the alien has resided for at least one which the applicant is a national and year. A consular officer may require a the possession of a passport is required police certificate regardless of length for departure. Such an applicant may of residence in any country if he or she be issued a visa valid for 6 months or has reason to believe that a police for such shorter period as will assure record exists in the country, area, or its expiration in unison with the pass- locality concerned. port. (2) Prison record means an official (c) A single passport including more document containing a report of the than one person. The passport require- applicant’s record of confinement and ment of this section may be met by the conduct in a penal or correctional in- presentation of a passport including stitution. more than one person, if such inclusion (3) Military record means an official is authorized under the laws or regula- document containing a complete tions of the issuing authority and if a record of the applicant’s service and photograph of each person 16 years of conduct while in military service, in- age or over is attached to the passport cluding any convictions of crime before by the issuing authority. military tribunals as distinguished [52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, from other criminal courts. A certifi- 1988, as amended at 63 FR 48578, Sept. 11, cate of discharge from the military 1998] forces or an enrollment book belonging to the applicant shall not be acceptable § 42.65 Supporting documents. in lieu of the official military record, (a) Authority to require documents. The unless it shows the alien’s complete consular officer is authorized to re- record while in military service. The quire documents considered necessary applicant may, however, be required to to establish the alien’s eligibility to represent for inspection such a discharge ceive an immigrant visa. All such docu- certificate or enrollment book if ments submitted and other evidence deemed necessary by the consular offi- presented by the alien, including briefs cer to establish the applicant’s eligi- submitted by attorneys or other rep- bility to receive a visa. resentatives, shall be considered by the (4) A certified copy of an alien’s record officer. of birth means a certificate issued by (b) Basic documents required. An alien the official custodian of birth records applying for an immigrant visa shall be in the country of birth showing the required to furnish, if obtainable: A date and place of birth and the parent- copy of a police certificate or certifi- age of the alien, based upon the origi- cates; a certified copy of any existing nal registration of birth. prison record, military record, and (5) Other records or documents include record of birth; and a certified copy of any records or documents establishing all other records or documents which the applicant’s relationship to a spouse the consular officer considers nec- or children, if any, and any records or essary. documents pertinent to a determina- (c) Definitions. (1) Police certificate tion of the applicant’s identity, classi- means a certification by the police or fication, or any other matter relating other appropriate authorities reporting to the applicant’s visa eligibility. information entered in their records re- (d) Unobtainable documents. (1) If the lating to the alien. In the case of the consular officer is satisfied, or the country of an alien’s nationality and catalogue of available documents pre- the country of an alien’s current resi- pared by the Department indicates, dence (as of the time of visa applica- that any document or record required tion) the term ‘‘appropriate police au- under this section is unobtainable, the thorities’’ means those of a country, officer may permit the immigrant to area or locality in which the alien has submit other satisfactory evidence in resided for at least six months. In the lieu of such document or record. A doc- case of all other countries, areas, or lo- ument or other record shall be consid- calities, the term ‘‘appropriate police ered unobtainable if it cannot be pro- authorities’’ means the authorities of cured without causing to the applicant any country, area, or locality in which or a family member actual hardship as

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opposed to normal delay and inconven- graph (b) of this section unless the phy- ience. sician has facilities to perform re- (2) If the consular officer determines quired serological and X-ray tests or is that a supporting document, as de- in a position to refer applicants to a scribed in paragraph (b) of this section, qualified laboratory for such tests. is in fact unobtainable, although the catalogue of available documents § 42.67 Execution of application, reg- shows it is available, the officer shall istration, and fingerprinting. affix to the visa application a signed (a) Execution of visa application—(1) statement describing in detail the rea- Application fee. A fee is prescribed for sons for considering the record or docu- each application for an immigrant ment unobtainable and for accepting the particular secondary evidence at- visa. It shall be collected prior to the tached to the visa. execution of the application and a re- (e) Authenticity of records and docu- ceipt shall be issued. ments. If the consular officer has reason (2) Oath and signature on Form DS–230. to believe that a required record or The applicant shall be required to read document submitted by an applicant is the Form DS–230, Application for Im- not authentic or has been altered or migrant Visa and Alien Registration, tampered with in any material manner, when it is completed, or it shall be read the officer shall take such action as to the applicant in the applicant’s lan- may be necessary to determine its au- guage, or the applicant shall otherwise thenticity or to ascertain the facts to be informed of its full contents. Appli- which the record or document purports cants shall be asked whether they are to relate. willing to subscribe thereto. If the ap- (f) Photographs. Every alien shall fur- plicant is not willing to subscribe to nish color photographs of the number the application unless changes are and specifications prescribed by the made in the information stated there- Department, except that, in countries in, the required changes shall be made. where facilities for producing color The application shall then be sworn to photographs are unavailable as deter- or affirmed and signed by or on behalf mined by the consular officer, black of the applicant before a consular offi- and white photographs may be sub- cer, or a designated officer of the stituted. American Institute of Taiwan, who [52 FR 42613, Nov. 5, 1987, as amended at 55 shall then sign the application over the FR 29015, July 17, 1990; 56 FR 49682, Oct. 1, officer’s title. 1991] (3) Oath and signature on Form DS–260. § 42.66 Medical examination. The applicant shall be required to read the Form DS–260, Electronic Applica- (a) Medical examination required of all tion for Immigrant Visa and Alien Reg- Before the issuance of an applicants. istration, when it has been completed, immigrant visa, the consular officer or it shall be read to the applicant in shall require every alien, regardless of the applicant’s language, or the appli- age, to undergo a medical examination cant shall otherwise be informed of its in order to determine eligibility to receive a visa. full contents, before the applicant elec- (b) Examination by physician from ap- tronically signs and submits the appli- proved panel. The required examination cation to the Department. At the time shall be conducted in accordance with of the applicant’s interview the appli- requirements and procedures estab- cant shall be asked whether they are lished by the United States Public willing to subscribe thereto to the in- Health Service and by a physician se- formation provided on Form DS–260. If lected by the alien from a panel of phy- the alien is not willing to subscribe to sicians approved by the consular offi- the application unless changes are cer. made in the information stated there- (c) Facilities required for panel physi- in, the required changes shall be made. cian. A consular officer shall not in- The application shall then be sworn to clude the name of a physician on the or affirmed and signed, biometrically, panel of physicians referred to in para- by or on behalf of the applicant before

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a consular officer, or a designated offi- Subpart H—Issuance of Immigrant cer of the American Institute of Tai- Visas wan, who shall then electronically sign the application. § 42.71 Authority to issue visas; visa (b) Registration. The alien shall be fees. considered to be registered for the pur- (a) Authority to issue visas. Consular poses of INA 221(b) and 203(g) upon the officers may issue immigrant visas at filing of Form DS–230 or Form DS–260, designated consular offices abroad pur- when duly executed, or the trans- suant to the authority contained in mission by the Department to the alien INA 101(a)(16), 221(a), and 224. (Consular of a notification of the availability of offices designated to issue immigrant an immigrant visa, whichever occurs visas are listed periodically in Visa Of- first. fice Bulletins published at (c) Fingerprinting. Every applicant for www.travel.state.gov by the Department an immigrant visa must furnish finger- of State.) A consular officer assigned to prints prior to the execution of Form duty in the territory of a country DS–230 or Form DS–260. against which the sanctions provided in INA 243(d) have been invoked must [75 FR 45476, Aug. 3, 2010] not issue an immigrant visa to an alien who is a national, citizen, subject, or § 42.68 Informal evaluation of family resident of that country, unless the of- members if principal applicant pre- ficer has been informed that the sanc- cedes them. tion has been waived by DHS in the (a) Preliminary determination of visa case of an individual alien or a speci- eligibility. If a principal applicant pro- fied class of aliens. poses to precede the family to the (b) Immigrant visa fees. The Secretary United States, the consular officer may of State prescribes a fee for the proc- arrange for an informal examination of essing of immigrant visa applications. the other members of the principal ap- An individual registered for immigrant plicant’s family in order to determine visa processing at a post designated for whether there exists at that time any this purpose by the Deputy Assistant mental, physical, or other ground of in- Secretary for Visa Services must pay the processing fee upon being notified eligibility on their part to receive a that a visa is expected to become avail- visa. able in the near future and being re- (b) When family member ineligible. In quested to obtain the supporting docu- the event the consular officer finds mentation needed to apply formally for that any member of such family would a visa. A fee collected for the proc- be ineligible to receive an immigrant essing of an immigrant visa applica- visa, the principal applicant shall be tion is refundable only if the principal informed and required to acknowledge officer of a post or the officer in charge receipt of this information in writing. of a consular section determines that (c) No guarantee of future eligibility. A the application was not adjudicated as determination in connection with an a result of action by the U. S. Govern- informal examination that an alien ap- ment over which the alien had no con- pears to be eligible for a visa carries no trol and for which the alien was not re- assurance that the alien will be issued sponsible, that precluded the applicant an immigrant visa in the future. The from benefiting from the processing. principal applicant shall be so in- [67 FR 38893, June 6, 2002] formed and required to acknowledge receipt of this information in writing. § 42.72 Validity of visas. The question of visa eligibility can be (a) Period of validity. With the excep- determined definitively only at the tion indicated herein, the period of va- time the family member applies for a lidity of an immigrant visa shall not visa. exceed six months, beginning with the date of issuance. Any visa issued to a child lawfully adopted by a U.S. citizen and spouse while such citizen is serving

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abroad in the U.S. Armed Forces, is ried at the time of application for ad- employed abroad by the U.S. Govern- mission at a U.S. port of entry. ment, or is temporarily abroad on busi- [52 FR 42613, Nov. 5, 1987, as amended at 56 ness, however, shall be valid until such FR 32323, July 16, 1991; 61 FR 1836, Jan. 24, time, for a period not to exceed 3 years, 1996; 62 FR 27694, May 21, 1997; 64 FR 28916, as the adoptive citizen parent returns May 28, 1999; 67 FR 38894, June 6, 2002; 68 FR to the United States in the course of 13628, Mar. 20, 2003] that parent’s military service, U.S. § 42.73 Procedure in issuing visas. Government employment, or business. (b) Extension of period of validity. If (a) Insertion of data. In issuing an im- the visa was originally issued for a pe- migrant visa, the issuing office shall insert the pertinent information in the riod of validity less than the maximum designated blank spaces provided on authorized by paragraph (a) of this sec- Form OF–55B, Immigrant Visa and tion, the consular officer may extend Alien Registration, in accordance with the validity of the visa up to but not the instructions contained in this sec- exceeding the maximum period per- tion. mitted. If an immigrant applies for an (1) A symbol as specified in § 42.11 extension at a consular office other shall be used to indicate the classifica- than the issuing office, the consular of- tion of the immigrant. ficer shall, unless the officer is satis- (2) An immigrant visa issued to an fied beyond doubt that the alien is eli- alien subject to numerical limitations gible for the extension, communicate shall bear a number allocated by the with the issuing office to determine if Department. The foreign state or de- there is any objection to an extension. pendent area limitation to which the In extending the period of validity, the alien is chargeable shall be entered in officer shall make an appropriate nota- the space provided. tion on the visa of the new expiration (3) No entry need be made in the date, sign the document with title indi- space provided for foreign state or cated, and impress the seal of the office other applicable area limitation on thereon. visas issued to aliens in the classifica- (c) [Reserved] tions set forth in § 42.12(a)(1)–(7), but such visas may be numbered if a post (d) Age and marital status in relation to voluntarily uses a consecutive post validity of certain immigrant visas. In ac- numbering system. cordance with § 42.64(b), the validity of (4) The date of issuance and the date a visa may not extend beyond a date of expiration of the visa shall be in- sixty days prior to the expiration of serted in the proper places on the visa the passport. The period of validity of and show the day, month, and year in a visa issued to an immigrant as a that order, with the name of the month child shall not extend beyond the day spelled out, as in ‘‘24 December 1986.’’ immediately proceding the date on (5) In the event the passport require- which the alien becomes 21 years of ment has been waived under § 42.2, a no- age. The consular officer shall warn an tation shall be inserted in the space alien, when appropriate, that the alien provided for the passport number, set- will be admissible as such an immi- ting forth the authority (section and grant only if unmarried and under 21 paragraph) under which the passport years of age at the time of application was waived. for admission at a U.S. port of entry. (6) A signed photograph shall be at- The consular officer shall also warn an tached in the space provided on Form alien issued a visa as a first or second OF–55B by the use of a legend machine, preference immigrant as an unmarried unless specific authorization has been son or daughter of a citizen or lawful granted by the Department to use the permanent resident of the United impression seal. States that the alien will be admissible (b) Documents comprising an immigrant visa. An immigrant visa consists of as such an immigrant only if unmar- Form OF–155B and Form DS–230, Appli- cation for Immigrant Visa and Alien Registration, properly executed, and a

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copy of each document required pursu- (b) Replacement immigrant visa for an ant to § 42.63. immediate relative or for an alien subject (c) Arrangement of visa documentation. to numerical limitation. (1) A consular Form OF–155B shall be placed imme- officer may issue a replacement visa diately above Form DS–230 and the under the original number of a quali- supporting documents attached there- fied alien entitled to status as an im- to. Any document required to be at- mediate relative (INA 201(b)(2)), a fam- tached to the visa, if furnished to the ily or employment preference immi- consular officer by the alien’s sponsor grant (INA 203(a) or (b)), or a diversity or other person with a request that the immigrant (INA 203(c)), if— contents not be divulged to the visa ap- (i) The alien is unable to use the visa plicant, shall be placed in an envelope during the period of its validity due to and sealed with the impression seal of reasons beyond the alien’s control; the consular office before being attached to the visa. If an immigrant (ii) The visa is issued during the visa is issued to an alien in possession same fiscal year in which the original of a United States reentry permit, visa was issued, or in the following valid or expired, the consular officer year, in the case of an immediate rel- shall attach the permit to the immi- ative only, if the original number had grant visa for disposition by DHS at been reported as recaptured; the port of entry. (Documents having (iii) The number has not been re- no bearing on the alien’s qualifications turned to the Department as a ‘‘recap- or eligiblity to receive a visa may be tured visa number’’ in the case of a returned to the alien or to the person preference or diversity immigrant; who furnished them.) (iv) The alien pays anew the applica- (d) Signature, seal, and issuance of tion and processing fees prescribed in visa. The consular officer shall sign the the Schedule of Fees; and visa (Form OF–155B) and impress the (v) The consular officer ascertains seal of the office on it so as to partially whether the original issuing office cover the photograph and the signa- knows of any reason why a new visa ture. The immigrant visa shall then be should not be issued. issued by delivery to the immigrant or (2) In issuing a visa under this para- the immigrant’s authorized agent or graph (b), the consular officer shall in- representative. sert the word ‘‘REPLACE’’ on Form [52 FR 42613, Nov. 5, 1987, as amended at 56 OF–155B, Immigrant Visa and Alien FR 49682, Oct. 1, 1991; 71 FR 34522, June 15, Registration, before the word ‘‘IMMI- 2006] GRANT’’ in the title of the visa. (c) Duplicate visas issued within the va- § 42.74 Issuance of new or replacement visas. lidity period of the original visa. If the validity of a visa previously issued has (a) New immigrant visa for a special im- not yet terminated and the original migrant under INA 101(a)(27)(A) and (B). visa has been lost or mutilated, a du- (1) The consular officer may issue a plicate visa may be issued containing new immigrant visa to a qualified alien entitled to status under INA all of the information appearing on the 101(a)(27)(A) or (B), who establishes: original visa, including the original (i) That the original visa has been issuance and expiration dates. The ap- lost, mutilated or has expired, or plicant shall execute a new application (ii) The alien will be unable to use it and provide copies of the supporting during the period of its validity; documents submitted in support of the (2) Provided: original application. The alien must (i) The alien pays anew the applica- pay anew the application processing tion processing fees prescribed in the fees prescribed in the Schedule of Fees. Schedule of Fees; and In issuing a visa under this paragraph, (ii) The consular officer ascertains the consular officer shall insert the whether the original issuing office word ‘‘DUPLICATE’’ on Form OF–155B knows of any reason why a new visa should not be issued.

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before the word ‘‘IMMIGRANT’’ in the submit such evidence, all documents title of the visa. may, with the consent of the alien, be [52 FR 42613, Nov. 5, 1987, as amended at 56 retained in the consular files for a pe- FR 49682, Oct. 1, 1991; 61 FR 1836, Jan. 24, 1996; riod not to exceed one year. If the re- 63 FR 4393, Jan. 29, 1998; 67 FR 1416, Jan. 11, fusal as not been overcome within one 2002; 67 FR 38894, June 6, 2002; 71 FR 34522, year, any documents not relating to June 15, 2006] the refusal shall be removed from the file and returned to the alien. Subpart I—Refusal, Revocation, (c) Review of refusal at consular office. and Termination of Registration If the grounds of ineligibility upon which the visa was refused cannot be § 42.81 Procedure in refusing individual visas. overcome by the presentation of additional evidence, the principal consular (a) Issuance or refusal mandatory. officer at a post, or a specifically des- When a visa application has been prop- ignated alternate, shall review the case erly completed and executed before a consular officer in accordance with the without delay, record the review deci- provisions of INA and the imple- sion, and sign and date the prescribed menting regulations, the consular offi- form. If the grounds of ineligibility cer must either issue or refuse the visa may be overcome by the presentation under INA 212(a) or INA 221(g) or other of additional evidence and the appli- applicable law. Every refusal must be cant indicates the intention to submit in conformance with the provisions of such evidence, a review of the refusal 22 CFR 40.6. may be deferred. If the principal con- (b) Refusal procedure. A consular offi- sular officer or alternate does not con- cer may not refuse an immigrant visa cur in the refusal, that officer shall ei- until either Form DS–230, Application ther (1) refer the case to the Depart- for Immigrant Visa and Alien Registra- ment for an advisory opinion, or (2) as- tion, or Form DS–260, Electronic Appli- sume responsibility for final action on cation for Immigrant Visa and Alien the case. Registration, has been executed by the (d) Review of refusal by Department. applicant. When an immigrant visa is The Department may request a con- refused, an appropriate record shall be sular officer in an individual case or in made in duplicate on a form prescribed specified classes of cases to submit a by the Department. The form shall be report if an immigrant visa has been signed and dated by the consular officer. The consular officer shall inform refused. The Department will review the applicant of the provision of law or each report and may furnish an advi- implementing regulation on which the sory opinion to the consular officer for refusal is based and of any statutory assistance in considering the case fur- provision of law or implementing regu- ther. If the officer believes that action lation under which administrative re- contrary to an advisory opinion should lief is available. Each document re- be taken, the case shall be resubmitted lated to the refusal shall then be at- to the Department with an explanation tached to Form DS–230 for retention in of the proposed action. Rulings of the the refusal files. Alternatively, each Department concerning an interpreta- document related to the refusal shall tion of law, as distinguished from an be electronically scanned and elec- application of the law to the facts, are tronically attached to Form DS–260 for binding upon consular officers. retention in the electronic refusal files. (e) Reconsideration of refusal. If a visa Any documents not related to the re- is refused, and the applicant within one fusal shall be returned to the appli- year from the date of refusal adduces cant. The original copy of a document further evidence tending to overcome that was scanned and attached to the the ground of ineligibility on which the DS–260 for the refusal file shall be re- refusal was based, the case shall be returned to the applicant. If the ground considered. In such circumstance, an of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates an intention to

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additional application fee shall not be the revocation, including a full report required. of the facts in the case, to the Depart- ment for transmission to the DHS. A [52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 66 FR 10364, Feb. 15, 2001; report is not required if the visa has 71 FR 34522, June 15, 2006; 75 FR 45477, Aug. been physically canceled prior to the 3, 2010] alien’s departure for the United States. (f) Record of action. Upon the revoca- § 42.82 Revocation of visas. tion of an immigrant visa, the consular (a) Grounds for revocation. Consular officer shall make appropriate notation officers are authorized to revoke an for the post file of the action taken, in- immigrant visa under the following cluding a statement of the reasons circumstances: therefor, and if the revocation of the (1) The consular officer knows, or visa is effected at other than the after investigation is satisfied, that the issuing office, a report of the action visa was procured by fraud, a willfully taken shall be sent to that office. false or misleading representation, the (g) Reconsideration of revocation. (1) willful concealment of a material fact, The consular officer shall consider any or other unlawful means; evidence submitted by the alien or the (2) The consular officer obtains infor- alien’s attorney or representative in mation establishing that the alien was connection with a request that the rev- otherwise ineligible to receive the par- ocation of the visa be reconsidered. If ticular visa at the time it was issued; the officer finds that the evidence is or sufficient to overcome the basis for the (3) The consular officer obtains infor- revocation, a new visa shall be issued. mation establishing that, subsequent A memorandum regarding the action to the issuance of the visa, a ground of taken and the reasons therefore shall ineligibility has arisen in the alien’s be placed in the consular files and ap- case. propriate notification made promptly (b) Notice of proposed revocation. The to the carriers concerned, the Depart- bearer of an immigrant visa which is ment, and the issuing office if notice of being considered for revocation shall, if revocation has been given in accord- practicable, be notified of the proposed ance with paragraphs (d), (e), and (f) of action, given an opportunity to show this section. cause why the visa should not be re- (2) In view of the provisions of voked, and requested to present the § 42.71(b) providing for the refund of visa to the consular office indicated in fees when the visa has not been used as the notification of proposed cancella- a result of action by the U.S. Govern- tion. ment, no fees shall be collected in con- (c) Procedure in revoking visas. An im- nection with the application for or migrant visa which is revoked shall be issuance of such a reinstated visa. canceled by writing the word ‘‘RE- VOKED’’ plainly across the face of the § 42.83 Termination of registration. visa. The cancellation shall be dated (a) Termination following failure of ap- and signed by the consular officer tak- plicant to apply for visa. In accordance ing the action. The failure of an alien with INA 203(g), an alien’s registration to present the visa for cancellation for an immigrant visa shall be termi- does not affect the validity of any ac- nated if, within one year after trans- tion taken to revoke it. mission of a notification of the avail- (d) Notice to carriers. Notice of revoca- ability of an immigrant visa, the appli- tion of a visa shall be given to the mas- cant fails to apply for an immigrant ter, commanding officer, agent, owner, visa. charterer, or consignee of the carrier (b) Termination following visa refusal. or transportation line on which it is An alien’s registration for an immi- believed the alien intends to travel to grant visa shall be terminated if, with- the United States, unless the visa has in one year following the refusal of the been canceled as provided in paragraph immigrant visa application under INA (c) of this section. 221(g), the alien has failed to present to (e) Notice to Department. The consular a consular officer evidence purporting officer shall promptly submit notice of to overcome the basis for refusal.

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(c) Notice of termination. Upon the ter- mission to depart as an immigrant, and mination of registration under para- foreign military service. graph (a) of this section, the National [52 FR 42613, Nov. 5, 1987, as amended at 56 Visa Center (NVC) shall notify the FR 49682, Oct. 1, 1991; 73 FR 11028, Feb. 29, alien of the termination. The NVC 2008] shall also inform the alien of the right to have the registration reinstated if PARTS 43–45 [RESERVED] the alien, before the end of the second year after the missed appointment date PART 46—CONTROL OF ALIENS DE- if paragraph (a) applies, establishes to PARTING FROM THE UNITED the satisfaction of the consular officer STATES at the post where the alien is registered that the failure to apply for an Sec. immigrant visa was due to cir- 46.1 Definitions. cumstances beyond the alien’s control. 46.2 Authority of departure-control officer If paragraph (b) applies, the consular to prevent alien’s departure from the officer at the post where the alien is United States. 46.3 Aliens whose departure is deemed prej- registered shall, upon the termination udicial to the interests of the United of registration, notify the alien of the States. termination and the right to have the 46.4 Procedure in case of alien prevented registration reinstated if the alien, be- from departing from the United States. fore the end of the second year after 46.5 Hearing procedure before special inquiry officer. the INA 221(g) refusal, establishes to 46.6 Departure from the Canal Zone, the the satisfaction of the consular officer Trust Territory of the Pacific Islands, or at such post that the failure to present outlying possessions of the United evidence purporting to overcome the States. ineligibility under INA 221(g) was due 46.7 Instructions from the Administrator to circumstances beyond the alien’s required in certain cases. control. AUTHORITY: Secs. 104, 215, 66 Stat. 174, 190; (d) Reinstatement of registration. If the 8 U.S.C. 1104, 1185. consular officer is satisfied that an § 46.1 Definitions. alien, as provided for in paragraph (c) of this section, has established that For the purposes of this part: (a) The term alien means any person failure to apply as scheduled for an im- who is not a citizen or national of the migrant visa or to present evidence United States. purporting to overcome ineligibility (b) The term Commissioner means the under INA 221(g) was due to cir- Commissioner of Immigration and Nat- cumstances beyond the alien’s control, uralization. the consular officer shall reinstate the (c) The term regional commissioner alien’s registration for an immigrant means an officer of the Immigration visa. Any petition approved under INA and Naturalization Service duly ap- 204(b) which had been automatically re- pointed or designated as a regional voked as a result of the termination of commissioner, or an officer who has registration shall be considered to be been designated to act as a regional automatically reinstated if the reg- commissioner. istration is reinstated. (d) The term district director means an (e) Interpretation of ‘‘circumstances be- officer of the Immigration and Natu- yond alien’s control’’. For the purpose of ralization Service duly appointed or this section, the term ‘‘circumstances designated as a district director, or an beyond the alien’s control’’ includes, officer who has been designated to act but is not limited to, an illness or as a district director. other physical disability preventing (e) The term United States means the the alien from traveling, a refusal by several States, the District of Colum- bia, the Canal Zone, Puerto Rico, the the authorities of the country of an Virgin Islands, Guam, American alien’s residence to grant the alien per- Samoa, Swains Island, the Trust Terri- tory of the Pacific Islands, and all

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other territory and waters, continental designated as a port of entry by the and insular, subject to the jurisdiction chief executive officer thereof. of the United States. (k) The term special inquiry officer (f) The term continental United States shall have the meaning ascribed there- means the District of Columbia and the to in section 101(b)(4) of the Immigra- several States, except Alaska and Ha- tion and Nationality Act. waii. (g) The term geographical part of the [22 FR 10827, Dec. 27, 1957, as amended at 25 FR 7022, July 23, 1960] United States means (1) the continental United States, (2) Alaska, (3) Hawaii, § 46.2 Authority of departure-control (4) Puerto Rico, (5) the Virgin Islands, officer to prevent alien’s departure (6) Guam, (7) the Canal Zone, (8) Amer- from the United States. ican Samoa, (9) Swains Island, or (10) the Trust Territory of the Pacific Is- (a) No alien shall depart, or attempt lands. to depart, from the United States if his (h) The term depart from the United departure would be prejudicial to the States means depart by land, water, or interests of the United States under air (1) from the United States for any the provisions of § 46.3. Any departure- foreign place, or (2) from one geo- control officer who knows or has rea- graphical part of the United States for son to believe that the case of an alien a separate geographical part of the in the United States comes within the United States: Provided, That a trip or provisions of § 46.3 shall temporarily journey upon a public ferry, passenger prevent the departure of such alien vessel sailing coastwise on a fixed from the United States and shall serve schedule, excursion vessel, or aircraft, him with a written temporary order di- having both termini in the continental recting him not to depart, or attempt United States or in any one of the to depart, from the United States until other geographical parts of the United notified of the revocation of the order. States and not touching any territory (b) The written order temporarily or waters under the jurisdiction or con- preventing an alien, other than an trol of a foreign power, shall not be enemy alien, from departing from the deemed a departure from the United United States shall become final 15 States. days after the date of service thereof (i) The term departure-control officer upon the alien, unless prior thereto the means any immigration officer as de- alien requests a hearing as hereinafter fined in the regulations of the Immi- provided. At such time as the alien is gration and Naturalization Service who served with an order temporarily pre- is designated to supervise the depar- venting his departure from the United ture of aliens, or any officer or em- States, he shall be notified in writing ployee of the United States designated concerning the provisions of this para- by the Governor of the Canal Zone, the graph, and shall be advised of his right High Commissioner of the Trust Terri- to request a hearing if entitled thereto tory of the Pacific Islands, or the gov- under § 46.4. In the case of an enemy ernor of an outlying possession of the alien, the written order preventing de- United States, to supervise the depar- parture shall become final on the date ture of aliens. of its service upon the alien. (j) The term port of departure means a (c) Any alien who seeks to depart port in the continental United States, Alaska, Guam, Hawaii, Puerto Rico or from the United States may be re- the Virgin Islands, designated as a port quired, in the discretion of the depar- of entry by the Attorney General or by ture-control officer, to be examined the Commissioner, or in exceptional under oath and to submit for official circumstances such other place as the inspection all documents, articles, and departure-control officer may, in his other property in his possession which discretion, designate in an individual are being removed from the United case, or a port in American Samoa, States upon, or in connection with, the Swains Island, the Canal Zone, or the Trust Territory of the Pacific Islands,

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alien’s departure. The departure-con- (d) Any alien who seeks to depart trol officer may permit such other per- from the United States for the purpose sons, including officials of the Depart- of organizing, directing, or partici- ment of State and interpreters, to par- pating in any rebellion, insurrection, ticipate in such examination or inspec- or violent uprising in or against the tion and may exclude from presence at United States or a country allied with such examination or inspection any the United States, or of waging war person whose presence would not fur- against the United States or its allies, ther the objectives of such examination or of destroying, or depriving the or inspection. The departure-control United States of sources of supplies or officer shall temporarily prevent the materials vital to the national defense departure of any alien who refuses to of the United States, or to the effec- submit to such examination or inspec- tiveness of the measures adopted by tion, and may, if necessary to cause the United States for its defense, or for the alien to submit to such examina- the defense of any other country allied tion or inspection, take possession of with the United States. the alien’s passport or other travel doc- (e) Any alien who is subject to reg- ument or issue a subpoena requiring istration for training and service in the the alien to submit to such examina- Armed Forces of the United States and tion or inspection. who fails to present a Registration Cer- [22 FR 10827, Dec. 27, 1957, as amended at 45 tificate (SSS Form No. 2) showing that FR 64174, Sept. 29, 1980] he has complied with his obligation to register under the Universal Military § 46.3 Aliens whose departure is Training and Service Act, as amended. deemed prejudicial to the interests (f) Any alien who is a fugitive from of the United States. justice on account of an offense punish- The departure from the United able in the United States. States of any alien within one or more (g) Any alien who is needed in the of the following categories shall be United States as a witness in, or as a deemed prejudicial to the interest of party to, any criminal case under in- the United States: vestigation or pending in a court in the (a) Any alien who is in possession of, United States: Provided, That any alien and who is believed likely to disclose who is a witness in, or a party to, any to unauthorized persons, information criminal case pending in any criminal concerning the plans, preparations, court proceeding may be permitted to equipment, or establishments for the depart from the United States with the national defense and security of the consent of the appropriate prosecuting United States. authority, unless such alien is other- (b) Any alien who seeks to depart wise prohibited from departing under from the United States to engage in, or the provisions of this part. who is likely to engage in, activities of (h) Any alien who is needed in the any kind designed to obstruct, impede, United States in connection with any retard, delay or counteract the effec- investigation or proceeding being, or tiveness of the national defense of the soon to be, conducted by any official United States or the measures adopted executive, legislative, or judicial agen- by the United States or the United Na- cy in the United States or by any gov- tions for the defense of any other coun- ernmental committee, board, bureau, try. commission, or body in the United (c) Any alien who seeks to depart States, whether national, state, or from the United States to engage in, or local. who is likely to engage in, activities (i) Any alien whose technical or sci- which would obstruct, impede, retard, entific training and knowledge might delay, or counteract the effectiveness be utilized by an enemy or a potential of any plans made or action taken by enemy of the United States to under- any country cooperating with the mine and defeat the military and de- United States in measures adopted to fensive operations of the United States promote the peace, defense, or safety of or of any nation cooperating with the the United States or such other coun- United States in the interests of collec- try. tive security.

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(j) Any alien, where doubt exists examination, it appears that further whether such alien is departing or examination may divulge information seeking to depart from the United of a confidential or security nature, States voluntarily except an alien who the special inquiry officer may, in his is departing or seeking to depart sub- discretion, preclude further examina- ject to an order issued in extradition, tion of the witness with respect to such exclusion, or deportation proceedings. matters, (5) to examine any evidence in (k) Any alien whose case does not fall possession of the Government which is within any of the categories described to be considered in the disposition of in paragraphs (a) to (j), inclusive, of the case, provided that such evidence is this section, but which involves cir- not of a confidential or security nature cumstances of a similar character ren- the disclosure of which would be preju- dering the alien’s departure prejudicial dicial to the interests of the United to the interests of the United States. States, (6) to have the time and oppor- (Sec. 215, Immigration and Nationality Act, tunity to produce evidence and wit- 66 Stat. 190, 8 U.S.C. 1185; Proc. No. 3004 of nesses on his own behalf, and (7) to rea- January 17, 1953) sonable continuances upon request, for [22 FR 10828, Dec. 27, 1957, as amended at 42 good cause shown. FR 19479, Apr. 14, 1977; 45 FR 64174, Sept. 29, (c) Any special inquiry officer who is 1980] assigned to conduct the hearing provided for in this section shall have the § 46.4 Procedure in case of alien pre- authority to: (1) Administer oaths and vented from departing from the affirmations, (2) present and receive United States. evidence, (3) interrogate, examine, and (a) Any alien, other than an enemy cross-examine under oath or affirma- alien, whose departure has been tempo- tion both the alien and witnesses, (4) rarily prevented under the provisions rule upon all objections to the intro- of § 46.2 may, within 15 days of the serv- duction of evidence or motions made ice upon him of the written order tem- during the course of the hearing, (5) porarily preventing his departure, re- take or cause depositions to be taken, quest a hearing before a special inquiry (6) issue subpoenas, and (7) take any officer. The alien’s request for a hear- further action consistent with applica- ing shall be made in writing and shall ble provisions of law, executive orders, be addressed to the district director proclamations, and regulations. having administrative jurisdiction over the alien’s place of residence. If the [22 FR 10828, Dec. 27, 1957, as amended at 27 alien’s request for a hearing is timely FR 1358, Feb. 14, 1962] made, the district director shall sched- § 46.5 Hearing procedure before spe- ule a hearing before a special inquiry cial inquiry officer. officer, and notice of such hearing shall be given to the alien. The notice of (a) The hearing before the special in- hearing shall, as specifically as secu- quiry officer shall be conducted in ac- rity considerations permit, inform the cordance with the following procedure: alien of the nature of the case against (1) The special inquiry officer shall him, shall fix the time and place of the advise the alien of the rights and privi- hearing, and shall inform the alien of leges accorded him under the provi- his right to be represented, at no ex- sions of § 46.4. pense to the Government, by counsel of (2) The special inquiry officer shall his own choosing. enter of record (i) a copy of the order (b) Every alien for whom a hearing served upon the alien temporarily pre- has been scheduled under paragraph (a) venting his departure from the United of this section shall be entitled (1) to States, and (ii) a copy of the notice of appear in person before the special in- hearing furnished the alien. quiry officer, (2) to be represented by (3) The alien shall be interrogated by counsel of his own choice, (3) to have the special inquiry officer as to the the opportunity to be heard and to matters considered pertinent to the present evidence, (4) to cross-examine proceeding, with opportunity reserved the witnesses who appear at the hear- to the alien to testify thereafter in his ing, except that if, in the course of the own behalf, if he so chooses.

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(4) The special inquiry officer shall lowed a reasonable time, not to exceed present on behalf of the Government 10 days, in which to submit representa- such evidence, including the testimony tions with respect thereto in writing. of witnesses and the certificates or (d) As soon as practicable after the written statements of Government offi- completion of the hearing and the ren- cials or other persons, as may be nec- dering of a decision by the special in- essary and available. In the event such quiry officer, the district director shall certificates or statements are received forward the entire record of the case, in evidence, the alien may request and, including the recommended decision of in the discretion of the special inquiry the special inquiry officer and any officer, be given an opportunity to in- written representations submitted by terrogate such officials or persons, by the alien, to the regional commissioner deposition or otherwise, at a time and place and in a manner fixed by the spe- having jurisdiction over his district. cial inquiry officer: Provided, That After reviewing the record, the re- when in the judgment of the special in- gional commissioner shall render a de- quiry officer any evidence relative to cision in the case, which shall be based the disposition of the case is of a con- upon the evidence in the record and on fidential or security nature the disclo- any evidence or information of a con- sure of which would be prejudicial to fidential or security nature which he the interests of the United States, such deems pertinent. Whenever any deci- evidence shall not be presented at the sion is based in whole or in part on hearing but shall be taken into consid- confidential or security information eration in arriving at a decision in the not included in the record, the decision case. shall state that such information was (5) The alien may present such addi- considered. A copy of the regional com- tional evidence, including the testi- missioner’s decision shall be furnished mony of witnesses, as is pertinent and the alien, or his attorney or represent- available. ative. No administrative appeal shall (b) A complete verbatim transcript of lie from the regional commissioner’s the hearing, except statements made decision. off the record, shall be recorded. The (e) Notwithstanding any other provi- alien shall be entitled, upon request, to sion of this part, the Administrator of the loan of a copy of the transcript, the Bureau of Security and Consular without cost, subject to reasonable Affairs referred to in section 104(b) of conditions governing its use. (c) Following the completion of the the Immigration and Nationality Act, hearing, the special inquiry officer or such other officers of the Depart- shall make and render a recommended ment of State as he may designate, decision in the case, which shall be after consultation with the Commis- governed by and based upon the evi- sioner, or such other officers of the Im- dence presented at the hearing and any migration and Naturalization Service evidence of a confidential or security as he may designate, may at any time nature which the Government may permit the departure of an individual have in its possession. The decision of alien or of a group of aliens from the the special inquiry officer shall rec- United States if he determines that ommend (1) that the temporary order such action would be in the national preventing the departure of the alien interest. If the Administrator specifi- from the United States be made final, cally requests the Commissioner to or (2) that the temporary order pre- prevent the departure of a particular venting the departure of the alien from alien or of a group of aliens, the Com- the United States be revoked. This rec- missioner shall not permit the depar- ommended decision of the special in- ture of such alien or aliens until he has quiry officer shall be made in writing consulted with the Administrator. and shall set forth the officer’s reasons (f) In any case arising under §§ 46.1 to for such decision. The alien concerned 46.7, the Administrator shall, at his re- shall at his request be furnished a copy quest, be kept advised, in as much de- of the recommended decision of the special inquiry officer, and shall be al- tail as he may indicate is necessary, of

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the facts and of any action taken or such zone, territory, or possession proposed. shall, in lieu of the regional commissioner, review the recommended deci- [22 FR 10828, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961; 27 FR 1358, Feb. 14, sion of the hearing officer, and shall 1962] render a decision in any case referred to him, basing it on evidence in the § 46.6 Departure from the Canal Zone, record and on any evidence or informa- the Trust Territory of the Pacific Is- tion of a confidential or a security na- lands, or outlying possessions of the ture which he deems pertinent. United States. [22 FR 10829, Dec. 27, 1957, as amended at 26 (a) In addition to the restrictions and FR 3069, Apr. 11, 1961] prohibitions imposed by the provisions of this part upon the departure of § 46.7 Instructions from the Adminis- aliens from the United States, any trator required in certain cases. alien who seeks to depart from the In the absence of appropriate instruc- Canal Zone, the Trust Territory of the tions from the Administrator of the Pacific Islands, or an outlying posses- Bureau of Security and Consular Af- sion of the United States shall comply fairs, departure-control officers shall with such other restrictions and prohi- not exercise the authority conferred by bitions as may be imposed by regula- § 46.2 in the case of any alien who seeks tions prescribed, with the concurrence to depart from the United States in the of the Administrator of the Bureau of status of a nonimmigrant under sec- Security and Consular Affairs and the tion 101(a)(15) (A) or (G) of the Immi- Commissioner, by the Governor of the gration and Nationality Act, or in the Canal Zone, the High Commissioner of status of a nonimmigrant under sec- the Trust Territory of the Pacific Is- tion 11(3), 11 (4), or 11(5) of the Agree- lands, or by the governor of an out- ment between the United Nations and lying possession of the United States, the United States of America regarding respectively. No alien shall be pre- the Headquarters of the United Nations vented from departing from such zone, (61 Stat. 756): Provided, That in cases of territory, or possession without first extreme urgency, where the national being accorded a hearing as provided in security so requires, a departure-con- §§ 46.4 and 46.5. trol officer may preliminarily exercise (b) The Governor of the Canal Zone, the authority conferred by § 46.2 pend- the High Commissioner of the Trust ing the outcome of consultation with Territory of the Pacific Islands, or the the Administrator, which shall be un- governor of any outlying possession of dertaken immediately. In all cases the United States shall have the au- arising under this section, the decision thority to designate any employee or of the Administrator shall be control- class of employees of the United States ling: Provided, That any decision to as hearing officers for the purpose of prevent the departure of an alien shall conducting the hearing referred to in be based upon a hearing and record as paragraph (a) of this section. The hear- prescribed in this part. ing officer so designated shall exercise the same powers, duties, and functions [26 FR 3069, Apr. 11, 1961; 26 FR 3188, Apr. 14, as are conferred upon special inquiry 1961] officers under the provisions of this part. The chief executive officer of PART 47 [RESERVED]

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