Department of State Pt. 42

for categories of nonimmigrant visas these regulations and guidance from specified in the order of the Secretary the Department. Once the sanction (or his or her designee), and pursuant under INA 243(d) is lifted, no new appli- to procedures dictated by the Depart- cation processing fee is required in ment. cases where issuance has been discon- (b) Discontinuance procedure—(1) Ap- tinued pursuant to an INA 243(d) order, plications refused or discontinued only. and consular officers in the affected Starting on the day the Secretary’s (or post must adjudicate the visa con- designee’s) order to discontinue grant- sistent with regulations and Depart- ing visas takes effect (effective date), ment guidance. Consular officers may no visas falling within the scope of the require applicants to update the visa order, as described by the order, may application forms, must conduct any be issued in the referenced country to necessary adjudicatory steps, and may an applicant who falls within the scope re-interview the applicant to deter- of the order, except as otherwise ex- mine eligibility. pressly provided in the order or related [84 FR 16612, Apr. 22, 2019] Department instructions. Beginning on the effective date, a consular officer PART 42—VISAS: DOCUMENTATION must refuse the visa if the individual is not eligible for the visa under INA OF IMMIGRANTS UNDER THE IM- 212(a), INA 221(g), or other applicable MIGRATION AND NATIONALITY law, but if the applicant is otherwise ACT, AS AMENDED eligible, must process the application by discontinuing granting, regardless Subpart A—Visa and Passport Not of when the application was filed, if the Required for Certain Immigrants applicant falls within the scope of the Sec. order and no exception applies. The ap- 42.1 Aliens not required to obtain immi- plication processing fee will not be re- grant visas. funded. The requirement to discontinue 42.2 Aliens not required to present pass- issuance may not be waived, and con- ports. tinues until the sanction is terminated Subpart B—Classification and Foreign State as described below. Chargeability (2) Geographic applicability. Visa sanc- tions under INA 243(d) only apply to 42.11 Classification symbols. visa issuance in the country that is 42.12 Rules of chargeability. sanctioned. If a consular officer has a reason to believe that a visa applicant Subpart C—Immigrants Not Subject to potentially subject to INA 243(d) sanc- Numerical Limitations of INA 201 and 202 tions is applying at a post outside the 42.21 Immediate relatives. sanctioned country to evade visa sanc- 42.22 Returning resident aliens. tions under INA 243(d) (e.g., the appli- 42.23 Certain former U.S. citizens. cant provides no credible explanation 42.24 Adoption under the Hague Convention for applying outside the country), the on Protection of Children and Co-oper- consular officer will transfer the case ation in Respect of Intercountry Adop- tion and the Intercountry Adoption Act to the consular post in the consular of 2000. district where INA 243(d) sanctions apply, review any other applicable De- Subpart D—Immigrants Subject to partment instructions, and proceed ac- Numerical Limitations cordingly. When cases are transferred to a consular district where INA 243(d) 42.31 Family-sponsored immigrants. 42.32 Employment-based preference immi- sanctions apply, the adjudication will grants. be subject to the discontinuation of 42.33 Diversity immigrants. issuance under the sanctions. (c) Termination of sanction. The De- Subpart E—Petitions partment shall notify consular officers 42.41 Effect of approved petition. in an affected country when the sanc- 42.42 Petitions for immediate relative or tion under INA 243(d) has been lifted. preference status. After notification, normal consular op- 42.43 Suspension or termination of action in erations may resume consistent with petition cases.

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Subpart F—Numerical Controls and Priority Subpart A—Visa and Passport Not Dates Required for Certain Immigrants 42.51 Department control of numerical limi- tations. § 42.1 Aliens not required to obtain im- 42.52 Post records of visa applications. migrant visas. 42.53 Priority date of individual applicants. An immigrant within any of the fol- 42.54 Order of consideration. lowing categories is not required to ob- 42.55 Reports on numbers and priority dates tain an immigrant visa: of applications on record. (a) Aliens lawfully admitted for perma- nent residence. An alien who has pre- Subpart G—Application for Immigrant viously been lawfully admitted for per- Visas manent residence and who is not re- 42.61 Place of application. quired under the regulations of the De- 42.62 Personal appearance and interview of partment of Homeland Security to applicant. present a valid immigrant visa upon re- 42.63 Definitions. turning to the United States. 42.64 Passport requirements. (b) Alien members of U.S. Armed Forces. 42.65 Supporting documents. An alien member of the U.S. Armed 42.66 Medical examination. Forces bearing military identification, 42.67 Execution of application, registration, who has previously been lawfully ad- and fingerprinting. mitted for permanent residence and is 42.68 Informal evaluation of family mem- coming to the United States under offi- bers if principal applicant precedes them. cial orders or permit of those Armed Subpart H—Issuance of Immigrant Visas Forces. (c) Aliens entering from Guam, Puerto 42.71 Authority to issue visas; visa fees. Rico, or the Virgin Islands. An alien who 42.72 Validity of visas. has previously been lawfully admitted 42.73 Procedure in issuing visas. for permanent residence who seeks to 42.74 Issuance of new, replacement, or dupli- enter the continental United States or cate visas. any other place under the jurisdiction of the United States directly from Subpart I—Refusal, Revocation, and Guam, Puerto Rico, or the Virgin Is- Termination of Registration lands of the United States. 42.81 Procedure in refusing immigrant (d) Child born after issuance of visa to visas. accompanying parent. An alien child 42.82 Revocation of visas. born after the issuance of an immi- 42.83 Termination of registration. grant visa to an accompanying parent, 42.84 Discontinuance of granting immigrant who will arrive in the United States visa pursuant to INA 243(d). with the parent, and apply for admis- AUTHORITY: 8 U.S.C. 1104 and 1182; Pub. L. sion during the period of validity of the 105–277, 112 Stat. 2681; Pub. L. 108–449, 118 visa issued to the parent. Stat. 3469; The Convention on Protection of (e) Child born of a national or lawful Children and Co-operation in Respect of permanent resident mother during her Intercountry Adoption (done at the Hague, temporary visit abroad. An alien child May 29, 1993), S. Treaty Doc. 105–51 (1998), born during the temporary visit abroad 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 of a mother who is a national or lawful U.S.C. 14901–14954 (Pub. L. 106–279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111–287, 124 Stat. permanent resident of the United 3058); 8 U.S.C. 1154 (Pub. L. 109–162, 119 Stat. States if applying for admission within 2960); 8 U.S.C. 1201 (Pub. L. 114–70, 129 Stat. 2 years of birth and accompanied by ei- 561). ther parent applying and eligible for readmission as a permanent resident SOURCE: 52 FR 42613, Nov. 5, 1987, unless upon that parent’s first return to the otherwise noted. United States after the child’s birth. EDITORIAL NOTE: Nomenclature changes to (f) American Indians born in Canada. part 42 appear at 71 FR 34522, June 15, 2006. An American Indian born in Canada and having at least 50 per centum of blood of the American Indian race.

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§ 42.2 Aliens not required to present (e) Nationals of Communist-controlled passports. countries. An alien who is a national of An immigrant within any of the fol- a Communist-controlled country and lowing categories is not required to who is unable to obtain a passport from present a passport in applying for an the government of that country, and immigrant visa: accompanying spouse and unmarried (a) Certain relatives of U.S. citizens. An son or daughter. alien who is the spouse, unmarried son (f) Alien members of U.S. Armed Forces. or daughter, or parent, of a U.S. cit- An alien who is a member of the U.S. izen, unless the alien is applying for a Armed Forces. visa in the country of which the appli- (g) Beneficiaries of individual waivers. cant is a national and the possession of (1) An alien who would be within one of a passport is required for departure. the categories described in paragraphs (b) Returning aliens previously lawfully (a) through (d) of this section except admitted for permanent residence. An that the alien is applying for a visa in alien previously lawfully admitted for a country of which the applicant is a permanent residence who is returning national and possession of a passport is from a temporary visit abroad, unless required for departure, in whose case the alien is applying for a visa in the the passport requirement has been country of which the applicant is a na- waived by the Secretary of State, as tional and the possession of a passport evidence by a specific instruction from is required for departure. the Department. (c) Certain relatives of aliens lawfully (2) An alien unable to obtain a pass- admitted for permanent residence. An port and not within any of the fore- alien who is the spouse, unmarried son going categories, in whose case the or daughter, or parent of an alien law- passport requirement imposed by fully admitted for permanent resi- § 42.64(b) or by DHS regulations has dence, unless the alien is applying for a been waived by the Secretary of Home- visa in the country of which the appli- cant is a national and the possession of land Security and the Secretary of a passport is required for departure. State as evidenced by a specific in- (d) Stateless persons. An alien who is a struction from the Department. stateless person, and accompanying [52 FR 42613, Nov. 5, 1987, as amended at 56 spouse and unmarried son or daughter. 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). IB5 ...... Self-petition Parent of U.S. Citizen ...... 204(a)(1)(A)(vii)

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IMMIGRANTS—Continued

Symbol Class Section of law

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 sec- tion 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 con- tained 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 con- tained in section 101(e) of Public Law 100–102) as amended.

Special Immigrants

SB1 ...... Returning Resident ...... 101(a)(27)(A). SC1 ...... Person Who Lost U.S. Citizenship by Marriage ...... 101(a)(27)(B) & 324(a). SC2 ...... Person Who Lost U.S. Citizenship by Serving in Foreign Armed Forces 101(a)(27)(B) & 327. SI1 ...... Certain Aliens Employed by the U.S. Government in Iraq or Afghanistan 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).

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IMMIGRANTS—Continued

Symbol Class Section of law

F23 ...... Child of F21 or F22 ...... 203(d) & 203(a)(2)(A). F24 ...... Unmarried Son or Daughter of Lawful Permanent Resident ...... 203(a)(2)(B). F25 ...... Child of F24 ...... 203(d) & 203(a)(2)(B). C21 ...... Spouse of Lawful Permanent Resident (Conditional) ...... 203(a)(2)(A) & 216. C22 ...... Child of Alien Resident (Conditional) ...... 203(a)(2)(A) & 216. C23 ...... Child of C21 or C22 (Conditional) ...... 203(d) & 203(a)(2)(A) & 216. C24 ...... Unmarried Son or Daughter of Lawful Permanent Resident (Conditional) 203(a)(2)(B) & 216. C25 ...... Child of F24 (Conditional) ...... 203(d) & 203(a)(2)(B) & 216. B21 ...... Self-petition Spouse of Lawful Permanent Resident ...... 204(a)(1)(B)(ii). B22 ...... Self-petition Child of Lawful Permanent Resident ...... 204(a)(1)(B)(iii). B23 ...... Child of B21 or B22 ...... 203(d) & 204(a)(1)(B)(ii). B24 ...... Self-petition Unmarried Son or Daughter of Lawful Permanent Resident 204(a)(1)(B)(iii). B25 ...... Child of B24 ...... 203(d) & 204(a)(1)(B)(iii).

Family 2nd Preference (Exempt from Country Limitations)

FX1 ...... Spouse of Lawful Permanent Resident ...... 202(a)(4)(A) & 203(a)(2)(A). FX2 ...... Child of Lawful Permanent Resident ...... 202(a)(4)(A) & 203(a)(2)(A). FX3 ...... Child of FX1 or FX2 ...... 202(a)(4)(A) & 203(a)(2)(A) & 203(d). CX1 ...... Spouse of Lawful Permanent Resident (Conditional) ...... 202(a)(4)(A) & 203(a)(2)(A) & 216. CX2 ...... Child of Lawful Permanent Resident (Conditional) ...... 202(a)(4)(A) & 203(a)(2)(A) & 216. CX3 ...... Child of CX1 or CX2 (Conditional) ...... 202(a)(4)(A) & 203(a)(2)(A) & 203(d) & 216. BX1 ...... Self-petition Spouse of Lawful Permanent Resident ...... 204(a)(1)(B)(ii). BX2 ...... Self-petition Child of Lawful Permanent Resident ...... 204(a)(1)(B)(iii). BX3 ...... Child of BX1 or BX2 ...... 204(a)(1)(B)(ii) & 203(d).

Family 3rd Preference

F31 ...... Married Son or Daughter of U.S. Citizen ...... 203(a)(3). F32 ...... Spouse of F31 ...... 203(d) & 203(a)(3). F33 ...... Child of F31 ...... 203(d) & 203(a)(3). C31 ...... Married Son or Daughter of U.S. Citizen (Conditional) ...... 203(a)(3) & 216. C32 ...... Spouse of C31 (Conditional) ...... 203(d) & 203(a)(3) & 216. C33 ...... Child of C31 (Conditional) ...... 203(d) & 203(a)(3) & 216. B31 ...... Self-petition Married Son or Daughter of U.S. Citizen ...... 204(a)(1)(A)(iv) & 203(a)(3). B32 ...... Spouse of B31 ...... 203(d), 204(a)(1)(A)(iv) & 203(a)(3). B33 ...... Child of B31 ...... 203(d), 204(a)(1)(A)(iv) & 203(a)(3).

Family 4th Preference

F41 ...... Brother or Sister of U.S. Citizen at Least 21 Years of Age ...... 203(a)(4). F42 ...... Spouse of F41 ...... 203(d) & 203(a)(4). F43 ...... Child of F41 ...... 203(d) & 203(a)(4).

Employment-Based Preferences Employment 1st Preference (Priority Workers)

E11 ...... Alien with Extraordinary Ability ...... 203(b)(1)(A). E12 ...... Outstanding Professor or Researcher ...... 203(b)(1)(B). E13 ...... Multinational Executive or Manager ...... 203(b)(1)(C). E14 ...... Spouse of E11, E12, or E13 ...... 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). E15 ...... Child of E11, E12, or E13 ...... 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C).

Employment 2nd Preference (Professionals Holding Advanced Degrees or Persons of Exceptional Ability)

E21 ...... Professional Holding Advanced Degree or Alien of Exceptional Ability ... 203(b)(2). E22 ...... Spouse of E21 ...... 203(d) & 203(b)(2). E23 ...... Child of E21 ...... 203(d) & 203(b)(2).

Employment 3rd Preference (Skilled Workers, Professionals, and Other Workers)

E31 ...... Skilled Worker ...... 203(b)(3)(A)(i). E32 ...... Professional Holding Baccalaureate Degree ...... 203(b)(3)(A)(ii). E34 ...... Spouse of E31 or E32 ...... 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). E35 ...... Child of E31 or E32 ...... 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). EW3 ...... Other Worker (Subgroup Numerical Limit) ...... 203(b)(3)(A)(iii). EW4 ...... Spouse of EW3 ...... 203(d) & 203(b)(3)(A)(iii).

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IMMIGRANTS—Continued

Symbol Class Section of law

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 or- ganization. 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). 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.

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IMMIGRANTS—Continued

Symbol Class Section of law

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.

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, as amended at 79 FR 32482, June 5, 2014]

§ 42.12 Rules of chargeability. panying or following to join the parent, in accordance with INA 202(b)(1). (a) Applicability. An immigrant shall be charged to the numerical limitation (c) Exception for spouse. If necessary for the foreign state or dependent area to prevent the separation of husband of birth, unless the case falls within and wife, an immigrant spouse, includ- one of the exceptions to the general ing a spouse born in a dependent area, rule of chargeability provided by INA may be charged to a foreign state to 202(b) and paragraphs (b) through (e) of which a spouse is chargeable if accom- this section to prevent the separation panying or following to join the spouse, of families or the alien is classifiable in accordance with INA 202(b)(2). under: (d) Exception for alien born in the (1) INA 201(b); United States. An immigrant who was (2) INA 101(a)(27) (A) or (B); born in the United States shall be (3) Section 112 of Public Law 101–649; charged to the foreign state of which (4) Section 124 of Public Law 101–649; the immigrant is a citizen or subject. If (5) Section 132 of Public Law 101–649; not a citizen or subject of any country, (6) Section 134 of Public Law 101–649; the alien shall be charged to the for- or eign state of last residence as deter- (7) Section 584(b)(1) as contained in mined by the consular officer, in ac- section 101(e) of Public Law 100–202. cordance with INA 202(b)(3). (b) Exception for child. If necessary to (e) Exception for alien born in foreign prevent the separation of a child from state in which neither parent was born or the alien parent or parents, an immi- had residence at time of alien’s birth. An grant child, including a child born in a alien who was born in a foreign state, dependent area, may be charged to the as defined in § 40.1, in which neither same foreign state to which a parent is parent was born, and in which neither chargeable if the child is accom- parent had a residence at the time of

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the applicant’s birth, may be charged (c) Child of a U.S. citizen victim of ter- to the foreign state of either parent as rorism. The child of a U.S. citizen slain provided in INA 202(b)(4). The parents in the terrorist actions of September of such an alien are not considered as 11, 2001, shall retain the status of an having acquired a residence within the immediate relative child (regardless of meaning of INA 202(b)(4), if, at the time changes in age or marital status) if the of the alien’s birth within the foreign child files a petition for such status state, the parents were visiting tempo- within two years of the citizen’s death rarily or were stationed there in con- pursuant to section 423(a)(2) of Public nection with the business or profession Law 107–56, and the consular officer has and under orders or instructions of an received an approved petition accord- employer, principal, or superior au- ing such status or official notification thority foreign to such foreign state. of such approval. [52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49681, Oct. 1, 1991] [56 FR 49676, Oct. 1, 1991, as amended at 64 FR 55419, Oct. 13, 1999; 67 FR 1415, Jan. 11, 2002]

Subpart C—Immigrants Not Sub- § 42.22 Returning resident aliens. ject to Numerical Limitations of INA 201 and 202 (a) Requirements for returning resident status. An alien shall be classifiable as a special immigrant under INA SOURCE: 56 FR 49676, Oct. 1, 1991, unless 101(a)(27)(A) if the consular officer is otherwise noted. satisfied from the evidence presented § 42.21 Immediate relatives. that: (a) Entitlement to status. An alien who (1) The alien had the status of an is a spouse or child of a United States alien lawfully admitted for permanent citizen, or a parent of a U.S. citizen at residence at the time of departure from least 21 years of age, shall be classified the United States; as an immediate relative under INA (2) The alien departed from the 201(b) if the consular officer has re- United States with the intention of re- ceived from DHS an approved Petition turning and has not abandoned this in- to Classify Status of Alien Relative for tention; and Issuance of an Immigrant Visa, filed on (3) The alien is returning to the the alien’s behalf by the U.S. citizen United States from a temporary visit and approved in accordance with INA abroad and, if the stay abroad was pro- 204, and the officer is satisfied that the tracted, this was caused by reasons be- alien has the relationship claimed in yond the alien’s control and for which the petition. An immediate relative the alien was not responsible. shall be documented as such unless the (b) Documentation needed. Unless the U.S. citizen refuses to file the required consular officer has reason to question petition, or unless the immediate rel- the legality of the alien’s previous ad- ative is also a special immigrant under mission for permanent residence or the INA 101(a)(27) (A) or (B) and not subject alien’s eligibility to receive an immi- to any numerical limitation. grant visa, only those records and doc- (b) Spouse of a deceased U.S. citizen. uments required under INA 222(b) The spouse of a deceased U.S. citizen, and each child of the spouse, will be en- which relate to the period of residence titled to immediate relative status in the United States and the period of after the date of the citizen’s death the temporary visit abroad shall be re- provided the spouse or child meets the quired. If any required record or docu- criteria of INA 201(b)(2)(A)(i) or of sec- ment is unobtainable, the provisions of tion 423(a)(1) of Public Law 107–56 (USA § 42.65(d) shall apply. Patriot Act) and the Consular Officer (c) Returning resident alien originally has received an approved petition from admitted under the Act of December 28, the DHS which accords such status, or 1945. An alien admitted into the United official notification of such approval, States under Section 1 of the Act of and the Consular Officer is satisfied December 28, 1945 (‘‘GI Brides Act’’) that the alien meets those criteria. shall not be refused an immigrant visa

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after a temporary absence abroad sole- for whom classification is sought under ly because of a mental or physical de- INA section 101(b)(1)(G), unless the Sec- fect or defects that existed at the time retary of State has personally waived of the original admission. any requirement of the IAA or these regulations in a particular case in the [56 FR 49676, Oct. 1, 1991, as amended at 63 FR 48578, Sept. 11, 1998] interests of justice or to prevent grave physical harm to the child, to the ex- § 42.23 Certain former U.S. citizens. tent consistent with the Convention. (a) Women expatriates. An alien (d) An alien child shall be classifiable woman, regardless of marital status, under INA section 101(b)(1)(G) only if, shall be classifiable as a special immi- before the child is adopted or legal cus- grant under INA 101(a)(27)(B) if the tody for the purpose of adoption is consular officer is satisfied by appro- granted, a petition for the child has priate evidence that she was formerly a been received and provisionally ap- U.S. citizen and that she meets the re- proved by a DHS officer or, where au- quirements of INA 324(a). thorized by DHS, by a consular officer, (b) Military expatriates. An alien shall and a visa application for the child has be classifiable as a special immigrant been received and annotated in accord- under INA 101(a)(27)(B) if the consular ance with paragraph (h) of this section officer is satisfied by appropriate evi- by a consular officer. No alien child dence that the alien was formerly a shall be issued a visa pursuant to INA U.S. citizen and that the alien lost citi- section 101(b)(1)(G) unless the petition zenship under the circumstances set and visa application are finally ap- forth in INA 327. proved. (e) If a petition for a child under INA § 42.24 Adoption under the Hague Con- section 101(b)(1)(G) is properly filed vention on Protection of Children with a consular officer, the consular of- and Co-operation in Respect of ficer will review the petition for the Intercountry Adoption and the purpose of determining whether it can Intercountry Adoption Act of 2000. be provisionally approved in accord- (a) Except as described in paragraph ance with applicable DHS require- (n), for purposes of this section, the ments. If a properly completed applica- definitions in 22 CFR 96.2 apply. tion for waiver of inadmissibility is re- (b) On or after the Convention effec- ceived by a consular officer at the tive date, as defined in 22 CFR 96.17, a same time that a petition for a child child habitually resident in a Conven- under INA section 101(b)(1)(G) is re- tion country who is adopted by a ceived, provisional approval cannot United States citizen deemed to be ha- take place unless the waiver is ap- bitually resident in the United States proved, and therefore the consular offi- in accordance with applicable DHS reg- cer, pursuant to 8 CFR 204.313(i)(3) and ulations must qualify for visa status 8 CFR 212.7, will forward the petition under the provisions of INA section and the waiver application to DHS for 101(b)(1)(G) as provided in this section. decisions as to approval of the waiver 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 tion or grant of legal custody will be in

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compliance with the Convention. If the shall forward the petition to DHS pur- consular officer knows or has reason to suant to that section. believe the petition is not provision- (i) If the petition has been provision- ally approvable, the consular officer ally approved and the visa application shall forward it to DHS pursuant to 8 has been annotated in accordance with CFR 204.313(i)(3). subparagraph (h), the consular officer (g) After a petition has been provi- shall notify the country of origin that sionally approved, a completed visa ap- the steps required by Article 5 of the plication form, any supporting docu- Convention have been taken. ments required pursuant to § 42.63 and (j) After the consular officer has re- § 42.65, and any required fees must be ceived appropriate notification from submitted to the consular officer in ac- the country of origin that the adoption cordance with § 42.61 for a provisional or grant of legal custody has occurred review of visa eligibility. The require- and any remaining requirements estab- ments in §§ 42.62, 42.64, 42.66 and 42.67 lished by DHS or §§ 42.61 through 42.67 shall also be satisfied to the extent have been fulfilled, the consular offi- practicable. cer, if satisfied that the requirements of the IAA and the Convention have (h) A consular officer shall provision- been met with respect to the adoption ally determine visa eligibility based on or grant of legal custody, shall affix to a review of the visa application, sub- the adoption decree or grant of legal mitted supporting documents, and the custody a certificate so indicating. provisionally approved petition. In so This certificate shall constitute the doing, the consular officer shall follow certification required by IAA section all procedures required to adjudicate 301(a) and INA section 204(d)(2). For the visa to the extent possible in light purposes of determining whether to of the degree of compliance with §§ 42.62 issue a certificate, the fact that a con- through 42.67. If it appears, based on sular officer notified the country of or- the available information, that the igin pursuant to paragraph (i) of this child would not be ineligible under INA section that the steps required by Arti- section 212 or other applicable law to cle 5 of the Convention had been taken receive a visa, the consular officer and the fact that the country of origin shall so annotate the visa application. has provided appropriate notification If evidence of an ineligibility is discov- that the adoption or grant of legal cus- ered during the review of the visa ap- tody has occurred shall together con- plication, and the ineligibility was not stitute prima facie evidence of compli- waived in conjunction with provisional ance with the Convention and the IAA. approval of the petition, the prospec- (k) If the consular officer is unable to tive adoptive parents shall be informed issue the certificate described in para- of the ineligibility and given an oppor- graph (j) of this section, the consular tunity to establish that it will be over- officer shall notify the country of ori- come. If the visa application cannot be gin of the consular officer’s decision. 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

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the country of origin that the visa has ficial notification of such an approval, been refused. and the consular officer is satisfied (n) Notwithstanding paragraphs (d) that the alien has the relationship to through (m) of this section, an alien the petitioner indicated in the peti- described in paragraph (n)(1) of this tion. In the case of a petition according section may qualify for visa status an alien status under INA 203(a) (1) or under INA section 101(b)(1)(G)(iii) with- (3) or status as an unmarried son or out meeting the requirements set forth daughter under INA 203(a)(2), the peti- in paragraphs (d) through (m) of this tioner must be a ‘‘parent’’ as defined in section. INA 101(b)(2) and 22 CFR 40.1. In the (1) Per Section 4(b) of the Inter- case of a petition to accord an alien country Adoption Simplification Act, status under INA 203(a)(4) filed on or Public Law 111–287 (IASA), an alien after January 1, 1977, the petitioner otherwise described in INA section must be at least twenty-one years of 101(b)(1)(G)(iii) who attained the age of age. 18 on or after April 1, 2008 shall be (b) Entitlement to derivative status. deemed to meet the age requirement Pursuant to INA 203(d), and whether or imposed by INA section not named in the petition, the child of 101(b)(1)(G)(iii)(III), provided that a pe- a family-sponsored first, second, third tition is filed for such child in accord- or fourth preference immigrant or the ance with DHS requirements not later spouse of a family-sponsored third or than November 30, 2012. fourth preference immigrant, if not (2) For any alien described in para- otherwise entitled to an immigrant graph (n)(1) of this section, the ‘‘com- status and the immediate issuance of a petent authority’’ referred to in INA visa, is entitled to a derivative status section 101(b)(1)(G)(i)(V)(aa) is a court or governmental agency of a foreign corresponding to the classification and country of origin having jurisdiction priority date of the beneficiary of the and authority to make decisions in petition. matters of child welfare, including [56 FR 49676, Oct. 1, 1991, as amended at 61 FR adoption. If the competent authority 1836, Jan. 24, 1996] over matters of child welfare no longer has jurisdiction or authority over the § 42.32 Employment-based preference alien due to his or her age, then the immigrants. passport issuing authority of the coun- Aliens subject to the worldwide level try of origin may be considered the specified in section 201(d) for employ- competent authority for the purposes ment-based immigrants in a fiscal year of INA section 101(b)(1)(G)(i)(V)(aa). shall be allotted visas as indicated [72 FR 61305, Oct. 30, 2007, as amended at 76 below. FR 67363, Nov. 1, 2011; 78 FR 32990, June 3, (a) First preference—Priority workers— 2013] (1) Entitlement to status. An alien shall be classifiable as an employment-based Subpart D—Immigrants Subject to first preference immigrant under INA Numerical Limitations 203(b)(1) if the consular office has re- ceived from DHS a Petition for Immi- SOURCE: 56 FR 49676, Oct. 1, 1991, unless grant Worker approved in accordance otherwise noted. with INA 204 to accord the alien such Preference status, or official notifica- § 42.31 Family-sponsored immigrants. tion of such an approval, and the con- (a) Entitlement to status. An alien sular officer is satisfied that the alien shall be classifiable as a family-spon- is within one of the classes described in sored immigrant under INA 203(a) (1), INA 203(b)(1). (2), (3) or (4) if the consular officer has (2) Entitlement to derivative status. received from DHS a Petition to Clas- Pursuant to INA 203(d), and whether or sify Status of Alien Relative for not named in the petition, the child or Issuance of Immigrant Visa approved spouse of an employment-based first in accordance with INA 204 to accord preference immigrant, if not otherwise the alien such preference status, or of- entitled to an immigrant status and

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the immediate issuance of a visa, is en- classifiable under INA 203(b)(4) as a titled to a derivative status cor- special immigrant described in INA responding to the classification and 101(a)(27)(C) if: priority date of the beneficiary of the (A) The consular officer has received petition. a petition approved by DHS to accord (b) Second preference—Professionals such classification, or an official noti- with advanced degrees or persons of ex- fication of such approval; and ceptional ability—(1) Entitlement to sta- (B) The consular officer is satisfied tus. An alien shall be classifiable as an from the evidence presented that the employment-based second preference alien qualifies under that section; or immigrant under INA 203(b)(2) if the (C) The consular officer is satisfied consular officer has received from DHS the alien is the spouse or child of a re- a Petition for Immigrant Worker ap- ligious worker so classified and is ac- proved in accordance with INA 204 to companying or following to join the accord the alien such preference status, principal alien. or official notification of such an ap- (ii) Timeliness of application. An immi- proval, and the consular officer is sat- grant visa issued under INA 203(b)(4) to isfied that the alien is within one of an alien described in INA 101(a)(27)(C), the classes described in INA 203(b)(2). other than a minister of religion, who (2) Entitlement to derivative status. qualifies as a ‘‘religious worker’’ as de- Pursuant to INA 203(d), and whether or fined in 8 CFR 204.5, shall bear the not named in the petition, the child or usual validity except that in no case spouse of an employment-based second shall it be valid later than September preference immigrant, if not otherwise 30, 2003. entitled to an immigrant status and (2) Certain U.S. Government employ- the immediate issuance of a visa, is en- ees—(i) General. (A) An alien is classifi- titled to a derivative status cor- able under INA 203(b)(4) as a special im- responding to the classification and migrant described in INA 101(a)(27)(D) priority date of the beneficiary of the if a petition to accord such status has petition. been approved by the Secretary of (c) Third preference—Skilled workers, State. An alien may file such a petition professionals, other workers—(1) Entitle- only after, but within one year of, noti- ment to status. An alien shall be classi- fication from the Department that the fiable as an employment-based third Secretary of State has approved a rec- preference immigrant under INA ommendation from the Principal Offi- 203(b)(3) if the consular officer has re- cer that special immigrant status be ceived from DHS a Petition for Immi- accorded the alien in exceptional cir- grant Worker approved in accordance cumstances and has found it in the na- with INA 204 to accord the alien such tional interest so to do. preference status, or official notifica- (B) An alien may qualify as a special tion of such an approval, and the con- immigrant under INA 101(a)(27)(D) on sular officer is satisfied that the alien the basis of employment abroad with is within one of the classes described in more than one agency of the U.S. Gov- INA 203(b)(3). ernment provided the total amount of (2) Entitlement to derivative status. full-time service with the U.S. Govern- Pursuant to INA 203(d), and whether or ment is 15 years or more. not named in the petition, the child or (C) Pursuant to INA 203(d), and spouse of an employment-based third whether or not named in the petition, preference immigrant, if not otherwise the spouse or child of an alien classi- entitled to an immigrant status and fied under INA 203(b)(4), if not entitled the immediate issuance of a visa, is en- to an immigrant status and the imme- titled to a derivative status cor- diate issuance of a visa, is entitled to a responding to the classification and derivative status corresponding to the priority date of the beneficiary of the classification and priority date of the petition. beneficiary of the petition. (d) Fourth preference—Special immi- (ii) Special immigrant status for certain grants—(1) Religious workers—(i) Classi- aliens employed at the United States mis- fication based on qualifications under sion in Hong Kong. (A) An alien em- INA 101(A)(27)(C). An alien shall be ployed at the United States Consulate

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General in Hong Kong under the au- are such that an extension of the valid- thority of the Chief of Mission or an ity of the Secretary’s approval of spe- alien employed pursuant to section 5913 cial immigrant status or of the peti- of title 5 of the United States Code is tion would be in the national interest, eligible for classification under INA the principal officer shall recommend 203(b)(4) as a special immigrant de- to the Secretary of State that such va- scribed in INA 101(a)(27)(D) provided: lidity be extended for not more than (1) The alien has performed faithfully one additional year. for a total of three years or more; (vi) Fees. The Secretary of State shall (2) The alien is a member of the im- establish a fee for the filing of a peti- mediate family of an employee entitled tion to accord status under INA to such special immigrant status; and 203(b)(4) which shall be collected fol- (3) The welfare of the alien or the lowing notification that the Secretary family member is subject to clear has approved status as a special immi- threat due directly to the employee’s grant under INA 101(a)(27)(D) for the employment with the United States alien. Government or under a United States (vii) Delegation of authority to approve Government official; and petitions. The authority to approve pe- (4) Subsequent to the Secretary’s ap- titions to accord status under INA proval of the Principal Officer’s rec- 203(b)(4) to an alien described in INA ommendation and finding it in the na- 101(a)(27)(D) is hereby delegated to the tional interest to do so, but within one chief consular officer at the post of rec- year thereof, the alien has filed a peti- ommendation or, in the absence of the tion for status under INA 203(b)(4) consular officer, to any alternate ap- which the Secretary has approved. proving officer designated by the prin- (B) An alien desiring to benefit from cipal officer. Such authority may not this provision must seek such status be exercised until the Foreign Service not later than January 1, 2002. post has received formal notification of (C) For purposes of § 42.32(d)(2)(ii)(A), the Secretary’s approval of special im- the term member of the immediate family migrant status for the petitioning means the definition (as of November alien. 29, 1990) in Volume 6 of the Foreign Af- fairs Manual, section 117k, of a relative (3) Panama Canal employees—(i) Enti- who has been living with the employee tlement to status. An alien who is sub- in the same household. ject to the numerical limitations speci- (iii) Priority date. The priority date of fied in section 3201(c) of the Panama an alien seeking status under INA Canal Act of 1979, Public Law 96–70, is 203(b)(4) as a special immigrant de- classifiable under INA 203(b)(4) as a scribed in INA 101(a)(27)(D) shall be the special immigrant described in INA date on which the petition to accord 101(a)(27) (E), (F) or (G) if the consular such classification is filed. The filing officer has received a petition approved date of the petition is that on which a by DHS to accord such classification, properly completed form and the re- or official notification of such an ap- quired fee are accepted by a Foreign proval, and the consular officer is sat- Service post. isfied that the alien is within one of (iv) Petition validity. Except as noted the classes described in INA 101(a)(27) in this paragraph, the validity of a pe- (E), (F), or (G). tition approved for classification under (ii) Entitlement to derivative status. INA 203(b)(4) shall be six months be- Pursuant to INA 203(d), and whether or yond the date of the Secretary of not named in the petition, the spouse State’s approval thereof or the avail- or child of any alien classified under ability of a visa number, whichever is INA 203(b)(4) as a special immigrant later. In cases described in qualified under this section, if not oth- § 42.32(d)(2)(ii), the validity of the peti- erwise entitled to an immigrant status tion shall not in any case extend be- and the immediate issuance of a visa, yond January 1, 2002. is entitled to a derivative status cor- (v) Extension of petition validity. If the responding to the classification and principal officer of a post concludes priority date of the beneficiary of the that circumstances in a particular case petition.

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(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). such classification, or official notifica- (ii) Entitlement to derivative status. tion of such approval, and the consular Pursuant to INA 203(d), and whether or officer is satisfied from the evidence not named in the petition, the spouse presented that the alien is within one or child of any alien classified under of the classes described therein. INA 203(b)(4) as a special immigrant (ii) Timeliness of application. An alien qualified under this section, if not oth- accorded status under INA 203(b)(4) be- erwise entitled to an immigrant status cause of qualification under INA and the immediate issuance of a visa, 101(a)(27)(I) or (L) must appear for the is entitled to derivative status cor- final visa interview and issuance of the responding to the classification and immigrant visa within six months of priority date of the beneficiary of the establishing entitlement to status. petition. (6) Certain juvenile court dependents. (9) Certain victims of the September 11, An alien shall be classifiable under INA 2001 terrorist attacks—(i) Entitlement to 203(b)(4) as a special immigrant defined status. An alien shall be classifiable as in INA 101(a)(27)(J) if the consular offi- a special immigrant under INA 203(b)(4) cer has received from DHS an approved as specified in section 421 of Public petition to accord such status, or an of- Law 107–56, if: ficial notification of such an approval, (A) The consular officer has received and the consular officer is satisfied the a petition approved by the DHS to ac- alien is within the class described in cord such classification, or official no- that section. tification of such an approval, and the (7) Certain members of the United States consular officer is satisfied from the Armed Forces recruited abroad—(i) Enti- evidence presented that the alien is en- tlement to status. An alien is classifiable titled to that classification; or under INA 203(b)(4) as a special immi- (B) The alien is the spouse or child of grant described in INA 101(a)(27)(K) if an alien so classified in paragraph the consular office has received a peti- (d)(9)(i) of this section and is accom- tion approved by the DHS to accord panying or following to join the prin- such classification, or official notifica- cipal alien. tion of such an approval, and the con- (ii) Ineligibility exemption. An alien sular officer is satisfied from the evi- classified under paragraph (d)(9)(i) of dence presented that the alien is with- this section shall not be subject to the in the class described in INA provisions of INA 212(a)(4). 101(a)(27)(K). (iii) Priority date. Aliens entitled to (ii) Entitlement to derivative status. status under paragraph (d)(9)(i) of this Pursuant to INA 203(d), and whether or section shall be assigned a priority

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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 (2) Entitlement to derivative status. Visa Programs occurring in subsequent Pursuant to INA 203(d), and whether or fiscal years, consular officers must use not named in the petition, the spouse the Department of Labor’s O*Net On or child of an employment-based fifth Line to determine qualifying work ex- preference immigrant, if not otherwise perience. entitled to an immigrant status and (4) Limitation on number of petitions the immediate issuance of a visa, is en- per year. No more than one petition titled to a derivative status cor- may be submitted by or on behalf of, responding to the classification and any alien for consideration during any priority date of the beneficiary of the single fiscal year. If two or more peti- petition. tions for any single fiscal year are sub- mitted by, or on behalf of, any alien, [56 FR 49676, Oct. 1, 1991, as amended at 56 FR 51172, Oct. 10, 1991; 56 FR 55077, Oct. 24, 1991; all such petitions will be void pursuant 60 FR 35839, July 12, 1995; 63 FR 4394, Jan. 29, to INA 204(a)(1)(I)(i) and the alien by or 1998; 63 FR 68393, Dec. 11, 1998; 65 FR 80745, for whom the petition has been sub- Dec. 22, 2000; 66 FR 15350, Mar. 19, 2001; 68 FR mitted will not be eligible for consider- 24639, May 8, 2003] ation for diversity visa issuance during the fiscal year in question. § 42.33 Diversity immigrants. (5) Northern Ireland. For purposes of (a) General—(1) Eligibility to compete determining eligibility to file a peti- for consideration under section 203(c). An tion for consideration under INA 203(c) alien will be eligible to compete for for a fiscal year, the districts com- consideration for visa issuance under prising that portion of the United INA 203(c) during a fiscal year only if Kingdom of Great Britain and North- he or she is a native of a low-admission ern Ireland, known as ‘‘Northern Ire- foreign state, as determined by the land’’, will be treated as a separate for- Secretary of Homeland Security pursu- eign state. The districts comprising ant to INA 203(c)(1)(E), with respect to ‘‘Northern Ireland’’ are Antrim, Ards, the fiscal year in question; and if he or Armagh, Ballymena, Ballymoney, she has at least a high school edu- Banbridge, Belfast, Carrickfergus, cation or its equivalent or, within the Castlereagh, Coleraine, Cookstown, five years preceding the date of appli- Craigavon, Down, Dungannon, Fer- cation for a visa, has two years of work managh, Larne, Limavady, Lisburn, experience in an occupation requiring Londonderry, Magherafelt, Moyle, at least two years training or experi- Newry and Mourne, Newtownabbey, ence. The eligibility for a visa under North Down, Omagh, and Strabane. INA 203(c) ceases at the end of the fis- (b) Petition requirement. An alien cal year in question. Under no cir- claiming to be entitled to compete for

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consideration under INA 203(c) must tioner’s valid, unexpired passport, file a petition with the Department of country or authority of passport State for such consideration. At the issuance, and expiration date, unless alien petitioner’s request, another per- the petitioner would be exempt from son may file a petition on behalf of the the passport requirement pursuant to alien. The petition will consist of an 22 CFR 42.2(d), (e), or (g)(2). electronic entry form that the alien pe- (ix) Failure to accurately include any titioner or a person acting on the be- information or documents required by half of the alien petitioner must com- paragraphs (b)(1)(i) through (viii) or plete on-line and submit to the Depart- paragraph (b)(2) of this section will re- ment of State via a Web site estab- sult in disqualification of the entry for lished by the Department of State for that fiscal year. the purpose of receiving such petitions. (2) Requirements for photographs. The The Department will specify the ad- petition will also require inclusion of a dress of the Web site prior to the com- photograph of the petitioner and of his mencement of the 30-day or greater pe- or her spouse and all unmarried chil- riod described in paragraph (b)(3) of dren under the age of 21 years. The this section using the notice procedure photographs must meet the following prescribed in that paragraph. specifications: (1) Information to be provided in the pe- (i) A digital image of the applicant tition. The website will include the from either a digital camera source or electronic entry form mentioned in a scanned photograph via scanner. If paragraph (b) of this section. The entry scanned, the original photographic form will require the person com- print must have been 2″ by 2″ (50mm × pleting the form to provide the fol- 50mm). Scanner hardware and digital lowing information, typed in the image resolution requirements will be Roman alphabet, regarding the alien further specified in the public notice petitioner: described in paragraph (b)(3) of this (i) The petitioner’s full name; section. (ii) The petitioner’s date and place of (ii) The image must be in the Joint birth (including city and country, prov- Photographic Experts Group (JPEG) ince or other political subdivision of File Interchange Format (JFIF) for- the country); mat. (iii) The petitioner’s gender; (iii) The image must be in color. (iv) The country of which the peti- (iv) The image must have been taken tioner claims to be a native, if other no more than six months prior to the than the country of birth; date of the petition submission. (v) The name[s], date[s] and place[s] (v) The person being photographed of birth and gender of the petitioner’s must be directly facing the camera spouse and child[ren], if any, (including with the head neither tilted up, down, legally adopted and step-children), re- or to the side. The head must cover gardless of whether or not they are liv- about 50% of the area of the photo- ing with the petitioner or intend to ac- graph. company or follow to join the peti- (vi) The photograph must be taken tioner should the petitioner immigrate with the person in front of a neutral, to the United States pursuant to INA light-colored background. Photos 203(c), but excluding a spouse or a taken with very dark or patterned, child[ren] who is already a U.S. citizen busy backgrounds will not be accepted. or U.S. lawful permanent resident; (vii) The person’s face must be in (vi) A current mailing address for the focus. petitioner; (viii) The person in the photograph (vii) The location of the consular of- must not wear eyeglasses, sunglasses, fice nearest to the petitioner’s current or other paraphernalia that obstruct residence or, if in the United States, the view of the face. nearest to the petitioner’s last foreign (ix) A photograph with the person residence prior to entry into the wearing a head covering or a hat is United States; only acceptable if the covering or hat (viii) The unique serial or issuance is worn specifically due to that per- number associated with the peti- son’s religious beliefs, and even then,

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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 arate numerical sequence established maintain the following information for each regional area specified in INA concerning petitioners to whom immi- 203(c)(1)(F). Upon completion of the grant visas are issued under INA 203(c): numbering of all petitions, all numbers (i) Age; assigned for each region will be sepa- (ii) Country of birth; rately rank-ordered at random by a (iii) Marital status; computer using standard computer (iv) Sex; software for that purpose. The Depart- (v) Level of education; and ment will then select in the rank or- (vi) Occupation and level of occupa- ders determined by the computer pro- tional qualification. gram a quantity of petitions for each (2) The Department will not maintain region estimated to be sufficient to en- the names of visa recipients in connec- sure, to the extent possible, usage of tion with this information and the in- all immigrant visas authorized under formation will be compiled and main- INA 203(c) for the fiscal year in ques- tained in such form that the identity of tion. The Department will consider pe- visa recipients cannot be determined titions selected in this manner to have therefrom. been approved for the purposes of this (i) Diversity Visa Lottery fee. Consular section. officers shall collect, or ensure the col- (d) Validity of approved petitions. A pe- lection of, the Diversity Visa Lottery tition approved pursuant to paragraph fee from those persons who apply for a

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diversity immigrant visa, described in not entitled, for some other reason, to INA 203(c), after being selected by the the status approved. diversity visa lottery program. The Di- (b) Termination of action. (1) The con- versity Visa Lottery fee, as prescribed sular officer shall terminate action in by the Secretary of State, is set forth a petition case upon receipt from DHS in the Schedule of Fees, 22 CFR 22.1. of notice of revocation of the petition [68 FR 49355, Aug. 18, 2003, as amended at 73 in accordance with DHS regulations. FR 7670, Feb. 11, 2008; 77 FR 18914, Mar. 29, (2) The consular officer shall termi- 2012; 81 FR 63695, Sept. 16, 2016; 84 FR 25991, nate action in a petition case subject June 5, 2019] to the provisions of INA 203(g) in ac- cordance 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 grant to an alien the immediate rel- and Priority Dates ative 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. The approval of a petition does not re- (a) Centralized control. Centralized lieve the alien of the burden of estab- control of the numerical limitations on lishing to the satisfaction of the con- immigration specified in INA 201, 202, sular officer that the alien is eligible in and 203 is established in the Depart- all respects to receive a visa. ment. The Department shall limit the number of immigrant visas that may [56 FR 49682, Oct. 1, 1991] be issued and the number of adjust- ments of status that may be granted to § 42.42 Petitions for immediate rel- ative or preference status. aliens subject to these numerical limi- 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 officer has received a petition filed and from authorizations for preceding approved in accordance with INA 204 or months in the same fiscal year. official notification of such filing and (b) Allocation of numbers. Within the approval. foregoing limitations, the Department [56 FR 49682, Oct. 1, 1991] shall allocate immigrant visa numbers for use in connection with the issuance § 42.43 Suspension or termination of of immigrant visas and adjustments action in petition cases. based on the chronological order of the (a) Suspension of action. The consular priority dates of visa applicants classi- officer shall suspend action in a peti- fied under INA 203 (a) and (b) reported tion case and return the petition, with by consular officers pursuant to a report of the facts, for reconsider- § 42.55(b) and of applicants for adjust- ation by DHS if the petitioner requests ment of status as reported by officers suspension of action, or if the officer of the DHS, taking into account the re- knows or has reason to believe that ap- quirements of INA 202(e) in such alloca- proval of the petition was obtained by tions. In the case of applicants under fraud, misrepresentation, or other un- INA 203(c), visa numbers shall be allo- lawful means, or that the beneficiary is cated within the limitation for each

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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 whenever the consular officer is (2) An immigrant does not apply for satisfied—or receives evidence—that admission to the United States before the alien is within the criteria set the expiration of the validity of the forth in paragraph (b) of this section. visa; (2) A separate record shall be made of (3) An alien having a preference im- family members entitled to derivative migrant visa is found not to be a pref- immigrant status whenever the con- erence immigrant; or sular officer determines that a spouse (4) An immigrant visa is revoked pur- or child is chargeable to a different for- suant to § 42.82. eign state or other numerical limita- tion than the principal alien. The pro- [56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 63 FR 48578, Sept. 11, visions of INA 202(b) are to be applied 1998] as appropriate when either the spouse or parent is reached on the waiting § 42.52 Post records of visa applica- list. tions. (3) A separate record shall be made of (a) Waiting list. Records of individual a spouse or child entitled to derivative visa applicants entitled to an immi- immigrant status whenever the con- grant classification and their priority sular officer determines that the prin- dates shall be maintained at posts at cipal alien intends to precede the fam- which immigrant visas are issued. ily. These records shall indicate the chron- [56 FR 51174, Oct. 9, 1991, as amended at 61 FR ological and preferential order in 1836, Jan. 24, 1996; 78 FR 31399, May 24, 2013] which consideration may be given to immigrant visa applications within the § 42.53 Priority date of individual ap- several immigrant classifications sub- plicants. ject to the numerical limitations speci- (a) Preference applicant. The priority fied in INA 201, 202, and 203. Similar date of a preference visa applicant records shall be kept for the classes under INA 203 (a) or (b) shall be the specified in INA 201(b)(2) and 101(a)(27) fiing date of the approved petition that (A) and (B) which are not subject to nu- accorded preference status. merical limitations. The records which (b) Former Western Hemisphere appli- pertain to applicants subject to numer- cant with priority date prior to January 1, ical limitations constitute ‘‘waiting 1977. Notwithstanding the provisions of lists’’ within the meaning of INA paragraph (a) of this section, an alien 203(e)(3) as redesignated by the Immi- who, prior to January 1, 1977, was sub- gration Act of 1990. ject to the numerical limitation speci- (b) Entitlement to immigrant classifica- fied in section 21(e) of the Act of Octo- tion. An alien shall be entitled to im- ber 3, 1965, and who was registered as a migrant classification if the alien: Western Hemisphere immigrant with a (1) Is the beneficiary of an approved priority date prior to January 1, 1977, petition according immediate relative shall retain that priority date as a or preference status; preference immigrant upon approval of (2) Has satisfied the consular officer a petition according status under INA that the alien is entitled to special im- 203 (a) or (b). migrant status under INA(101)(a)(27) (c) Derivative priority date for spouse or (A) or (B); child of principal alien. A spouse or child (3) Is entitled to status as a Vietnam of a principal alien acquired prior to Amerasian under section 584(b)(1) of the principal alien’s admission shall be

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entitled to the priority date of the Subpart G—Application for principal alien, whether or not named Immigrant Visas in the immigrant visa application of the principal alien. A child born of a § 42.61 Place of application. marriage which existed at the time of a (a) Alien to apply in consular district of principal alien’s admission to the residence. Unless otherwise directed by United States is considered to have the Department, an alien applying for been acquired prior to the principal an immigrant visa shall make applica- alien’s admission. tion at the consular office having juris- § 42.54 Order of consideration. diction over the alien’s place of resi- dence; except that, unless otherwise di- (a) General. Consular officers shall re- rected by the Department, an alien quest applicants to take the steps nec- physically present in an area but hav- essary to meet the requirements of INA ing no residence therein may make ap- 222(b) in order to apply formally for a plication at the consular office having visa as follows: jurisdiction over that area if the alien (1) In the chronological order of the can establish that he or she will be able priority dates of all applicants within to remain in the area for the period re- each of the immigrant classifications quired to process the application. Fi- specified in INA 203 (a) and (b); and nally, a consular office may, as a mat- (2) In the random order established ter of discretion, or shall, at the direc- by the Secretary of State for each re- tion of the Department, accept an im- gion for the fiscal year for applicants migrant visa application from an alien entitled to status under INA 203(c). who is neither a resident of, nor phys- (b) [Reserved] ically present in, the area designated [56 FR 51174, Oct. 10, 1991, as amended at 59 for that office for such purpose. For the FR 15302, Mar. 31, 1994; 61 FR 1836, Jan. 24, purposes of this section, an alien phys- 1996; 63 FR 48578, Sept. 11, 1998] ically present in the United States shall be considered to be a resident of § 42.55 Reports on numbers and pri- the area of his or her last residence ority dates of applications on prior to entry into the United States. record. (b) Transfer of immigrant visa cases. (1) (a) Consular officers shall report pe- All documents, papers, and other evi- riodically, as the Department may di- dence relating to an applicant whose rect, the number and priority dates of case is pending or has been refused at all applicants subject to the numerical one post may be transferred to another limitations prescribed in INA 201, 202, post at the applicant’s request and risk and 203 whose immigrant visa applica- when there is reasonable justification tions have been recorded in accordance for the transfer and the transferring with § 42.52(c). post has no reason to believe that the (b) Documentarily qualified applicants. alien will be unable to appear at the re- Consular officers shall also report peri- ceiving post. odically, as the Department may di- (2) Any approved petition granting rect, the number and priority dates of immediate relative or preference sta- all applicants described in paragraph tus should be included among the docu- (a) of this section who have informed ments when a case is transferred from the consular office that they have ob- one post to another. tained the documents required under (3) In no case may a visa number be INA 222(b), for whom the necessary transferred from one post to another. A clearance procedures have been com- visa number which cannot be used as a pleted. result of the transfer must be returned [56 FR 51174, Oct. 10, 1991, as amended at 61 to the Department immediately. FR 1836, Jan. 24, 1996] [52 FR 42613, Nov. 5, 1987, as amended at 59 FR 39955, Aug. 4, 1994]

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§ 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— [75 FR 45476, Aug. 3, 2010] (1) The proper immigrant classifica- tion, if any, of the visa applicant, and § 42.64 Passport requirements. (2) The applicant’s eligibility to re- (a) Passport defined. Passport, as de- ceive a visa. fined 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 of a passport, provided that documen- [52 FR 42613, Nov. 5, 1987, as amended at 56 tary evidence of permission to enter a FR 49682, Oct. 1, 1991] foreign country has been issued by a § 42.63 Definitions. competent authority and clearly meets the requirements of INA 101(a)(30). (a) Application forms—(1) Application (b) Passport validity requirements. Ex- on Form DS–230 or Form DS–260 required. cept as provided in § 42.2, every appli- Every alien applying for an immigrant cant for an immigrant visa shall visa must make application, as di- present a passport, as defined in INA rected by the consular officer, on Form 101(a)(30), that is valid for at least 60 DS–230, Application for Immigrant days beyond the period of validity of Visa and Alien Registration, or on the visa. The 60-day additional validity Form DS–260, Electronic Application requirement does not apply to an appli- for Immigrant Visa and Alien Registra- cant who would be excepted as provided tion. This requirement may not be in § 42.2 were it not for the fact that the waived. Form DS–230 consists of parts I applicant is applying in the country of and II which, together, are meant in which the applicant is a national and any reference to this Form. the possession of a passport is required (2) Application of alien under 14 or for departure. Such an applicant may physically incapable. The application on be issued a visa valid for 6 months or Form DS–230 or on Form DS–260 for an for such shorter period as will assure alien under 14 years of age or one phys- its expiration in unison with the pass- ically incapable of completing an appli- port. cation may be executed by the alien’s (c) A single passport including more parent or guardian, or, if the alien has than one person. The passport require- no parent or guardian, by any person ment of this section may be met by the having legal custody of, or a legitimate presentation of a passport including interest in, the alien. more than one person, if such inclusion

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is authorized under the laws or regula- (3) Military record means an official tions of the issuing authority and if a document containing a complete photograph of each person 16 years of record of the applicant’s service and age or over is attached to the passport conduct while in military service, in- by the issuing authority. cluding any convictions of crime before 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, 1998] cate of discharge from the military forces or an enrollment book belonging § 42.65 Supporting documents. to the applicant shall not be acceptable 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 re- present 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 the alien has resided for at least one opposed to normal delay and inconven- year. A consular officer may require a ience. police certificate regardless of length (2) If the consular officer determines of residence in any country if he or she that a supporting document, as de- has reason to believe that a police scribed in paragraph (b) of this section, record exists in the country, area, or is in fact unobtainable, although the locality concerned. catalogue of available documents (2) Prison record means an official shows it is available, the officer shall document containing a report of the affix to the visa application a signed applicant’s record of confinement and statement describing in detail the rea- conduct in a penal or correctional in- sons for considering the record or docu- stitution. ment unobtainable and for accepting

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the particular secondary evidence at- execution of the application and a re- tached to the visa. ceipt shall be issued. (e) Authenticity of records and docu- (2) Oath and signature on Form DS–230. ments. If the consular officer has reason The applicant shall be required to read to believe that a required record or the Form DS–230, Application for Im- document submitted by an applicant is migrant Visa and Alien Registration, not authentic or has been altered or when it is completed, or it shall be read tampered with in any material manner, to the applicant in the applicant’s lan- the officer shall take such action as guage, or the applicant shall otherwise may be necessary to determine its au- be informed of its full contents. Appli- thenticity or to ascertain the facts to cants shall be asked whether they are which the record or document purports willing to subscribe thereto. If the ap- to relate. plicant is not willing to subscribe to (f) Photographs. Every alien shall fur- the application unless changes are nish color photographs of the number made in the information stated there- and specifications prescribed by the 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 shall then sign the application over the [52 FR 42613, Nov. 5, 1987, as amended at 55 officer’s title. FR 29015, July 17, 1990; 56 FR 49682, Oct. 1, (3) Oath and signature on Form DS–260. 1991] The applicant shall be required to read § 42.66 Medical examination. the Form DS–260, Electronic Applica- tion for Immigrant Visa and Alien Reg- (a) Medical examination required of all istration, when it has been completed, applicants. Before the issuance of an or it shall be read to the applicant in immigrant visa, the consular officer the applicant’s language, or the appli- shall require every alien, regardless of cant shall otherwise be informed of its age, to undergo a medical examination full contents, before the applicant elec- in order to determine eligibility to re- ceive a visa. tronically signs and submits the appli- (b) Examination by physician from ap- cation to the Department. At the time proved panel. The required examination of the applicant’s interview the appli- shall be conducted in accordance with cant shall be asked whether they are requirements and procedures estab- willing to subscribe thereto to the in- lished by the United States Public formation provided on Form DS–260. If Health Service and by a physician se- the alien is not willing to subscribe to lected by the alien from a panel of phy- the application unless changes are sicians approved by the consular offi- made in the information stated there- cer. in, the required changes shall be made. (c) Facilities required for panel physi- The application shall then be sworn to cian. A consular officer shall not in- or affirmed and signed, biometrically, clude the name of a physician on the by or on behalf of the applicant before panel of physicians referred to in para- a consular officer, or a designated offi- graph (b) of this section unless the phy- cer of the American Institute of Tai- sician has facilities to perform re- wan, who shall then electronically sign quired serological and X-ray tests or is the application. in a position to refer applicants to a (b) Registration. The alien shall be qualified laboratory for such tests. considered to be registered for the pur- poses of INA 221(b) and 203(g) upon the § 42.67 Execution of application, reg- filing of Form DS–230 or Form DS–260, istration, and fingerprinting. when duly executed, or the trans- (a) Execution of visa application—(1) mission by the Department to the alien Application fee. A fee is prescribed for of a notification of the availability of each application for an immigrant an immigrant visa, whichever occurs visa. It shall be collected prior to the first.

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(c) Fingerprinting. Every applicant for retary for Visa Services must pay the an immigrant visa must furnish finger- fee upon being notified that a visa is prints prior to the execution of Form expected to become available in the DS–230 or Form DS–260. near future, and upon being requested to obtain the supporting documenta- [75 FR 45476, Aug. 3, 2010] tion needed to apply formally for a § 42.68 Informal evaluation of family visa, in accordance with instructions members if principal applicant pre- received with such notification. The cedes them. fee must be paid before an applicant at (a) Preliminary determination of visa a post so designated will receive an ap- eligibility. If a principal applicant pro- pointment to appear and make applica- poses to precede the family to the tion before a consular officer. Appli- United States, the consular officer may cants at a post not yet so designated arrange for an informal examination of will pay the fee immediately prior to the other members of the principal ap- formal application for a visa. A fee col- plicant’s family in order to determine lected for the processing of an immi- whether there exists at that time any grant visa application is refundable mental, physical, or other ground of in- only if the principal officer of a post or eligibility on their part to receive a the officer in charge of a consular sec- visa. tion determines that the application (b) When family member ineligible. In was not adjudicated as a result of ac- the event the consular officer finds tion by the U.S. Government over that any member of such family would which the alien had no control and for be ineligible to receive an immigrant which the alien was not responsible, visa, the principal applicant shall be which precluded the applicant from informed and required to acknowledge benefitting from the processing, or as receipt of this information in writing. provided in paragraph (b)(2). (c) No guarantee of future eligibility. A (2) Waiver or refund of fees for replace- determination in connection with an ment immigrant visas. The consular offi- informal examination that an alien ap- cer shall waive the application proc- pears to be eligible for a visa carries no essing fee for a replacement immigrant assurance that the alien will be issued visa or, upon request, refund such a fee an immigrant visa in the future. The where already paid, if the consular offi- principal applicant shall be so in- cer is satisfied that the alien, the formed and required to acknowledge alien’s parent(s), or the alien’s rep- receipt of this information in writing. resentative has established that: The question of visa eligibility can be (i) The prior immigrant visa was determined definitively only at the issued on or after March 27, 2013, to an time the family member applies for a alien who has been lawfully adopted, or visa. who is coming to the United States to be adopted, by a United States citizen; (ii) The alien was unable to use the Subpart H—Issuance of Immigrant original immigrant visa during the pe- Visas riod of its validity as a direct result of § 42.71 Authority to issue visas; visa extraordinary circumstances, including fees. the denial of an exit permit; and (iii) The inability to use the visa was (a) Authority to issue visas. Consular attributable to factors beyond the con- officers may issue immigrant visas at trol of the adopting parent or parents designated consular offices abroad pur- and of the alien. suant to the authority contained in INA 101(a)(16), 221(a), and 224. [84 FR 35298, July 23, 2019] (b) Immigrant visa fees—(1) Payment of fees. The Secretary of State prescribes § 42.72 Validity of visas. a fee for the processing of immigrant (a) Period of validity. With the excep- visa applications. Except as provided in tion indicated herein, the period of va- paragraph (b)(2) of this section, an indi- lidity of an immigrant visa shall not vidual registered for immigrant visa exceed six months, beginning with the processing at a post designated for this date of issuance. Any visa issued to a purpose by the Deputy Assistant Sec- child lawfully adopted by a U.S. citizen

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and spouse while such citizen is serving ried at the time of application for ad- abroad in the U.S. Armed Forces, is mission at a U.S. port of entry. employed abroad by the U.S. Govern- [52 FR 42613, Nov. 5, 1987, as amended at 56 ment, or is temporarily abroad on busi- FR 32323, July 16, 1991; 61 FR 1836, Jan. 24, ness, however, shall be valid until such 1996; 62 FR 27694, May 21, 1997; 64 FR 28916, time, for a period not to exceed 3 years, May 28, 1999; 67 FR 38894, June 6, 2002; 68 FR as the adoptive citizen parent returns 13628, Mar. 20, 2003] to the United States in the course of § 42.73 Procedure in issuing visas. that parent’s military service, U.S. Government employment, or business. (a) Evidence of visa. An immigrant visa shall be evidenced by a physical (b) Extension of period of validity. If visa or by an electronic visa located in the visa was originally issued for a pe- the Department’s records. The appro- riod of validity less than the maximum priate symbol as prescribed in § 42.11, authorized by paragraph (a) of this sec- showing the classification of the alien, tion, the consular officer may extend shall be entered on the visa. the validity of the visa up to but not (b) Visa format. A machine-readable exceeding the maximum period per- visa shall be in the format designated mitted. If an immigrant applies for an by the Department, and contain, at a extension at a consular office other minimum, the following data: than the issuing office, the consular of- (1) Full name of the immigrant; ficer shall, unless the officer is satis- (2) Visa symbol; fied beyond doubt that the alien is eli- (3) Location of the visa issuing office; gible for the extension, communicate (4) Passport number; with the issuing office to determine if (5) The registration number (A-num- there is any objection to an extension. ber) assigned to the immigrant; In extending the period of validity, the (6) Sex; officer shall make an appropriate nota- (7) Date of birth; (8) Nationality; tion on the visa of the new expiration (9) Date of issuance; date, sign the document with title indi- (10) Date of expiration; cated, and impress the seal of the office (11) Visa control number; thereon. (12) Any annotations entered to re- (c) [Reserved] flect waivers or other information use- (d) Age and marital status in relation to ful to an immigration officer at a port validity of certain immigrant visas. In ac- of entry (POE) upon the immigrant’s cordance with § 42.64(b), the validity of application for admission to the United a visa may not extend beyond a date States; sixty days prior to the expiration of (13) A digitized photo of the immi- the passport. The period of validity of grant; and a visa issued to an immigrant as a (14) Machine-readable data that can child shall not extend beyond the day be processed by an immigration officer immediately proceding the date on at a POE. which the alien becomes 21 years of (c) Disposition of supporting documents. age. The consular officer shall warn an Post shall, wherever possible, return alien, when appropriate, that the alien original supporting documents fur- nished by the alien. Duplicate copies will be admissible as such an immi- may be retained in the consular sys- grant only if unmarried and under 21 tem, as required or necessary. years of age at the time of application for admission at a U.S. port of entry. [84 FR 35299, July 23, 2019] The consular officer shall also warn an § 42.74 Issuance of new, replacement, alien issued a visa as a first or second or duplicate visas. preference immigrant as an unmarried son or daughter of a citizen or lawful (a) New immigrant visa for a special im- permanent resident of the United migrant under INA 101(a)(27)(A) and (B). The consular officer may issue a new States that the alien will be admissible immigrant visa to a qualified alien en- as such an immigrant only if unmar- titled to status under INA 101(a)(27)(A) or (B), who establishes:

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(1)(i) That the original visa has been (3) The application processing fee has lost, mutilated or has expired; or been waived pursuant to § 42.71(b)(2) or (ii) That the alien will be unable to has been paid anew. use it during the period of its validity; (d) Duplicate visas issued within the va- provided that: lidity period of the original visa. If the (A) The alien pays anew the applica- validity of a visa previously issued has tion processing fees prescribed in the not yet terminated and the original Schedule of Fees (22 CFR 22.1); and visa has been lost or mutilated, a du- (B) The consular officer ascertains plicate visa may be issued containing whether the original issuing office all of the information appearing on the knows of any reason why a new visa original visa, including the original should not be issued. issuance and expiration dates. The ap- (2) [Reserved] plicant shall execute a new application (b) Replacement immigrant visa for an and provide copies of the supporting immediate relative or for an alien subject documents submitted in support of the to numerical limitation. A consular offi- original application. The alien must cer may issue a replacement visa under pay anew the application processing the original number of a qualified alien fees prescribed in the Schedule of Fees. entitled to status as an immediate rel- [84 FR 35299, July 23, 2019] ative (INA 201(b)(2)), a family or em- ployment preference immigrant (INA Subpart I—Refusal, Revocation, 203(a) or (b)), or a diversity immigrant (INA 203(c)), if— and Termination of Registration (1) The alien is unable to use the visa § 42.81 Procedure in refusing immi- during the period of its validity due to grant visas. reasons beyond the alien’s control; (a) Grounds for refusal. When a visa (2) The visa is issued during the same application has been properly com- fiscal year in which the original visa pleted and executed before a consular was issued, or in the following year in officer in accordance with the provi- the case of an immediate relative only, sions of the INA and the implementing if the original number had been re- regulations, the consular officer must ported as recaptured; issue the visa, refuse the visa under (3) The number has not been returned INA 212(a) or 221(g) or other applicable to the Department as a ‘‘recaptured law or, pursuant to an outstanding visa number’’ in the case of a pref- order under INA 243(d), discontinue erence or diversity immigrant; granting the visa. (4) The alien pays anew the applica- (b) Refusal procedure. A consular offi- tion processing fees prescribed in the cer may not refuse an immigrant visa Schedule of Fees; and until either Form DS–230, Application (5) The consular officer ascertains for Immigrant Visa and Alien Registra- whether the original issuing office tion, or Form DS–260, Electronic Appli- knows of any reason why a new visa cation for Immigrant Visa and Alien should not be issued. Registration, has been executed by the (c) Replacement visa for adoptees. A applicant. When an immigrant visa is consular officer may issue a replace- refused, an appropriate record shall be ment immigrant visa to a qualified made in duplicate on a form prescribed alien, if the conditions in paragraphs by the Department. The form shall be (a)(1) and (3) of this section are met, signed and dated by the consular offi- and if the consular officer determines— cer. The consular officer shall inform (1) A prior immigrant visa was issued the applicant of the provision of law or on or after March 27, 2013, to a child implementing regulation on which the who has been lawfully adopted, or who refusal is based and of any statutory is coming to the United States to be provision of law or implementing regu- adopted, by a United States citizen; lation under which administrative re- (2) The inability to use the visa was lief is available. Each document re- attributable to factors beyond the con- lated to the refusal shall then be at- trol of the adoptee or the adopting par- tached to Form DS–230 for retention in ent(s); and the refusal files. Alternatively, each

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document related to the refusal shall application of the law to the facts, are be electronically scanned and elec- binding upon consular officers. tronically attached to Form DS–260 for (e) Reconsideration of refusal. If a visa retention in the electronic refusal files. is refused, and the applicant within one Any documents not related to the re- year from the date of refusal adduces fusal shall be returned to the appli- further evidence tending to overcome cant. The original copy of a document the ground of ineligibility on which the that was scanned and attached to the refusal was based, the case shall be re- DS–260 for the refusal file shall be re- considered. In such circumstance, an turned to the applicant. If the ground additional application fee shall not be of ineligibility may be overcome by the required. presentation of additional evidence and [52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, the applicant indicates an intention to 1988, as amended at 66 FR 10364, Feb. 15, 2001; submit such evidence, all documents 71 FR 34522, June 15, 2006; 75 FR 45477, Aug. may, with the consent of the alien, be 3, 2010; 84 FR 16612, Apr. 22, 2019] retained in the consular files for a pe- § 42.82 Revocation of visas. riod not to exceed one year. If the re- fusal as not been overcome within one (a) Grounds for revocation by consular year, any documents not relating to officers. A consular officer, the Sec- the refusal shall be removed from the retary, or any Department official to whom the Secretary has delegated this file and returned to the alien. authority is authorized to revoke an (c) Review of refusal at consular office. immigrant visa at any time, in his or If the grounds of ineligibility upon her discretion. which the visa was refused cannot be (b) Provisional revocation. A consular overcome by the presentation of addi- officer, the Secretary, or any Depart- tional evidence, the principal consular ment official to whom the Secretary officer at a post, or a specifically des- has delegated this authority may pro- ignated alternate, shall review the case visionally revoke an immigrant visa without delay, record the review deci- while considering information related sion, and sign and date the prescribed to whether a visa holder is eligible for form. If the grounds of ineligibility the visa. Provisional revocation shall may be overcome by the presentation have the same force and effect as any of additional evidence and the appli- other visa revocation under INA 221(i). cant indicates the intention to submit (c) Notice of revocation. Unless other- such evidence, a review of the refusal wise instructed by the Department, a may be deferred. If the principal con- consular officer shall, if practicable, sular officer or alternate does not con- notify the alien to whom the visa was cur in the refusal, that officer shall ei- issued that the visa was revoked or ther (1) refer the case to the Depart- provisionally revoked. Regardless of ment for an advisory opinion, or (2) as- delivery of such notice, once the rev- sume responsibility for final action on ocation has been entered into the De- the case. partment’s Consular Lookout and Sup- (d) Review of refusal by Department. port System (CLASS), the visa is no The Department may request a con- longer to be considered valid for travel sular officer in an individual case or in to the United States. The date of the specified classes of cases to submit a revocation shall be indicated in CLASS report if an immigrant visa has been and on any notice sent to the alien to refused. The Department will review whom the visa was issued. each report and may furnish an advi- (d) Procedure for physically canceling sory opinion to the consular officer for visas. An immigrant visa that is re- assistance in considering the case fur- voked shall be canceled by writing or ther. If the officer believes that action stamping the word ‘‘REVOKED’’ plain- contrary to an advisory opinion should ly across the face of the visa, if the be taken, the case shall be resubmitted visa is available to the consular officer. to the Department with an explanation The failure or inability to physically of the proposed action. Rulings of the cancel the visa does not affect the va- Department concerning an interpreta- lidity of the revocation. tion of law, as distinguished from an [76 FR 23479, Apr. 27, 2011]

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§ 42.83 Termination of registration. 204(b) which had been automatically re- (a) Termination following failure of ap- voked as a result of the termination of plicant to apply for visa. In accordance registration shall be considered to be with INA 203(g), an alien’s registration automatically reinstated if the reg- for an immigrant visa shall be termi- istration is reinstated. nated if, within one year after trans- (e) Interpretation of ‘‘circumstances be- mission of a notification of the avail- yond alien’s control’’. For the purpose of ability of an immigrant visa, the appli- this section, the term ‘‘circumstances cant fails to apply for an immigrant beyond the alien’s control’’ includes, visa. but is not limited to, an illness or (b) Termination following visa refusal. other physical disability preventing An alien’s registration for an immi- the alien from traveling, a refusal by grant visa shall be terminated if, with- the authorities of the country of an in one year following the refusal of the alien’s residence to grant the alien per- immigrant visa application under INA mission to depart as an immigrant, and 221(g), the alien has failed to present to foreign military service. a consular officer evidence purporting to overcome the basis for refusal. [52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991; 73 FR 11028, Feb. 29, (c) Notice of termination. Upon the ter- 2008] mination of registration under para- graph (a) of this section, the National § 42.84 Discontinuance of granting im- Visa Center (NVC) shall notify the migrant visa pursuant to INA alien of the termination. The NVC 243(d). shall also inform the alien of the right (a) Grounds for discontinuance of to have the registration reinstated if granting a visa. Consular officers in a the alien, before the end of the second year after the missed appointment date country subject to an order by the Sec- if paragraph (a) applies, establishes to retary under INA 243(d) shall dis- the satisfaction of the consular officer continue granting immigrant visas for at the post where the alien is reg- categories of immigrant visas specified istered that the failure to apply for an in the order of the Secretary (or his or immigrant visa was due to cir- her designee), and pursuant to proce- cumstances beyond the alien’s control. dures dictated by the Department. If paragraph (b) applies, the consular (b) Discontinuance procedure—(1) Ap- officer at the post where the alien is plications refused or discontinued only. registered shall, upon the termination Starting on the day the Secretary’s (or of registration, notify the alien of the designee’s) order to discontinue grant- termination and the right to have the ing visas takes effect (effective date), registration reinstated if the alien, be- no visas falling within the scope of the fore the end of the second year after order, as described by the order, may the INA 221(g) refusal, establishes to be issued in the referenced country to the satisfaction of the consular officer an applicant who falls within the scope at such post that the failure to present of the order, except as otherwise ex- evidence purporting to overcome the pressly provided in the order or related ineligibility under INA 221(g) was due Department instructions. Beginning on to circumstances beyond the alien’s the effective date, a consular officer control. must refuse the visa if the individual is (d) Reinstatement of registration. If the not eligible for the visa under INA consular officer is satisfied that an 212(a), INA 221(g), or other applicable alien, as provided for in paragraph (c) law, but if the applicant is otherwise of this section, has established that eligible must process the application failure to apply as scheduled for an im- by discontinuing granting, regardless migrant visa or to present evidence of when the application was filed, if the purporting to overcome ineligibility applicant falls within the scope of the under INA 221(g) was due to cir- order and no exception applies. The ap- cumstances beyond the alien’s control, plication processing fee will not be re- the consular officer shall reinstate the funded. The requirement to discontinue alien’s registration for an immigrant issuance may not be waived, and con- visa. Any petition approved under INA tinues until the sanction is terminated

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as described below. In the case of diver- PARTS 43–45 [RESERVED] sity immigrant selectees applying under INA 203(c), if the discontinuance PART 46—CONTROL OF ALIENS DE- of granting has not been lifted by the end of the fiscal year, the applicant PARTING FROM THE UNITED will not be eligible for a diversity visa STATES for that fiscal year, regardless of the status of the diversity immigrant visa Sec. application at the time 243(d) sanctions 46.1 Definitions. were imposed. 46.2 Authority of departure-control officer to prevent alien’s departure from the (2) Geographic applicability. Visa sanc- United States. tions under INA 243(d) only apply to 46.3 Aliens whose departure is deemed prej- visa issuance in the country that is udicial to the interests of the United sanctioned. If a consular officer has a States. reason to believe that a visa applicant 46.4 Procedure in case of alien prevented potentially subject to INA 243(d) sanc- from departing from the United States. tions is applying at a post outside the 46.5 Hearing procedure before special in- sanctioned country to evade visa sanc- quiry officer. 46.6 Departure from the Canal Zone, the tions under INA 243(d), (e.g., the appli- Trust Territory of the Pacific Islands, or cant provides no credible explanation outlying possessions of the United for applying outside the country) the States. consular officer will transfer the case 46.7 Instructions from the Administrator to the consular post in the consular required in certain cases. district where INA 243(d) sanctions AUTHORITY: Secs. 104, 215, 66 Stat. 174, 190; apply, review any other applicable De- 8 U.S.C. 1104, 1185. partment instructions and proceed ac- cordingly. When cases are transferred § 46.1 Definitions. to a consular district where INA 243(d) For the purposes of this part: sanctions apply, the adjudication will (a) The term alien means any person be subject to the discontinuation of who is not a citizen or national of the issuance under the sanctions. United States. (c) Termination of sanction. The De- (b) The term Commissioner means the partment shall notify consular officers Commissioner of Immigration and Nat- in an affected country the sanction uralization. under INA 243(d) has been lifted. After (c) The term regional commissioner notification, normal consular oper- means an officer of the Immigration ations may resume consistent with and Naturalization Service duly ap- these regulations and guidance from pointed or designated as a regional the Department. Once the sanction commissioner, or an officer who has under INA 243(d) is lifted, no new appli- been designated to act as a regional cation processing fees are required in commissioner. cases where issuance has been discon- (d) The term district director means an tinued pursuant to an INA 243(d) order, officer of the Immigration and Natu- and consular officers in the affected ralization Service duly appointed or post must adjudicate the visa applica- designated as a district director, or an tion consistent with regulations and officer who has been designated to act Department guidance. Consular offi- as a district director. cers may require applicants to update (e) The term United States means the the visa application forms, must con- several States, the District of Colum- duct any necessary adjudicatory steps, bia, the Canal Zone, Puerto Rico, the and may re-interview to determine eli- Virgin Islands, Guam, American gibility. In numerically controlled im- Samoa, Swains Island, the Trust Terri- migrant visa categories, an applicant’s tory of the Pacific Islands, and all immigrant visa priority date may no other territory and waters, continental longer be current once sanctions under and insular, subject to the jurisdiction INA 243(d) are lifted, in which case the of the United States. applicant must await visa availability. (f) The term continental United States [84 FR 16613, Apr. 22, 2019] means the District of Columbia and the

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