211.4 8 CFR Ch. I (11 02 Edition) · permit, border crossing card, ... seasonal work will be...

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8 CFR Ch. I (1–1–02 Edition)§ 211.4

§ 211.4 Waiver of documents for re-turning residents.

(a) Pursuant to the authority con-tained in section 211(b) of the Act, analien previously lawfully admitted tothe United States for permanent resi-dence who, upon return from a tem-porary absence was inadmissible be-cause of failure to have or to present avalid passport, immigrant visa, reentrypermit, border crossing card, or otherdocument required at the time ofentry, may be granted a waiver of suchrequirement in the discretion of thedistrict director if the district directordetermines that such alien:

(1) Was not otherwise inadmissible atthe time of entry, or having been oth-erwise inadmissible at the time ofentry is with respect thereto qualifiedfor an exemption from deportabilityunder section 237(a)(1)(H) of the Act;and

(2) Is not otherwise subject to re-moval.

(b) Denial of a waiver by the districtdirector is not appealable but shall bewithout prejudice to renewal of an ap-plication and reconsideration in pro-ceedings before the immigration judge.

§ 211.5 Alien commuters.(a) General. An alien lawfully admit-

ted for permanent residence or a spe-cial agricultural worker lawfully ad-mitted for temporary residence undersection 210 of the Act may commenceor continue to reside in foreign contig-uous territory and commute as a spe-cial immigrant defined in section101(a)(27)(A) of the Act to his or herplace of employment in the UnitedStates. An alien commuter engaged inseasonal work will be presumed to havetaken up residence in the UnitedStates if he or she is present in thiscountry for more than 6 months, in theaggregate, during any continuous 12-month period. An alien commuter’s ad-dress report under section 265 of theAct must show his or her actual resi-dence address even though it is not inthe United States.

(b) Loss of residence status. An aliencommuter who has been out of regularemployment in the United States for acontinuous period of 6 months shall bedeemed to have lost residence status,notwithstanding temporary entries in

the interim for other than employmentpurposes. An exception applies whenemployment in the United States wasinterrupted for reasons beyond the in-dividual’s control other than lack of ajob opportunity or the commuter candemonstrate that he or she has worked90 days in the United States in the ag-gregate during the 12-month periodpreceding the application for admissioninto the United States. Upon loss ofstatus, Form I–551 or I–688 shall be-come invalid and must be surrenderedto an immigration officer.

(c) Eligibility for benefits under the im-migration and nationality laws. Until heor she has taken up residence in theUnited States, an alien commuter can-not satisfy the residence requirementsof the naturalization laws and cannotqualify for any benefits under the im-migration laws on his or her own be-half or on behalf of his or her relativesother than as specified in paragraph (a)of this section. When an alien com-muter takes up residence in the UnitedStates, he or she shall no longer be re-garded as a commuter. He or she mayfacilitate proof of having taken up suchresidence by notifying the Service assoon as possible, preferably at the timeof his or her first reentry for that pur-pose. Application for issuance of a newPermanent Resident Card to show thathe or she has taken up residence in theUnited States shall be made on Form I–90.

[62 FR 10346, Mar. 6, 1997, as amended at 63FR 70315, Dec. 21, 1998]

PART 212—DOCUMENTARY RE-QUIREMENTS: NONIMMIGRANTS;WAIVERS; ADMISSION OF CER-TAIN INADMISSIBLE ALIENS; PA-ROLE

Sec.212.1 Documentary requirements for non-

immigrants.212.2 Consent to reapply for admission after

deportation, removal or departure atGovernment expense.

212.3 Application for the exercise of discre-tion under section 212(c).

212.4 Applications for the exercise of discre-tion under section 212(d)(1) and 212(d)(3).

212.5 Parole of aliens into the UnitedStates.

212.6 Nonresident alien border crossingcards.

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Immigration and Naturalization Service, Justice § 212.1

212.7 Waiver of certain grounds of inadmis-sibility.

212.8 Certification requirement of section212(a)(14).

212.9 Applicability of section 212(a)(32) tocertain derivative third and sixth pref-erence and nonpreference immigrants.

212.10 Section 212(k) waiver.212.11 Controlled substance convictions.212.12 Parole determinations and revoca-

tions respecting Mariel Cubans.212.13 [Reserved]212.14 Parole determinations for alien wit-

nesses and informants for whom a lawenforcement authority (‘‘LEA’’) will re-quest S classification.

212.15 Certificates for foreign health careworkers.

AUTHORITY: 8 U.S.C. 1101, 1102, 1103, 1182,1184, 1187, 1225, 1226, 1227; 8 CFR part 2.

SOURCE: 17 FR 11484, Dec. 19, 1952, unlessotherwise noted.

§ 212.1 Documentary requirements fornonimmigrants.

A valid unexpired visa and an unex-pired passport, valid for the period setforth in section 212(a)(26) of the Act,shall be presented by each arrivingnonimmigrant alien except that thepassport validity period for an appli-cant for admission who is a member ofa class described in section 102 of theAct is not required to extend beyondthe date of his application for admis-sion if so admitted, and except as oth-erwise provided in the Act, this chap-ter, and for the following classes:

(a) Canadian nationals, and aliens hav-ing a common nationality with nationalsof Canada or with British subjects in Ber-muda, Bahamian nationals or British sub-jects resident in Bahamas, Cayman Is-lands, and Turks and Caicos Islands. Avisa is not required of a Canadian na-tional in any case. A passport is not re-quired of such national except after avisit outside of the Western Hemi-sphere. A visa is not required of analien having a common nationalitywith Canadian nationals or with Brit-ish subjects in Bermuda, who has his orher residence in Canada or Bermuda. Apassport is not required of such alienexcept after a visit outside of the West-ern Hemisphere. A visa and a passportare required of a Bahamian national ora British subject who has his residencein the Bahamas except that a visa isnot required of such an alien who, priorto or at the time of embarkation for

the United States on a vessel or air-craft, satisfied the examining U.S. im-migration officer at the Bahamas, thathe is clearly and beyond a doubt enti-tled to admission in all other respects.A visa is not required of a British sub-ject who has his residence in, and ar-rives directly from, the Cayman Is-lands or the Turks and Caicos Islandsand who presents a current certificatefrom the Clerk of Court of the CaymanIslands or the Turks and Caicos Islandsindicating no criminal record.

(b) Certain Caribbean residents—(1)British, French, and Netherlands nation-als, and nationals of certain adjacent is-lands of the Caribbean which are inde-pendent countries. A visa is not requiredof a British, French, or Netherlands na-tional, or of a national of Barbados,Grenada, Jamaica, or Trinidad and To-bago, who has his or her residence inBritish, French, or Netherlands terri-tory located in the adjacent islands ofthe Caribbean area, or in Barbados,Grenada, Jamaica, or Trinidad and To-bago, who:

(i) Is proceeding to the United Statesas an agricultural worker;

(ii) Is the beneficiary of a valid, un-expired indefinite certification grantedby the Department of Labor for em-ployment in the Virgin Islands of theUnited States and is proceeding to theVirgin Islands of the United States forsuch purpose, or

(iii) Is the spouse or child of an aliendescribed in paragraph (b)(1)(i) or(b)(1)(ii) of this section, and is accom-panying or following to join him orher.

(2) Nationals of the British Virgin Is-lands. A visa is not required of a na-tional of the British Virgin Islands whohas his or her residence in the BritishVirgin Islands, if:

(i) The alien is seeking admissionsolely to visit the Virgin Islands of theUnited States; or

(ii) At the time of embarking on anaircraft at St. Thomas, U.S. Virgin Is-lands, the alien meets each of the fol-lowing requirements:

(A) The alien is traveling to anyother part of the United States by air-craft as a nonimmigrant visitor forbusiness or pleasure (as described insection 101(a)(15)(B) of the Act);


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(B) The alien satisfies the examiningU.S. Immigration officer at the port-of-entry that he or she is clearly and be-yond a doubt entitled to admission inall other respects; and

(C) The alien presents a current Cer-tificate of Good Conduct issued by theRoyal Virgin Islands Police Depart-ment indicating that he or she has nocriminal record.

(c) Mexican nationals. A visa and apassport are not required of a Mexicannational who is in possession of a bor-der crossing card on Form I–186 or I–586and is applying for admission as a tem-porary visitor for business or pleasurefrom continguous territory; or is enter-ing solely for the purpose of applyingfor a Mexican passport or other officialMexican document at a Mexican con-sular office on the United States side ofthe border. A visa is not required of aMexican national who is in possessionof a border crossing card and is apply-ing for admission to the United Statesas a temporary visitor for business orpleasure from other than contiguousterritory. A visa is not required of aMexican national who is a crewmanemployed on an aircraft belonging to aMexican company authorized to engagein commercial transportation into theUnited States.

(c-1) Bearers of Mexican diplomatic orofficial passports. A visa shall not be re-quired by a Mexican national bearing aMexican diplomatic or official passportwho is a military or civilian official ofthe Federal Government of Mexico en-tering the United States for six monthsor less for a purpose other than on as-signment as a permanent employee toan office of the Mexican Federal Gov-ernment in the United States and theofficial’s spouse or any of the official’sdependent family members under 19years of age, bearing diplomatic or offi-cial passports, who are in the actualcompany of such official at the time ofentry into the United States. Thiswaiver does not apply to the spouse orany of the official’s family membersclassifiable under section 101(a)(15) (F)or (M) of the Act.

(c-2) Aliens entering pursuant toInternational Boundary and Water Com-mission Treaty. A visa and a passportare not required of an alien employedeither directly or indirectly on the con-

struction, operation, or maintenance ofworks in the United States undertakenin accordance with the treaty con-cluded on February 3, 1944, between,the United States and Mexico regard-ing the functions of the InternationalBoundary and Water Commission, andentering the United States temporarilyin connection with such employment.

(d) Citizens of the Freely AssociatedStates, formerly Trust Territory of the Pa-cific Islands. Citizens of the Republic ofthe Marshall Islands and the FederatedStates of Micronesia may enter into,lawfully engage in employment, andestablish residence in the UnitedStates and its territories and posses-sions without regard to paragraphs(14), (20) and (26) of section 212(a) of theAct pursuant to the terms of Pub. L.99–239. Pending issuance by the afore-mentioned governments of travel docu-ments to eligible citizens, travel docu-ments previously issued by the TrustTerritory of the Pacific Islands willcontinue to be accepted for purposes ofidentification and to establish eligi-bility for admission into the UnitedStates, its territories and possessions.

(e) Aliens entering Guam pursuant tosection 14 of Pub. L. 99–396, ‘‘OmnibusTerritories Act.’’ (1) A visa is not re-quired of an alien who is a citizen of acountry enumerated in paragraph (e)(3)of this section who:

(i) Is classifiable as a vistor for busi-ness or pleasure;

(ii) Is solely entering and staying onGuam for a period not to exceed fifteendays;

(iii) Is in possession of a round-tripnonrefundable and nontransferabletransportation ticket bearing a con-firmed departure date not exceedingfifteen days from the date of admissionto Guam;

(iv) Is in possession of a completedand signed Visa Waiver InformationForm (Form I–736);

(v) Waives any right to review or ap-peal the immigration officer’s deter-mination of admissibility at the port ofentry at Guam; and

(vi) Waives any right to contest anyaction for deportation, other than onthe basis of a request for asylum.

(2) An alien is eligible for the waiverprovision if all of the eligibility cri-teria in paragraph (e)(1) of this section


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have been met prior to embarkationand the alien is a citizen of a countrythat:

(i) Has a visa refusal rate of 16.9% orless, or a country whose visa refusalrate exceeds 16.9% and has an estab-lished preinspection or preclearanceprogram, pursuant to a bilateral agree-ment with the United States underwhich its citizens traveling to Guamwithout a valid United States visa areinspected by the Immigration and Nat-uralization Service prior to departurefrom that country;

(ii) Is within geographical proximityto Guam, unless the country has a sub-stantial volume of nonimmigrant ad-missions to Guam as determined by theCommissioner and extends reciprocalprivileges to citizens of the UnitedStates;

(iii) Is not designated by the Depart-ment of State as being of special hu-manitarian concern; and

(iv) Poses no threat to the welfare,safety or security of the United States,its territories, or commonwealths.Any potential threats to the welfare,safety, or security of the UnitedStates, its territories, or common-wealths will be dealt with on a countryby country basis, and a determinationby the Commissioner of the Immigra-tion and Naturalization Service that athreat exists will result in the imme-diate deletion of that country from thelisting in paragraph (e)(3) of this sec-tion.

(3)(i) The following geographic areasmeet the eligibility criteria as statedin paragraph (e)(2) of this section: Aus-tralia, Brunei, Indonesia, Japan, Ma-laysia, Nauru, New Zealand, PapuaNew Guinea, Republic of Korea, Singa-pore, Solomon Islands, Taiwan (resi-dents thereof who begin their travel inTaiwan and who travel on direct flightsfrom Taiwan to Guam without an in-termediate layover or stop except thatthe flights may stop in a territory ofthe United States enroute), the UnitedKingdom (including the citizens of thecolony of Hong Kong), Vanuatu, andWestern Samoa. The provision thatflights transporting residents of Tai-wan to Guam may stop at a territory ofthe United States enroute may be re-scinded whenever the number of inad-missible passengers arriving in Guam

who have transited a territory of theUnited States enroute to Guam exceeds20 percent of all the inadmissible pas-sengers arriving in Guam within anyconsecutive two-month period. Suchrescission will be published in the FED-ERAL REGISTER.

(ii) For the purposes of this section,the term citizen of a country as used in8 CFR 212.1(e)(1) when applied to Tai-wan refers only to residents of Taiwanwho are in possession of Taiwan Na-tional Identity Cards and a valid Tai-wan passport with a valid re-entry per-mit issued by the Taiwan Ministry ofForeign Affairs. It does not refer toany other holder of a Taiwan passportor a passport issued by the People’s Re-public of China.

(4) Admission under this section ren-ders an alien ineligible for:

(i) Adjustment of status to that of atemporary resident or, except underthe provisions of section 245(i) of theAct, to that of a lawful permanent resi-dent;

(ii) Change of nonimmigrant status;or

(iii) Extension of stay.(5) A transportation line bringing

any alien to Guam pursuant to thissection shall:

(i) Enter into a contract on Form I–760, made by the Commissioner of theImmigration and Naturalization Serv-ice in behalf of the government;

(ii) Transport only an alien who is acitizen and in possession of a validpassport of a country enumerated inparagraph (e)(3) of this section;

(iii) Transport only an alien in pos-session of a round-trip, nontransferabletransportation ticket:

(A) Bearing a confirmed departuredate not exceeding fifteen days fromthe date of admission to Guam,

(B) Valid for a period of not less thanone year,

(C) Nonrefundable except in the coun-try in which issued or in the country ofthe alien’s nationality or residence,

(D) Issued by a carrier which has en-tered into an agreement described inpart (5)(i) of this section, and

(E) Which the carrier will uncondi-tionally honor when presented for re-turn passage; and


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8 CFR Ch. I (1–1–02 Edition)§ 212.1

(iv) Transport only an alien in pos-session of a completed and signed VisaWaiver Information Form I–736.

(f) Direct transits—(1) Transit withoutvisa. A passport and visa are not re-quired of an alien who is being trans-ported in immediate and continuoustransit through the United States inaccordance with the terms of an agree-ment entered into between the trans-portation line and the Service underthe provisions of section 238(d) of theAct on Form I–426 to insure such im-mediate and continuous transitthrough, and departure from, theUnited States en route to a specificallydesignated foreign country: Provided,That such alien is in possession of atravel document or documents estab-lishing his/her identity and nationalityand ability to enter some countryother than the United States.

(2) Unavailability to transit. This waiv-er of passport and visa requirement isnot available to an alien who is a cit-izen of Afghanistan, Angola, Ban-gladesh, Belarus, Bosnia-aherzegovina,Burma, Burundi, Central African Re-public, People’s Republic of China, Co-lombia, Congo (Brazzaville), Cuba,India, Iran, Iraq, Libya, Nigeria, NorthKorea, Pakistan, Serbia, Sierra Leone,Somalia, Sri Lanka, and Sudan.

(3) Foreign government officials in tran-sit. If an alien is of the class describedin section 212(d)(8) of the Act, only avalid unexpired visa and a travel docu-ment valid for entry into a foreigncountry for at least 30 days from thedate of admission to the United Statesare required.

(g) Unforeseen emergency. A non-immigrant seeking admission to theUnited States must present an unex-pired visa and a passport valid for theamount of time set forth in section212(a)(7)(B) of the Act, or a valid bordercrossing identification card at the timeof application for admission, unless thenonimmigrant satisfies the require-ments described in one or more of theparagraphs (a) through (f) or (i) of thissection. Upon a nonimmigrant’s appli-cation on Form I–193, a district direc-tor at a port of entry may, in the exer-cise of his or her discretion, on a case-by-case basis, waive the documentaryrequirements, if satisfied that the non-immigrant cannot present the required

documents because of an unforeseenemergency. The district director or theDeputy Commissioner may at any timerevoke a waiver previously authorizedpursuant to this paragraph and notifythe nonimmigrant in writing to thateffect.

(h) Nonimmigrant spouses, fiancees,fiances, and children of U.S. citizens.Notwithstanding any of the provisionsof this part, an alien seeking admissionas a spouse, fiancee, fiance, or child ofa U.S. citizen, or as a child of thespouse, fiane, or finacee of a U.S. cit-izen, pursuant to section 101(a)(15)(K)of the Act shall be in possession of anunexpired nonimmigrant visa issued byan American consular officerclassifying the alien under that sec-tion, or be inadmissible under section212(a)(7)(B) of the Act.

(i) Visa Waiver Pilot Program. A visa isnot required of any alien who is eligi-ble to apply for admission to theUnited States as a Visa Waiver PilotProgram applicant pursuant to the pro-visions of section 217 of the Act andpart 217 of this chapter if such alien isa national of a country designatedunder the Visa Waiver Pilot Program,who seeks admission to the UnitedStates for a period of 90 days or less asa visitor for business or pleasure.

(j) Officers authorized to act upon rec-ommendations of United States consularofficers for waiver of visa and passport re-quirements. All district directors, theofficers in charge are authorized to actupon recommendations made by UnitedStates consular officers or by officersof the Visa Office, Department ofState, pursuant to the provisions of 22CFR 41.7 for waiver of visa and pass-port requirements under the provisionsof section 212(d)(4)(A) of the Act. TheDistrict Director at Washington, DC,has jurisdiction in such cases rec-ommended to the Service at the seat ofGovernment level by the Departmentof State. Neither an application nor feeare required if the concurrence in apassport or visa waiver is requested bya U.S. consular officer or by an officerof the Visa Office. The district directoror the Deputy Commissioner, may atany time revoke a waiver previouslyauthorized pursuant to this paragraphand notify the nonimmigrant alien inwriting to that effect.


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(k) Cancellation of nonimmigrant visasby immigration officers. Upon receipt ofadvice from the Department of Statethat a nonimmigrant visa has been re-voked or invalidated, and request bythat Department for such action, im-migration officers shall place an appro-priate endorsement thereon.

(l) Treaty traders and investors. Not-withstanding any of the provisions ofthis part, an alien seeking admission asa treaty trader or investor under theprovisions of Chapter 16 of the NorthAmerican Free Trade Agreement(NAFTA) pursuant to section101(a)(15)(E) of the Act, shall be in pos-session of a nonimmigrant visa issuedby an American consular officerclassifying the alien under that sec-tion.

(m) Aliens in S classification. Notwith-standing any of the provisions of thispart, an alien seeking admission pursu-ant to section 101(a)(15)(S) of the Actmust be in possession of appropriatedocuments issued by a United Statesconsular officer classifying the alienunder that section.

(n) Alien in Q–2 classification. Not-withstanding any of the provisions ofthis part, an alien seeking admission asa principal according to section101(a)(15)(Q)(ii) of the Act must be inpossession of a Certification Letterissued by the Department of State’sProgram Administrator documentingparticipation in the Irish peace processcultural and training programs.

(Secs. 103, 104, 212 of the Immigration andNationality Act, as amended (8 U.S.C. 1103,1104, 1132))

[26 FR 12066, Dec. 16, 1961]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 212.1, see the List of CFRSections Affected, which appears in theFinding Aids section in the printed volumeand on GPO Access.

§ 212.2 Consent to reapply for admis-sion after deportation, removal ordeparture at Government expense.

(a) Evidence. Any alien who has beendeported or removed from the UnitedStates is inadmissible to the UnitedStates unless the alien has remainedoutside of the United States for fiveconsecutive years since the date of de-portation or removal. If the alien hasbeen convicted of an aggravated felony,

he or she must remain outside of theUnited States for twenty consecutiveyears from the deportation date beforehe or she is eligible to re-enter theUnited States. Any alien who has beendeported or removed from the UnitedStates and is applying for a visa, ad-mission to the United States, or ad-justment of status, must present proofthat he or she has remained outside ofthe United States for the time periodrequired for re-entry after deportationor removal. The examining consular orimmigration officer must be satisfiedthat since the alien’s deportation or re-moval, the alien has remained outsidethe United States for more than fiveconsecutive years, or twenty consecu-tive years in the case of an alien con-victed of an aggravated felony as de-fined in section 101(a)(43) of the Act.Any alien who does not satisfactorilypresent proof of absence from theUnited States for more than five con-secutive years, or twenty consecutiveyears in the case of an alien convictedof an aggravated felony, to the con-sular or immigration officer, and anyalien who is seeking to enter theUnited States prior to the completionof the requisite five- or twenty-year ab-sence, must apply for permission to re-apply for admission to the UnitedStates as provided under this part. Atemporary stay in the United Statesunder section 212(d)(3) of the Act doesnot interrupt the five or twenty con-secutive year absence requirement.

(b) Alien applying to consular officerfor nonimmigrant visa or nonresidentalien border crossing card. (1) An alienwho is applying to a consular officerfor a nonimmigrant visa or a non-resident alien border crossing card,must request permission to reapply foradmission to the United States if fiveyears, or twenty years if the alien’s de-portation was based upon a convictionfor an aggravated felony, have notelapsed since the date of deportation orremoval. This permission shall be re-quested in the manner prescribedthrough the consular officer, and maybe granted only in accordance with sec-tions 212(a)(17) and 212(d)(3)(A) of theAct and § 212.4 of this part. However,the alien may apply for such permis-sion by submitting Form I–212, Appli-cation for Permission to Reapply for


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8 CFR Ch. I (1–1–02 Edition)§ 212.2

Admission into the United States afterDeportation or Removal, to the con-sular officer if that officer is willing toaccept the application, and rec-ommends to the district director thatthe alien be permitted to apply.

(2) The consular officer shall forwardthe Form I–212 to the district directorwith jurisdiction over the place wherethe deportation or removal proceedingswere held.

(c) Special provisions for an applicantfor nonimmigrant visa under section101(a)(15)(K) of the Act. (1) An applicantfor a nonimmigrant visa under section101(a)(15)(K) must:

(i) Be the beneficiary of a valid visapetition approved by the Service; and

(ii) File an application on Form I–212with the consular officer for permissionto reapply for admission to the UnitedStates after deportation or removal.

(2) The consular officer must forwardthe Form I–212 to the Service officewith jurisdiction over the area withinwhich the consular officer is located. Ifthe alien is ineligible on groundswhich, upon the applicant’s marriageto the United States citizen petitioner,may be waived under section 212 (g),(h), or (i) of the Act, the consular offi-cer must also forward a recommenda-tion as to whether the waiver should begranted.

(d) Applicant for immigrant visa. Ex-cept as provided in paragraph (g)(3) ofthis section, an applicant for an immi-grant visa who is not physicallypresent in the United States and whorequires permission to reapply mustfile Form I–212 with the district direc-tor having jurisdiction over the placewhere the deportation or removal pro-ceedings were held. Except as providedin paragraph (g)(3) of this section, ifthe applicant also requires a waiverunder section 212 (g), (h), or (i) of theAct, Form I–601, Application for Waiverof Grounds of Excludability, must befiled simultaneously with the Form I–212 with the American consul havingjurisdiction over the alien’s place ofresidence. The consul must forwardthese forms to the appropriate Serviceoffice abroad with jurisdiction over thearea within which the consul is lo-cated.

(e) Applicant for adjustment of status.An applicant for adjustment of status

under section 245 of the Act and part245 of this chapter must request per-mission to reapply for entry in con-junction with his or her application foradjustment of status. This request ismade by filing an application for per-mission to reapply, Form I–212, withthe district director having jurisdic-tion over the place where the alien re-sides. If the application under section245 of the Act has been initiated, re-newed, or is pending in a proceeding be-fore an immigration judge, the districtdirector must refer the Form I–212 tothe immigration judge for adjudica-tion.

(f) Applicant for admission at port ofentry. Within five years of the deporta-tion or removal, or twenty years in thecase of an alien convicted of an aggra-vated felony, an alien may request per-mission at a port of entry to reapplyfor admission to the United States. Thealien shall file the Form I–212 with thedistrict director having jurisdictionover the port of entry.

(g) Other applicants. (1) Any applicantfor permission to reapply for admissionunder circumstances other than thosedescribed in paragraphs (b) through (f)of this section must file Form I–212.This form is filed with either:

(i) The district director having juris-diction over the place where the depor-tation or removal proceedings wereheld; or

(ii) The district director who exer-cised or is exercising jurisdiction overthe applicant’s most recent proceeding.

(2) If the applicant is physicallypresent in the United States but is in-eligible to apply for adjustment of sta-tus, he or she must file the applicationwith the district director having juris-diction over his or her place of resi-dence.

(3) If an alien who is an applicant forparole authorization under § 245.15(t)(2)of this chapter requires consent to re-apply for admission after deportation,removal, or departure at Governmentexpense, or a waiver under section212(g), 212(h), or 212(i) of the Act, he orshe may file the requisite Form I–212 orForm I–601 at the Nebraska ServiceCenter concurrently with the Form I–131, Application for Travel Document.If an alien who is an applicant for pa-role authorization under § 245.13(k)(2) of


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this chapter requires consent to re-apply for admission after deportation,removal, or departure at Governmentexpense, or a waiver under section212(g), 212(h), or 212(i) of the Act, he orshe may file the requisite Form I–212 orForm I–601 at the Texas Service Centerconcurrently with the Form I–131, Ap-plication for Travel Document.

(h) Decision. An applicant who hassubmitted a request for consent to re-apply for admission after deportationor removal must be notified of the de-cision. If the application is denied, theapplicant must be notified of the rea-sons for the denial and of his or herright to appeal as provided in part 103of this chapter. Except in the case ofan applicant seeking to be granted ad-vance permission to reapply for admis-sion prior to his or her departure fromthe United States, the denial of the ap-plication shall be without prejudice tothe renewal of the application in thecourse of proceedings before an immi-gration judge under section 242 of theAct and this chapter.

(i) Retroactive approval. (1) If the alienfiled Form I–212 when seeking admis-sion at a port of entry, the approval ofthe Form I–212 shall be retroactive toeither:

(i) The date on which the alien em-barked or reembarked at a place out-side the United States; or

(ii) The date on which the alien at-tempted to be admitted from foreigncontiguous territory.

(2) If the alien filed Form I–212 inconjunction with an application for ad-justment of status under section 245 ofthe Act, the approval of Form I–212shall be retroactive to the date onwhich the alien embarked or re-embarked at a place outside the UnitedStates.

(j) Advance approval. An alien whosedeparture will execute an order of de-portation shall receive a conditionalapproval depending upon his or her sat-isfactory departure. However, thegrant of permission to reapply does notwaive inadmissibility under section212(a) (16) or (17) of the Act resultingfrom exclusion, deportation, or re-moval proceedings which are instituted

subsequent to the date permission toreapply is granted.

[56 FR 23212, May 21, 1991, as amended at 64FR 25766, May 12, 1999; 65 FR 15854, Mar. 24,2000]

§ 212.3 Application for the exercise ofdiscretion under section 212(c).

(a) Jurisdiction. An application for theexercise of discretion under section212(c) of the Act shall be submitted onForm I–191, Application for AdvancePermission to Return toUnrelinquished Domicile, to:

(1) The district director having juris-diction over the area in which the ap-plicant’s intended or actual place ofresidence in the United States is lo-cated; or

(2) The Immigration Court if the ap-plication is made in the course of pro-ceedings under sections 235, 236, or 242of the Act.

(b) Filing of application. The applica-tion may be filed prior to, at the timeof, or at any time after the applicant’sdeparture from or arrival into theUnited States. All material facts and/or circumstances which the applicantknows or believes apply to the groundsof excludability or deportability mustbe described. The applicant must alsosubmit all available documentation re-lating to such grounds.

(c) Decision of the District Director. Adistrict director may grant or deny anapplication for advance permission toreturn to an unrelinquished domicileunder section 212(c) of the Act, in theexercise of discretion, unless otherwiseprohibited by paragraph (f) of this sec-tion. The applicant shall be notified ofthe decision and, if the application isdenied, of the reason(s) for denial. Noappeal shall lie from denial of the ap-plication, but the application may berenewed before an Immigration Judgeas provided in paragraph (e) of this sec-tion.

(d) Validity. Once an application isapproved, that approval is valid indefi-nitely. However, the approval coversonly those specific grounds of exclud-ability or deportability that were de-scribed in the application. An applica-tion who failed to describe any othergrounds of excludability or deport-ability, or failed to disclose material


238

8 CFR Ch. I (1–1–02 Edition)§ 212.4

facts existing at the time of the ap-proval of the application, remains ex-cludable or deportable under the pre-viously unidentified grounds. If at alater date, the applicant becomes sub-ject to exclusion or deportation basedupon these previously unidentifiedgrounds or upon new ground(s), a newapplication must be filed with the ap-propriate district director.

(e) Filing or renewal of applications be-fore an Immigration Judge. (1) An appli-cation for the exercise of discretionunder section 212(c) of the Act may berenewed or submitted in proceedingsbefore an Immigration Judge undersections 235, 236, or 242 of the Act, andunder this chapter. Such applicationshall be adjudicated by the Immigra-tion Judge, without regard to whetherthe applicant previously has made ap-plication to the district director.

(2) The Immigration Judge maygrant or deny an application for ad-vance permission to return to anunrelinquished domicile under section212(c) of the Act, in the exercise of dis-cretion, unless otherwise prohibited byparagraph (f) of this section.

(3) An alien otherwise entitled to ap-peal to the Board of Immigration Ap-peals may appeal the denial by the Im-migration Judge of this application inaccordance with the provisions of § 3.36of this chapter.

(f) Limitations on discretion to grant anapplication under section 212(c) of theAct. A district director or ImmigrationJudge shall deny an application for ad-vance permission to enter under sec-tion 212(c) of the Act if:

(1) The alien has not been lawfullyadmitted for permanent residence;

(2) The alien has not maintained law-ful domicile in the United States, as ei-ther a lawful permanent resident or alawful temporary resident pursuant tosection 245A or section 210 of the Act,for at least seven consecutive years im-mediately preceding the filing of theapplication;

(3) The alien is subject to exclusionfrom the United States under para-graphs (3)(A), (3)(B), (3)(C), or (3)(E) ofsection 212(a) of the Act;

(4) The alien has been convicted of anaggravated felony, as defined by sec-tion 101(a)(43) of the Act, and has

served a term of imprisonment of atleast five years for such conviction; or

(5) The alien applies for relief undersection 212(c) within five years of thebarring act as enumerated in one ormore sections of section 242B(e) (1)through (4) of the Act.

(g) Relief for certain aliens who were indeportation proceedings before April 24,1996. Section 440(d) of Antiterrorismand Effective Death Penalty Act of 1996(AEDPA) shall not apply to any appli-cant for relief under this section whosedeportation proceedings were com-menced before the Immigration Courtbefore April 24, 1996.

[56 FR 50034, Oct. 3, 1991, as amended at 60 FR34090, June 30, 1995; 61 FR 59825, Nov. 25, 1996;66 FR 6446, Jan. 22, 2001]

§ 212.4 Applications for the exercise ofdiscretion under section 212(d)(1)and 212(d)(3).

(a) Applications under section212(d)(3)(A)—(1) General. District direc-tors and officers in charge outside theUnited States in the districts of Bang-kok, Thailand; Mexico City, Mexico;and Rome, Italy are authorized to actupon recommendations made by con-sular officers for the exercise of discre-tion under section 212(d)(3)(A) of theAct. The District Director, Wash-ington, DC, has jurisdiction in suchcases recommended to the Service atthe seat-of-government level by theDepartment of State. When a consularofficer or other State Department offi-cial recommends that the benefits ofsection 212(d)(3)(A) of the Act be ac-corded an alien, neither an applicationnor fee shall be required. The rec-ommendation shall specify:

(i) The reasons for inadmissibilityand each section of law under whichthe alien is inadmissible;

(ii) Each intended date of arrival;(iii) The length of each proposed stay

in the United States;(iv) The purpose of each stay;(v) The number of entries which the

alien intends to make; and(vi) The justification for exercising

the authority contained in section212(d)(3) of the Act.If the alien desires to make multipleentries and the consular officer orother State Department official be-lieves that the circumstances justify


239


the issuance of a visa valid for multipleentries rather than for a specified num-ber of entries, and recommends thatthe alien be accorded an authorizationvalid for multiple entries, the informa-tion required by items (ii) and (iii)shall be furnished only with respect tothe initial entry. Item (ii) does notapply to a bona fide crewman. The con-sular officer or other State Departmentofficial shall be notified of the decisionon his recommendation. No appeal bythe alien shall lie from an adverse deci-sion made by a Service officer on therecommendation of a consular officeror other State Department official.

(2) Authority of consular officers to ap-prove section 212(d)(3)(A) recommenda-tions pertaining to aliens inadmissibleunder section 212(a)(28)(C). In certaincategories of visa cases defined by theSecretary of State, United States con-sular officers assigned to visa-issuingposts abroad may, on behalf of the At-torney General pursuant to section212(d)(3)(A) of the Act, approve a rec-ommendation by another consular offi-cer that an alien be admitted tempo-rarily despite visa ineligibility solelybecause the alien is of the class ofaliens defined at section 212(a)(28)(C) ofthe Act, as a result of presumed or ac-tual membership in, or affiliation with,an organization described in that sec-tion. Authorizations for temporary ad-mission granted by consular officersshall be subject to the terms specifiedin § 212.4(c) of this chapter. Any rec-ommendation which is not clearly ap-provable shall, and any recommenda-tion may, be presented to the appro-priate official of the Immigration andNaturalization Service for a deter-mination.

(b) Applications under section212(d)(3)(B). An application for the ex-ercise of discretion under section212(d)(3)(B) of the Act shall be sub-mitted on Form I–192 to the district di-rector in charge of the applicant’s in-tended port of entry prior to the appli-cant’s arrival in the United States.(For Department of State procedurewhen a visa is required, see 22 CFR41.95 and paragraph (a) of this section.)If the application is made because theapplicant may be inadmissible due topresent or past membership in or affili-ation with any Communist or other to-

talitarian party or organization, thereshall be attached to the application awritten statement of the history of theapplicant’s membership or affiliation,including the period of such member-ship or affiliation, whether the appli-cant held any office in the organiza-tion, and whether his membership oraffiliation was voluntary or involun-tary. If the applicant alleges that hismembership or affiliation was involun-tary, the statement shall include thebasis for that allegation. When the ap-plication is made because the applicantmay be inadmissible due to disease,mental or physical defect, or disabilityof any kind, the application shall de-scribe the disease, defect, or disability.If the purpose of seeking admission tothe United States is for treatment,there shall be attached to the applica-tion statements in writing to establishthat satisfactory treatment cannot beobtained outside the United States;that arrangements have been com-pleted for treatment, and where andfrom whom treatment will be received;what financial arrangements for pay-ment of expenses incurred in connec-tion with the treatment have beenmade, and that a bond will be availableif required. When the application ismade because the applicant may be in-admissible due to the conviction of oneor more crimes, the designation of eachcrime, the date and place of its com-mission and of the conviction thereof,and the sentence or other judgment ofthe court shall be stated in the applica-tion; in such a case the applicationshall be supplemented by the officialrecord of each conviction, and anyother documents relating to commuta-tion of sentence, parole, probation, orpardon. If the application is made atthe time of the applicant’s arrival tothe district director at a port of entry,the applicant shall establish that hewas not aware of the ground of inad-missibility and that it could not havebeen ascertained by the exercise of rea-sonable diligence, and he shall be inpossession of a passport and visa, if re-quired, or have been granted a waiverthereof. The applicant shall be notifiedof the decision and if the application isdenied of the reasons therefor and ofhis right to appeal to the Board within


240

8 CFR Ch. I (1–1–02 Edition)§ 212.4

15 days after the mailing of the notifi-cation of decision in accordance withthe Provisions of part 3 of this chapter.If denied, the denial shall be withoutprejudice to renewal of the applicationin the course of proceedings before aspecial inquiry officer under sections235 and 236 of the Act and this chapter.When an appeal may not be taken froma decision of a special inquiry officerexcluding an alien but the alien has ap-plied for the exercise of discretionunder section 212(d)(3)(B) of the Act,the alien may appeal to the Board froma denial of such application in accord-ance with the provisions of § 236.5(b) ofthis chapter.

(c) Terms of authorization. Each au-thorization under section 212(d)(3) (A)or (B) of the Act shall specify:

(1) Each section of law under whichthe alien is inadmissible;

(2) The intended date of each arrival;(3) The length of each stay author-

ized in the United States;(4) The purpose of each stay;(5) The number of entries for which

the authorization is valid;(6) The dates on or between which

each application for admission at portsof entry in the United States is valid;and

(7) The justification for exercisingthe authority contained in section212(d)(3) of the Act. If the consular offi-cer has recommended under section212(d)(3)(A), or an applicant under sec-tion 212(d)(3)(B) seeks, the issuance ofan authorization valid for multiple en-tries rather than for a specified numberof entries, and it is determined thatthe circumstances justify the issuanceof the authorization valid for mutipleentries, the information required byitems (2) and (3) shall be specified onlywith respect to the initial entry. Item(2) does not apply to a bona fide crew-man. Authorizations granted to crew-men may be valid for a maximum pe-riod of 2 years for application for ad-mission at U.S. ports of entry and maybe valid for multiple entries. An au-thorization issued in conjunction withan application for a nonresident alienborder crossing card shall be valid for aperiod not to exceed the validity ofsuch card for applications for admis-sion at U.S. ports of entry and shall bevalid for multiple entries. A multiple

entry authorization for a person otherthan a crewman or applicant for a bor-der crossing card may be made validfor a maximum period of 1 year for ap-plications for admission at U.S. portsof entry, except that a period in excessof 1 year may be permitted on the rec-ommendation of the Department ofState. A single entry authorization toapply for admission at a U.S. port ofentry shall not be valid for more than6 months from the date the authoriza-tion is issued. All admissions pursuantto section 212(d)(3) of the Act shall besubject to the terms and conditions setforth in the authorization. The periodfor which the alien’s admission is au-thorized pursuant to item (3) shall notexceed the period justified, subject tothe limitations specified in part 214 ofthis chapter for each class of non-immigrants. Each authorization shallspecify that it is subject to revocationat any time. Unless the alien appliesfor admission during the period of va-lidity of the authorization, a new au-thorization is required. An authoriza-tion may not be revalidated.

(d) Admission of groups inadmissibleunder section 212(a)(28) for attendance atinternational conferences. When the Sec-retary of State recommends that agroup of nonimmigrant aliens and theiraccompanying family members be ad-mitted to attend international con-ferences notwithstanding their inad-missibility under section 212(a)(28) ofthe Act, the Deputy Commissioner,may enter an order pursuant to the au-thority contained in section212(d)(3)(A) of the Act specifying theterms and conditions of their admis-sion and stay.

(e) Inadmissibility under section212(a)(1). Pursuant to the authoritycontained in section 212(d)(3) of theAct, the temporary admission of a non-immigrant visitor is authorized not-withstanding inadmissibility undersection 212(a)(1) of the Act, if suchalien is accompanied by a member ofhis/her family, or a guardian who willbe responsible for him/her during theperiod of admission authorized.

(f) Action upon alien’s arrival. Uponadmitting an alien who has been grant-ed the benefits of section 212(d)(3)(A) ofthe Act, the immigration officer shall


241


be guided by the conditions and limita-tions imposed in the authorization andnoted by the consular officer in thealien’s passport. When admitting anyalien who has been granted the benefitsof section 212(d)(3)(B) of the Act, theImmigration officer shall note on thearrival-departure record, Form I–94, orcrewman’s landing permit, Form I–95,issued to the alien, the conditions andlimitations imposed in the authoriza-tion.

(g) Authorizations issued to crewmenwithout limitation as to period of validity.When a crewman who has a valid sec-tion 212(d)(3) authorization withoutany time limitation comes to the at-tention of the Service, his travel docu-ment shall be endorsed to show thatthe validity of his section 212(d)(3) au-thorization expires as of a date sixmonths thereafter, and any previously-issued Form I–184 shall be lifted andForm I–95 shall be issued in its placeand similarly endorsed.

(h) Revocation. The Deputy Commis-sioner or the district director may atany time revoke a waiver previouslyauthorized under section 212(d)(3) ofthe Act and shall notify the non-immigrant in writing to that effect.

(i) Alien witnesses and informants—(1)Waivers under section 212(d)(1) of the Act.Upon the application of a federal orstate law enforcement authority(‘‘LEA’’), which shall include a state orfederal court or United States Attor-ney’s Office, pursuant to the filing ofForm I–854, Inter-Agency Alien Witnessand Informant Record, for non-immigrant classification described insection 101(a)(15)(S) of the Act, theCommissioner shall determine whethera ground of exclusion exists with re-spect to the alien for whom classifica-tion is sought and, if so, whether it isin the national interest to exercise thediscretion to waive the ground of ex-cludability, other than section212(a)(3)(E) of the Act. The Commis-sioner may at any time revoke a waiv-er previously authorized under section212(d)(1) of the Act. In the event theCommissioner decides to revoke a pre-viously authorized waiver for an S non-immigrant, the Assistant AttorneyGeneral, Criminal Division, and therelevant LEA shall be notified in writ-

ing to that effect. The Assistant Attor-ney General, Criminal Division, shallconcur in or object to the decision. Un-less the Assistant Attorney General,Criminal Division, objects within 7days, he or she shall be deemed to haveconcurred in the decision. In the eventof an objection by the Assistant Attor-ney General, Criminal Division, thematter will be expeditiously referred tothe Deputy Attorney General for afinal resolution. In no circumstancesshall the alien or the relevant LEAhave a right of appeal from any deci-sion to revoke.

(2) Grounds of removal. Nothing shallprohibit the Service from removingfrom the United States an alien classi-fied pursuant to section 101(a)(15)(S) ofthe Act for conduct committed afterthe alien has been admitted to theUnited States as an S nonimmigrant,or after the alien’s change to S classi-fication, or for conduct or a conditionundisclosed to the Attorney Generalprior to the alien’s admission in, orchange to, S classification, unless suchconduct or condition is waived prior toadmission and classification. In theevent the Commissioner decides to re-move an S nonimmigrant from theUnited States, the Assistant AttorneyGeneral, Criminal Division, and therelevant LEA shall be notified in writ-ing to that effect. The Assistant Attor-ney General, Criminal Division, shallconcur in or object to that decision.Unless the Assistant Attorney General,Criminal Division, objects within 7days, he or she shall be deemed to haveconcurred in the decision. In the eventof an objection by the Assistant Attor-ney General, Criminal Division, thematter will be expeditiously referred tothe Deputy Attorney General for afinal resolution. In no circumstancesshall the alien or the relevant LEAhave a right of appeal from any deci-sion to remove.

[29 FR 15252, Nov. 13, 1964, as amended at 30FR 12330, Sept. 28, 1965; 31 FR 10413, Aug. 3,1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb.17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470,July 21, 1975; 51 FR 32295, Sept. 10, 1986; 53 FR40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 1995;60 FR 52248, Oct. 5, 1995]


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8 CFR Ch. I (1–1–02 Edition)§ 212.5

§ 212.5 Parole of aliens into the UnitedStates.

(a) The authority of the Commis-sioner to continue an alien in custodyor grant parole under section212(d)(5)(A) of the Act shall be exer-cised by the district director or chiefpatrol agent, subject to the parole anddetention authority of the Commis-sioner or her designees, which includethe Deputy Commissioner, the Execu-tive Associate Commissioner for FieldOperations, and the regional director,any of whom in the exercise of discre-tion may invoke this authority undersection 212(d)(5)(A) of the Act.

(b) The parole of aliens within thefollowing groups who have been or aredetained in accordance with § 235.3(b) or(c) of this chapter would generally bejustified only on a case-by-case basisfor ‘‘urgent humanitarian reasons’’ or‘‘significant public benefit,’’ providedthe aliens present neither a securityrisk nor a risk of absconding:

(1) Aliens who have serious medicalconditions in which continued deten-tion would not be appropriate;

(2) Women who have been medicallycertified as pregnant;

(3) Aliens who are defined as juve-niles in § 236.3(a) of this chapter. Thedistrict director or chief patrol agentshall follow the guidelines set forth in§ 236.3(a) of this chapter and paragraphs(b)(3)(i) through (iii) of this section indetermining under what conditions ajuvenile should be paroled from deten-tion:

(i) Juveniles may be released to a rel-ative (brother, sister, aunt, uncle, orgrandparent) not in Service detentionwho is willing to sponsor a minor andthe minor may be released to that rel-ative notwithstanding that the juve-nile has a relative who is in detention.

(ii) If a relative who is not in deten-tion cannot be located to sponsor theminor, the minor may be released withan accompanying relative who is in de-tention.

(iii) If the Service cannot locate arelative in or out of detention to spon-sor the minor, but the minor has iden-tified a non-relative in detention whoaccompanied him or her on arrival, thequestion of releasing the minor and theaccompanying non-relative adult shallbe addressed on a case-by-case basis;

(4) Aliens who will be witnesses inproceedings being, or to be, conductedby judicial, administrative, or legisla-tive bodies in the United States; or

(5) Aliens whose continued detentionis not in the public interest as deter-mined by the district director or chiefpatrol agent.

(c) In the cases of all other arrivingaliens, except those detained under§ 235.3(b) or (c) of this chapter and para-graph (b) of this section, the districtdirector or chief patrol agent may,after review of the individual case, pa-role into the United States temporarilyin accordance with section 212(d)(5)(A)of the Act, any alien applicant for ad-mission, under such terms and condi-tions, including those set forth in para-graph (d) of this section, as he or shemay deem appropriate. An alien whoarrives at a port-of-entry and appliesfor parole into the United States forthe sole purpose of seeking adjustmentof status under section 245A of the Act,without benefit of advance authoriza-tion as described in paragraph (f) ofthis section shall be denied parole anddetained for removal in accordancewith the provisions of § 235.3(b) or (c) ofthis chapter. An alien seeking to enterthe United States for the sole purposeof applying for adjustment of statusunder section 210 of the Act shall be de-nied parole and detained for removalunder § 235.3(b) or (c) of this chapter,unless the alien has been recommendedfor approval of such application for ad-justment by a consular officer at anOverseas Processing Office.

(d) Conditions. In any case where analien is paroled under paragraph (b) or(c) of this section, the district directoror chief patrol agent may require rea-sonable assurances that the alien willappear at all hearings and/or depart theUnited States when required to do so.Not all factors listed need be presentfor parole to be exercised. The districtdirector or chief patrol agent shouldapply reasonable discretion. The con-sideration of all relevant factors in-cludes:

(1) The giving of an undertaking bythe applicant, counsel, or a sponsor toensure appearances or departure, and abond may be required on Form I–352 insuch amount as the district director or


243


chief patrol agent may deem appro-priate;

(2) Community ties such as close rel-atives with known addresses; and

(3) Agreement to reasonable condi-tions (such as periodic reporting ofwhereabouts).

(e) Termination of parole—(1) Auto-matic. Parole shall be automaticallyterminated without written notice (i)upon the departure from the UnitedStates of the alien, or, (ii) if not de-parted, at the expiration of the timefor which parole was authorized, and inthe latter case the alien shall be proc-essed in accordance with paragraph(e)(2) of this section except that nowritten notice shall be required.

(2)(i) On notice. In cases not coveredby paragraph (e)(1) of this section,upon accomplishment of the purposefor which parole was authorized orwhen in the opinion of the district di-rector or chief patrol agent in chargeof the area in which the alien is lo-cated, neither humanitarian reasonsnor public benefit warrants the contin-ued presence of the alien in the UnitedStates, parole shall be terminated uponwritten notice to the alien and he orshe shall be restored to the status thathe or she had at the time of parole.When a charging document is served onthe alien, the charging document willconstitute written notice of termi-nation of parole, unless otherwise spec-ified. Any further inspection or hearingshall be conducted under section 235 or240 of the Act and this chapter, or anyorder of exclusion, deportation, or re-moval previously entered shall be exe-cuted. If the exclusion, deportation, orremoval order cannot be executed byremoval within a reasonable time, thealien shall again be released on paroleunless in the opinion of the district di-rector or the chief patrol agent thepublic interest requires that the alienbe continued in custody.

(ii) An alien who is granted paroleinto the United States after enactmentof the Immigration Reform and ControlAct of 1986 for other than the specificpurpose of applying for adjustment ofstatus under section 245A of the Actshall not be permitted to avail him orherself of the privilege of adjustmentthereunder. Failure to abide by this

provision through making such an ap-plication will subject the alien to ter-mination of parole status and institu-tion of proceedings under sections 235and 236 of the Act without the writtennotice of termination required by§ 212.5(e)(2)(i) of this chapter.

(f) Advance authorization. When pa-role is authorized for an alien who willtravel to the United States without avisa, the alien shall be issued Form I–512.

(g) Parole for certain Cuban nationals.Notwithstanding any other provisionrespecting parole, the determinationwhether to release on parole, or to re-voke the parole of, a native of Cubawho last came to the United States be-tween April 15, 1980, and October 20,1980, shall be governed by the terms of§ 212.12.

(h) Effect of parole of Cuban and Hai-tian nationals. (1) Except as provided inparagraph (h)(2) of this section, any na-tional of Cuba or Haiti who was paroledinto the United States on or after Oc-tober 10, 1980, shall be considered tohave been paroled in the special statusfor nationals of Cuba or Haiti, referredto in section 501(e)(1) of the RefugeeEducation Assistance Act of 1980, Pub-lic Law 96–422, as amended (8 U.S.C.1522 note).

(2) A national of Cuba or Haiti shallnot be considered to have been paroledin the special status for nationals ofCuba or Haiti, referred to in section501(e)(1) of the Refugee Education As-sistance Act of 1980, Public Law 96–422,as amended, if the individual was pa-roled into the United States:

(i) In the custody of a Federal, Stateor local law enforcement or prosecu-torial authority, for purposes of crimi-nal prosecution in the United States;or

(ii) Solely to testify as a witness inproceedings before a judicial, adminis-trative, or legislative body in theUnited States.

[47 FR 30045, July 9, 1982, as amended at 47FR 46494, Oct. 19, 1982; 52 FR 16194, May 1,1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450,May 17, 1988; 61 FR 36611, July 12, 1996; 62 FR10348, Mar. 6, 1997; 65 FR 80294, Dec. 21, 2000;65 FR 82255, Dec. 28, 2000]


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8 CFR Ch. I (1–1–02 Edition)§ 212.6

§ 212.6 Nonresident alien border cross-ing cards.

(a) Use—(1) Nonresident alien Cana-dian border crossing card, Form I–185.Any Canadian citizen or British subjectresiding in Canada may use Form I–185for entry at a United States port ofentry.

(2) Mexican border crossing card, FormI–186 or I–586. The rightful holder of anonresident alien Mexican bordercrossing card, Form I–186 or I–586, maybe admitted under § 235.1(f) of thischapter if found otherwise admissible.However, any alien seeking entry as avisitor for business or pleasure mustalso present a valid passport and shallbe issued Form I–94 if the alien is ap-plying for admission from:

(i) A country other than Mexico orCanada, or

(ii) Canada if the alien has been in acountry other than the United Statesor Canada since leaving Mexico.

(b) Application. A citizen of Canada ora British subject residing in Canadamust apply on Form I–175 for a non-resident alien border crossing card,supporting his/her application with evi-dence of Canadian or British citizen-ship, residence in Canada, and two pho-tographs, size 11⁄2″ × 11⁄2″. Form I–175must be submitted to an immigrationofficer at a Canadian border port ofentry. A citizen of Mexico must applyon Form I–190 for a nonresident alienborder crossing card, supporting his ap-plication with evidence of Mexicancitizenship and residence, a valid unex-pired passport or a valid Mexican Form13, and one color photograph with awhite background. The photographmust be glossy, unretouched and notmounted. Dimension of the facialimage must be approximately one inchfrom chin to top of hair, and the appli-cant must be shown in 3⁄4 frontal viewshowing right side of face with rightear visible. Form I–190 must be sub-mitted to an immigration officer at aMexican border port of entry or to anAmerican consular officer in Mexico,other than one assigned to a consulatesituated adjacent to the border be-tween Mexico and the United States;however, Form FS–257 may be used inlieu of Form I–190 when the applicationis made to an American consular offi-cer. If the application is submitted to

an immigration officer, each applicant,regardless of age, must appear in per-son for an interview concerning eligi-bility for a nonresident alien bordercrossing card. If the application is sub-mitted to a consular officer, each ap-plicant, except a child under fourteenyears of age, must appear in person forthe interview. If the application is de-nied, the applicant shall be given a no-tice of denial with the reasons on FormI–180. There is no appeal from the de-nial but the denial is without prejudiceto a subsequent application for a visaor for admission to the United States.

(c) Validity. Notwithstanding any ex-piration dates which may appear there-on, Forms I–185, I–186, and I–586, arevalid until revoked or voided.

(d) Voidance—(1) At port of entry.Forms I–185, I–186 and I–586 may be de-clared void by a supervisory immigra-tion officer at a port of entry. If thecard is declared void, the applicantshall be advised in writing that he/shemay request a hearing before an immi-gration judge to determine his/her ad-missibility in accordance with part 236of this chapter and may be representedat this hearing by an attorney of his/her own choice at no expense to theGovernment. He/she shall also be ad-vised of the availability of free legalservices provided by organizations andattorneys qualified under part 3 of thischapter and organizations recognizedunder § 292.2 of this chapter, located inthe district where the exclusion hear-ing is to be held. If the applicant re-quests a hearing, Forms I–185, I–186 andI–586 shall be held at the port of entryfor presentation to the immigrationjudge. If the applicant chooses not tohave a hearing, the card shall be void-ed. The alien to whom the form wasissued shall be notified of the actiontaken and the reasons therefore bymeans of form I–180 delivered in personor, if such action is not possible, bymailing the Form I–180 to the lastknown address.

(2) Within the United States. If theholder of a Form I–185, I–186 or I–586 isplaced under deportation proceedings,no action to void the card shall betaken pending the outcome of the hear-ing. If the alien is ordered deported orgranted voluntary departure, the card


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shall be voided by an immigration offi-cer. In the case of an alien holder of aForm I–185, I–186 or I–586 who is grant-ed voluntary departure without a hear-ing, the card may be declared void byan immigration officer who is author-ized to issue an Order to Show Cause orto grant voluntary departure.

(3) In Mexico or Canada. Forms I–185,I–186 or I–586 may be declared void by aconsular officer in Mexico or Canada ifthe card was issued in one of thosecountries.

(4) Grounds. Grounds for voidance of aForm I–185, I–186 or I–586 shall be thatthe holder has violated the immigra-tion laws; that he/she is inadmissibleto the United States; or that he/she hasabandoned his/her residence in thecountry upon which the card wasgranted.

(e) Replacement. If a nonresident alienborder crossing card has been lost, sto-len, mutilated, or destroyed, the personto show the card was issued may applyfor a new card as provided for in thissection. A fee as prescribed in§ 103.7(b)(1) of this chapter must be sub-mitted at time of application for thereplacement card. The holder of aForm I–185, I–186, or I–586 which is inpoor condition because of improperproduction may be issued a new formwithout submitting fee or applicationupon surrendering the original card.

(f) Previous removal or deportation;waiver of inadmissibility. Pursuant tothe authority contained in section 212(d)(3) of the Act, the temporary admis-sion of an alien who is inadmissibleunder paragraph (16) or (17) of section212(a) of the Act is authorized if suchalien is in possession of a Mexican Non-resident Alien Border Crossing Cardand he establishes that he is otherwiseadmissible as a nonimmigrant visitoror student except for his removal or de-portation prior to November 1, 1956, be-cause of entry without inspection orlack of required documents.

[30 FR 10184, Aug. 17, 1965, as amended at 34FR 129, Jan. 4, 1969; 35 FR 3065, Feb. 17, 1970;37 FR 7584, Apr. 18, 1972; 37 FR 8061, Apr. 25,1972; 45 FR 11114, Feb. 20, 1980; 46 FR 25082,May 5, 1981; 48 FR 35349, Aug. 4, 1983; 60 FR40068, Aug. 7, 1995; 62 FR 9074, Feb. 28, 1997; 62FR 10349, Mar. 6, 1997]

§ 212.7 Waiver of certain grounds of in-admissibility.

(a) General—(1) Filing procedure—(i)Immigrant visa or K nonimmigrant visaapplicant. An applicant for an immi-grant visa or ‘‘K’’ nonimmigrant visawho is inadmissible and seeks a waiverof inadmissibility shall file an applica-tion on Form I–601 at the consular of-fice considering the visa application.Upon determining that the alien is ad-missible except for the grounds forwhich a waiver is sought, the consularofficer shall transmit the Form I–601 tothe Service for decision.

(ii) Adjustment of status applicant. Anapplicant for adjustment of status whois excludable and seeks a waiver undersection 212(h) or (i) of the Act shall filean application on Form I–601 with thedirector or immigration judge consid-ering the application for adjustment ofstatus.

(iii) Parole authorization applicantunder § 245.15(t). An applicant for paroleauthorization under § 245.15(t) of thischapter who is inadmissible and seeksa waiver under section 212(h) or (i) ofthe Act must file an application onForm I–601 with the Director of the Ne-braska Service Center considering theForm I–131.

(iv) Parole authorization applicantunder § 245.13(k)(2) of this chapter. Anapplicant for parole authorizationunder § 245.13(k)(2) of this chapter whois inadmissible and seeks a waiverunder section 212(h) or (i) of the Actmust file an application on Form I–601with the Director of the Texas ServiceCenter adjudicating the Form I–131.

(2) Termination of application for lackof prosecution. An applicant may with-draw the application at any time priorto the final decision, whereupon thecase will be closed and the consulatenotified. If the applicant fails to pros-ecute the application within a reason-able time either before or after inter-view the applicant shall be notifiedthat if he or she fails to prosecute theapplication within 30 days the case willbe closed subject to being reopened atthe applicant’s request. If no actionhas been taken within the 30-day pe-riod immediately thereafter, the casewill be closed and the appropriate con-sul notified.


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(3) Decision. If the application is ap-proved the director shall completeForm I–607 for inclusion in the alien’sfile and shall notify the alien of the de-cision. If the application is denied theapplicant shall be notified of the deci-sion, of the reasons therefor, and of theright to appeal in accordance with part103 of this chapter.

(4) Validity. A waiver granted undersection 212(h) or section 212(i) of theAct shall apply only to those groundsof excludability and to those crimes,events or incidents specified in the ap-plication for waiver. Once granted, thewaiver shall be valid indefinitely, evenif the recipient of the waiver laterabandons or otherwise loses lawful per-manent resident status, except thatany waiver which is granted to an alienwho obtains lawful permanent resi-dence on a conditional basis under sec-tion 216 of the Act shall automaticallyterminate concurrently with the termi-nation of such residence pursuant tothe provisions of section 216. Separatenotification of the termination of thewaiver is not required when an alien isnotified of the termination of residenceunder section 216 of the Act, and no ap-peal shall lie from the decision to ter-minate the waiver on this basis. How-ever, if the respondent is found not tobe deportable in a deportation pro-ceeding based on the termination, thewaiver shall again become effective.Nothing in this subsection shall pre-clude the director from reconsidering adecision to approve a waiver if the de-cision is determined to have been madein error.

(b) Section 212(g) (tuberculosis and cer-tain mental conditions)—(1) General. Anyalien who is ineligible for a visa and isexcluded from admission into theUnited States under section 212(a) (1),(3), or (6) of the Act may file an Appli-cation for Waiver of Grounds of Exclud-ability (Form I–601) under section212(g) of the Act at an office designatedin paragraph (2). The family memberspecified in section 212(g) of the Actmay file the waiver for the applicant ifthe applicant is incompetent to file thewaiver personally.

(2) Locations for filing Form I–601.Form I–601 may be filed at any one ofthe following offices:

(i) The American consulate where theapplication for a visa is being consid-ered if the alien is outside the UnitedStates;

(ii) The Service office having juris-diction over the port of entry wherethe alien is applying for admission intothe United States;

(iii) The Service office having juris-diction over the alien if the alien is inthe United States;

(iv) The Nebraska Service Center, ifthe alien is outside the United Statesand seeking parole authorization under§ 245.15(t)(2) of this chapter; or

(v) The Texas Service Center if thealien is outside the United States andis seeking parole authorization under§ 245.13(k)(2) of this chapter.

(3) Section 212(a)(6) (tuberculosis). Ifthe alien is excludable under section212(a)(6) of the Act because of tuber-culosis, he shall execute Statement Aon the reverse of page 1 of Form I–601.In addition, he or his sponsor in theUnited States is responsible for havingStatement B executed by the physicianor health facility which has agreed tosupply treatment or observation; and,if required, Statement C shall be exe-cuted by the appropriate local or Statehealth officer.

(4) Section 212(a) (1) or (3) (certain men-tal conditions)—(i) Arrangements for sub-mission of medical report. If the alien isexcludable under section 212(a) (1) or (3)(because of mental retardation or be-cause of a past history of mental ill-ness) he or his sponsoring family mem-ber shall submit an executed Form I–601 to the consular or Service officewith a statement that arrangementshave been made for the submission tothat office of a medical report. Themedical report shall contain a com-plete medical history of the alien, in-cluding details of any hospitalizationor institutional care or treatment forany physical or mental condition; find-ings as to the current physical condi-tion of the alien, including reports ofchest X-ray examination and of sero-logic test for syphilis if the alien is 15years of age or over, and other perti-nent diagnostic tests; and findings asto the current mental condition of thealien, with information as to prognosisand life expectancy and with a reportof a psychiatric examination conducted


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by a psychiatrist who shall, in case ofmental retardation, also provide anevaluation of the alien’s intelligence.For an alien with a past history ofmental illness, the medical report shallalso contain available information onwhich the U.S. Public Health Servicecan base a finding as to whether thealien has been free of such mental ill-ness for a period of time sufficient inthe light of such history to dem-onstrate recovery. Upon receipt of themedical report, the consular or Serviceoffice shall refer it to the U.S. PublicHealth Service for review.

(ii) Submission of statement. Uponbeing notified that the medical reporthas been reviewed by the U.S. PublicHealth Service and determined to beacceptable, the alien or the alien’ssponsoring family member shall sub-mit a statement to the consular orService office. The statement must befrom a clinic, hospital, institution, spe-cialized facility, or specialist in theUnited States approved by the U.S.Public Health Service. The alien oralien’s sponsor may be referred to themental retardation or mental healthagency of the state of proposed resi-dence for guidance in selecting a post-arrival medical examining authoritywho will complete the evaluation andprovide an evaluation report to theCenters for Disease Control. The state-ment must specify the name and ad-dress of the specialized facility, or spe-cialist, and must affirm that:

(A) The specified facility or specialistagrees to evaluate the alien’s mentalstatus and prepare a complete report ofthe findings of such evaluation.

(B) The alien, the alien’s sponsoringfamily member, or another responsibleperson has made complete financial ar-rangements for payment of any chargesthat may be incurred after arrival forstudies, care, training and service;

(C) The Director, Division of Quar-antine, Center for Prevention Services,Centers for Disease Control, Atlanta,GA. 30333 shall be furnished:

(1) The report evaluating the alien’smental status within 30 days after thealien’s arrival; and

(2) Prompt notification of the alien’sfailure to report to the facility or spe-cialist within 30 days after being noti-fied by the U.S. Public Health Service

that the alien has arrived in the UnitedStates.

(D) The alien shall be in an out-patient, inpatient, study, or other spec-ified status as determined by the re-sponsible local physcian or specialistduring the initial evaluation.

(5) Assurances: Bonds. In all casesunder paragraph (b) of this section thealien or his or her sponsoring familymember shall also submit an assurancethat the alien will comply with anyspecial travel requirements as may bespecified by the U.S. Public HealthService and that, upon the admissionof the alien into the United States, heor she will proceed directly to the fa-cility or specialist specified for the ini-tial evaluation, and will submit to suchfurther examinations or treatment asmay be required, whether in an out-patient, inpatient, or other status. Thealien, his or her sponsoring familymember, or other responsible personshall provide such assurances or bondas may be required to assure that thenecessary expenses of the alien will bemet and that he or she will not becomea public charge. For procedures relat-ing to cancellation or breaching ofbonds, see part 103 of this chapter.

(c) Section 212(e). (1) An alien who wasadmitted to the United States as an ex-change visitor, or who acquired thatstatus after admission, is subject tothe foreign residence requirement ofsection 212(e) of the Act if his or herparticipation in an exchange programwas financed in whole or in part, di-rectly or indirectly, by a United Statesgovernment agency or by the govern-ment of the country of his or her na-tionality or last foreign residence.

(2) An alien is also subject to the for-eign residence requirement of section212(e) of the Act if at the time of ad-mission to the United States as an ex-change visitor or at the time of acqui-sition of exchange visitor status afteradmission to the United States, thealien was a national or lawful perma-nent resident of a country which theDirector of the United States Informa-tion Agency had designated, throughpublic notice in the FEDERAL REGISTER,as clearly requiring the services of per-sons engaged in the field of specializedknowledge or skill in which the alien


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8 CFR Ch. I (1–1–02 Edition)§ 212.7

was to engage in his or her exchangevisitor program.

(3) An alien is also subject to the for-eign residence requirement of section212(e) of the Act if he or she was admit-ted to the United States as an ex-change visitor on or after January 10,1977 to receive graduate medical edu-cation or training, or following admis-sion, acquired such status on or afterthat date for that purpose. However, anexchange visitor already participatingin an exchange program of graduatemedical education or training as ofJanuary 9, 1977 who was not then sub-ject to the foreign residence require-ment of section 212(e) and who proceedsor has proceeded abroad temporarilyand is returning to the United Statesto participate in the same program,continues to be exempt from the for-eign residence requirement.

(4) A spouse or child admitted to theUnited States or accorded status undersection 101(a)(15)(J) of the Act to ac-company or follow to join an exchangevisitor who is subject to the foreignresidence requirement of section 212(e)of the Act is also subject to that re-quirement.

(5) An alien who is subject to the for-eign residence requirement and who be-lieves that compliance therewith wouldimpose exceptional hardship upon his/her spouse or child who is a citizen ofthe United States or a lawful perma-nent resident alien, or that he or shecannot return to the country of his orher nationality or last residence be-cause he or she will be subject to perse-cution on account of race, religion, orpolitical opinion, may apply for a waiv-er on Form I–612. The alien’s spouseand minor children, if also subject tothe foreign residence requirement, maybe included in the application, providedthe spouse has not been a participantin an exchange program.

(6) Each application based upon aclaim to exceptional hardship must beaccompanied by the certificate of mar-riage between the applicant and his orher spouse and proof of legal termi-nation of all previous marriages of theapplicant and spouse; the birth certifi-cate of any child who is a UnitedStates citizen or lawful permanentresident alien, if the application isbased upon a claim of exceptional hard-

ship to a child, and evidence of theUnited States citizenship of the appli-cant’s spouse or child, when the appli-cation is based upon a claim of excep-tional hardship to a spouse or childwho is a citizen of the United States.

(7) Evidence of United States citizen-ship and of status as a lawful perma-nent resident shall be in the form pro-vided in part 204 of this chapter. An ap-plication based upon exceptional hard-ship shall be supported by a statement,dated and signed by the applicant, giv-ing a detailed explanation of the basisfor his or her belief that his or hercompliance with the foreign residencerequirement of section 212(e) of theAct, as amended, would impose excep-tional hardship upon his or her spouseor child who is a citizen of the UnitedStates or a lawful permanent residentthereof. The statement shall includeall pertinent information concerningthe incomes and savings of the appli-cant and spouse. If exceptional hard-ship is claimed upon medical grounds,the applicant shall submit a medicalcertificate from a qualified physiciansetting forth in terms understandableto a layman the nature and effect ofthe illness and prognosis as to the pe-riod of time the spouse or child will re-quire care or treatment.

(8) An application based upon the ap-plicant’s belief that he or she cannotreturn to the country of his or her na-tionality or last residence because theapplicant would be subject to persecu-tion on account of race, religion, or po-litical opinion, must be supported by astatement, dated and signed by the ap-plicant, setting forth in detail why theapplicant believes he or she would besubject to persecution.

(9) Waivers under Pub. L. 103–416 basedon a request by a State Department ofPublic Health (or equivalent). In accord-ance with section 220 of Pub. L. 103–416,an alien admitted to the United Statesas a nonimmigrant under section101(a)(15)(J) of the Act, or who acquiredstatus under section 101(a)(15)(J) of theAct after admission to the UnitedStates, to participate in an exchangeprogram of graduate medical educationor training (as of January 9, 1977), mayapply for a waiver of the 2-year home


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country residence and physical pres-ence requirement (the ‘‘2-year require-ment’’) under section 212(e)(iii) of theAct based on a request by a State De-partment of Pubic Health, or its equiv-alent. To initiate the application for awaiver under Pub. L. 103–416, the De-partment of Public Health, or itsequivalent, or the State in which theforeign medical graduate seeks to prac-tice medicine, must request the Direc-tor of USIA to recommend a waiver tothe Service. The waiver may be grant-ed only if the Director of USIA pro-vides the Service with a favorablewaiver recommendation. Only theService, however, may grant or denythe waiver application. If granted, sucha waiver shall be subject to the termsand conditions imposed under section214(l) of the Act (as redesignated bysection 671(a)(3)(A) of Pub. L. 104–208).Although the alien is not required tosubmit a separate waiver applicationto the Service, the burden rests on thealien to establish eligibility for thewaiver. If the Service approves a waiv-er request made under Pub. L. 103–416,the foreign medical graduate (and ac-companying dependents) may apply forchange of nonimmigrant status, fromJ–1 to H–1B and, in the case of depend-ents of such a foreign medical grad-uate, from J–2 to H–4. Aliens receivingwaivers under section 220 of Pub. L.103–416 are subject, in all cases, to theprovisions of section 214(g)(1)(A) of theAct.

(i) Eligiblity criteria. J–1 foreign med-ical graduates (with accompanying J–2dependents) are eligible to apply for awaiver of the 2-year requirement underPub. L. 103–416 based on a request by aState Department of Public Health (orits equivalent) if:

(A) They were admitted to the UnitedStates under section 101(a)(15)(J) of theAct, or acquired J nonimmigrant sta-tus before June 1, 2002, to pursue grad-uate medical education or training inthe United States.

(B) They have entered into a bonafide, full-time employment contract for3 years to practice medicine at a healthcare facility located in an area or areasdesignated by the Secretary of Healthand Human Services as having a short-age of health care professionals (‘‘HHS-designated shortage area’’);

(C) They agree to commence employ-ment within 90 days of receipt of thewaiver under this section and agree topractice medicine for 3 years at the fa-cility named in the waiver applicationand only in HHS-designated shortageareas. The health care facility namedin the waiver application may be oper-ated by:

(1) An agency of the Government ofthe United States or of the State inwhich it is located; or

(2) A charitable, educational, orother not-for-profit organization; or

(3) Private medical practitioners.(D) The Department of Public Health,

or its equivalent, in the State wherethe health care facility is located hasrequested the Director, USIA, to rec-ommend the waiver, and the Director,USIA, submits a favorable waiver rec-ommendation to the Service; and

(E) Approval of the waiver will notcause the number of waivers grantedpursuant to Pub. L. 103–416 and thissection to foreign medical graduateswho will practice medicine in the samestate to exceed 20 during the currentfiscal year.

(ii) Decision on waivers under Pub. L.103–416 and notification to the alien—(A)Approval. If the Director of USIA sub-mits a favorable waiver recommenda-tion on behalf of a foreign medicalgraduate pursuant to Pub. L. 103–416,and the Service grants the waiver, thealien shall be notified of the approvalon Form I–797 (or I–797A or I–797B, asappropriate). The approval notice shallclearly state the terms and conditionsimposed on the waiver, and the Serv-ice’s records shall be noted accord-ingly.

(B) Denial. If the Director of USIAissues a favorable waiver recommenda-tion under Pub. L. 103–416 and the Serv-ice denies the waiver, the alien shall benotified of the decision and of the rightto appeal under 8 CFR part 103. How-ever, no appeal shall lie where the basisfor denial is that the number of waiv-ers granted to the State in which theforeign medical graduate will be em-ployed would exceed 20 for that fiscalyear.

(iii) Conditions. The foreign medicalgraduate must agree to commence em-ployment for the health care facilityspecified in the waiver application


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8 CFR Ch. I (1–1–02 Edition)§ 212.7

within 90 days of receipt of the waiverunder Pub. L. 103–416. The foreign med-ical graduate may only fulfill the req-uisite 3-year employment contract asan H–1B nonimmigrant. A foreign med-ical graduate who receives a waiverunder Pub. L. 103–416 based on a re-quest by a State Department of PublicHealth (or equivalent), and changes hisor her nonimmigrant classificationfrom J–1 to H–1B, may not apply forpermanent residence or for any otherchange of nonimmigrant classificationunless he or she has fulfilled the 3-yearemployment contract with the healthcare facility and in the specified HHS-designated shortage area named in thewaiver application.

(iv) Failure to fulfill the three-year em-ployment contract due to extenuating cir-cumstances. A foreign medical graduatewho fails to meet the terms and condi-tions imposed on the waiver under sec-tion 214(l) of the Act and this para-graph will once again become subjectto the 2-year requirement under sec-tion 212(e) of the Act.

Under section 214(l)(1)(B) of the Act,however, the Service, in the exercise ofdiscretion, may excuse early termi-nation of the foreign medical grad-uate’s 3-year period of employmentwith the health care facility named inthe waiver application due to extenu-ating circumstances. Extenuating cir-cumstances may include, but are notlimited to, closure of the health carefacility or hardship to the alien. In de-termining whether to excuse such earlytermination of employment, the Serv-ice shall base its decision on the spe-cific facts of each case. In all cases, theburden of establishing eligibility for afavorable exercise of discretion restswith the foreign medical graduate. De-pending on the circumstances, closureof the health care facility named in thewaiver application may, but need not,be considered an extenuating cir-cumstance excusing early terminationof employment. Under no cir-cumstances will a foreign medicalgraduate be eligible to apply forchange of status to another non-immigrant category, for an immigrantvisa or for status as a lawful perma-nent resident prior to completing therequisite 3-year period of employment

for a health care facility located in anHHS-designated shortage area.

(v) Required evidence. A foreign med-ical graduate who seeks to have earlytermination of employment excuseddue to extenuating circumstances shallsubmit documentary evidence estab-lishing such a claim. In all cases, theforeign medical graduate shall submitan employment contract with anotherhealth care facility located in an HHS-designated shortage area for the bal-ance of the required 3-year period ofemployment. A foreign medical grad-uate claiming extenuating cir-cumstances based on hardship shallalso submit evidence establishing thatsuch hardship was caused by unfore-seen circumstances beyond his or hercontrol. A foreign medical graduateclaiming extenuating circumstancesbased on closure of the health care fa-cility named in the waiver applicationshall also submit evidence that the fa-cility has closed or is about to beclosed.

(vi) Notification requirements. A J–1foreign medical graduate who has beengranted a waiver of the 2-year require-ment pursuant to Pub. L. 103–416, is re-quired to comply with the terms andconditions specified in section 214(l) ofthe Act and the implementing regula-tions in this section. If the foreignmedical graduate subsequently appliesfor and receives H–1B status, he or shemust also comply with the terms andconditions of that nonimmigrant sta-tus. Such compliance shall also includenotifying the Service of any materialchange in the terms and conditions ofthe H–1B employment, by filing eitheran amended or a new H–1B petition, asrequired, under §§ 214.2(h)(2)(i)(D),214.2(h)(2)(i)(E), and 214.2(h)(11) of thischapter.

(A) Amended H–1B petitions. Thehealth care facility named in the waiv-er application and H–1B petition shallfile an amended H–1B petition, as re-quired under § 214.2(h)(2)(i)(E) of thischapter, if there are any materialchanges in the terms and conditions ofthe beneficiary’s employment or eligi-bility as specified in the waiver appli-cation filed under Pub. L. 103–416 andin the subsequent H–1B petition. Insuch a case, an amended H–1B petitionshall be accompanied by evidence that


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the alien will continue practicing med-icine with the original employer in anHHS-designated shortage area.

(B) New H–1B petitions. A health carefacility seeking to employ a foreignmedical graduate who has been granteda waiver under Pub. L. 103–416 (prior tothe time the alien has completed his orher 3-year contract with the facilitynamed in the waiver application andoriginal H–1B petition), shall file a newH–1B petition with the Service, as re-quired under §§ 214.2(h)(2)(i) (D) and (E)of this chapter. Although a new waiverapplication need not be filed, the newH–1B petition shall be accompanied bythe documentary evidence generallyrequired under § 214.2(h) of this chapter,and the following additional docu-ments:

(1) A copy of Form I–797 (and/or I–797A and I–797B) relating to the waiverand nonimmigrant H status grantedunder Pub. L. 103–416;

(2) An explanation from the foreignmedical graduate, with supporting evi-dence, establishing that extenuatingcircumstances necessitate a change inemployment;

(3) An employment contract estab-lishing that the foreign medical grad-uate will practice medicine at thehealth care facility named in the newH–1B petition for the balance of the re-quired 3-year period; and

(4) Evidence that the geographic areaor areas of intended employment indi-cated in the new H–1B petition are inHHS-designated shortage areas.

(C) Review of amended and new H–1Bpetitions for foreign medical graduatesgranted waivers under Pub. L. 103–416and who seek to have early termination ofemployment excused due to extenuatingcircumstances—(1) Amended H–1B peti-tions. The waiver granted under Pub. L.103–416 may be affirmed, and theamended H–1B petition may be ap-proved, if the petitioning health carefacility establishes that the foreignmedical graduate otherwise remains el-igible for H–1B classification and thathe or she will continue practicing med-icine in an HHS-designated shortagearea.

(2) New H–1B petitions. The Serviceshall review a new H–1B petition filedon behalf of a foreign medical graduatewho has not yet fulfilled the required 3-

year period of employment with thehealth care facility named in the waiv-er application and in the original H–1Bpetition to determine whether extenu-ating circumstances exist which war-rant a change in employment, andwhether the waiver granted under Pub.L. 103–416 should be affirmed. In con-ducting such a review, the Serviceshall determine whether the foreignmedical graduate will continue prac-ticing medicine in an HHS-designatedshortage area, and whether the new H–1B petitioner and the foreign medicalgraduate have satisfied the remainingH–1B eligibility criteria describedunder section 101(a)(15)(H) of the Actand § 214.2(h) of this chapter. If thesecriteria have been satisfied, the waivergranted to the foreign medical grad-uate under Pub. L. 103–416 may be af-firmed, and the new H1–B petition maybe approved in the exercise of discre-tion, thereby permitting the foreignmedical graduate to serve the balanceof the requisite 3-year employment pe-riod at the health care facility namedin the new H–1B petition.

(D) Failure to notify the Service of anymaterial changes in employment. Foreignmedical graduates who have beengranted a waiver of the 2-year require-ment and who have obtained H–1B sta-tus under Pub. L. 103–416 but fail to:Properly notify the Service of any ma-terial change in the terms and condi-tions of their H–1B employment, byhaving their employer file an amendedor a new H–1B petition in accordancewith this section and § 214.2(h) of thischapter; or establish continued eligi-bility for the waiver and H–1B status,shall (together with their dependents)again become subject to the 2-year re-quirement. Such foreign medical grad-uates and their accompanying H–4 de-pendents also become subject to depor-tation under section 241(a)(1)(C)(i) ofthe Act.

(10) The applicant and his or herspouse may be interviewed by an immi-gration officer in connection with theapplication and consultation may behad with the Director, United StatesInformation Agency and the sponsor ofany exchange program in which the ap-plicant has been a participant.

(11) The applicant shall be notified ofthe decision, and if the application is


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8 CFR Ch. I (1–1–02 Edition)§ 212.8

denied, of the reasons therefor and ofthe right of appeal in accordance withthe provisions of part 103 of this chap-ter. However, no appeal shall lie fromthe denial of an application for lack ofa favorable recommendation from theSecretary of State. When an interestedUnited States Government agency re-quests a waiver of the two-year for-eign-residence requirement and the Di-rector, United States InformationAgency had made a favorable rec-ommendation, the interested agencyshall be notified of the decision on itsrequest and, if the request is denied, ofthe reasons thereof, and of the right ofappeal. If the foreign country of thealien’s nationality or last residence hasfurnished statement in writing that ithas no objection to his/her being grant-ed a waiver of the foreign residence re-quirement and the Director, UnitedStates Information Agency has made afavorable recommendation, the Direc-tor shall be notified of the decisionand, if the foreign residence require-ment is not waived, of the reasonstherefor and of the foregoing right ofappeal. However, this ‘‘no objection’’provision is not applicable to the ex-change visitor admitted to the UnitedStates on or after January 10, 1977 toreceive graduate medical education ortraining, or who acquired such statuson or after that date for such purpose;except that the alien who commenced aprogram before January 10, 1977 andwho was readmitted to the UnitedStates on or after that date to con-tinue participation in the same pro-gram, is eligible for the ‘‘no objection’’waiver.

(Secs. 103, 203, 212 of the Immigration andNationality Act, as amended by secs. 4, 5, 18of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.1103, 1153, 1182)

[29 FR 12584, Sept. 4, 1964, as amended at 66FR 42593, Aug. 14, 2001]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 212.7, see the List of CFRSections Affected, which appears in theFinding Aids section of the printed volumeand on GPO Access.

§ 212.8 Certification requirement ofsection 212(a)(14).

(a) General. The certification require-ment of section 212(a)(14) of the Act ap-plies to aliens seeking admission to the

United States or adjustment of statusunder section 245 of the Act for thepurpose of performing skilled or un-skilled labor, who are preference immi-grants as described in section 203(a) (3)or (6) of the Act, or who are non-preference immigrants as described insection 203(a)(8). The certification re-quirement shall not be applicable to anonpreference applicant for admissionto the United States or to a non-preference applicant for adjustment ofstatus under section 245 who estab-lishes that he will not perform skilledor unskilled labor. A native of theWestern Hemisphere who established apriority date with a consular officerprior to January 1, 1977 and who wasfound to be entitled to an exemptionfrom the labor certification require-ment of section 212(a)(14) of the Actunder the law in effect prior to Janu-ary 1, 1977 as the parent, spouse orchild of a United States citizen or law-ful permanent resident alien shall con-tinue to be exempt from that require-ment for so long as the relationshipupon which the exemption is based con-tinues to exist.

(b) Aliens not required to obtain laborcertifications. The following persons arenot considered to be within the pur-view of section 212(a)(14) of the Act anddo not require a labor certification: (1)A member of the Armed Forces of theUnited States; (2) a spouse or child ac-companying or following to join hisspouse or parent who either has a laborcertification or is a nondependent alienwho does not require such a certifi-cation; (3) a female alien who intendsto marry a citizen or alien lawful per-manent resident of the United States,who establishes satisfactorily that shedoes not intend to seek employment inthe United States and whose fiance hasguaranteed her support; (4) an alienwho establishes on Form I–526 that hehas invested, or is actively in the proc-ess of investing, capital totaling atleast $40,000 in an enterprise in theUnited States of which he will be aprincipal manager and that the enter-prise will employ a person or persons inthe United States of which he will be aprincipal manager and that the enter-prise will employ a person or persons inthe United States who are United


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States citizens or aliens lawfully ad-mitted for permnanent residence, ex-clusive of the alien, his spouse andchildren. A copy of a document sub-mitted in support of Form I–526 may beaccepted though unaccompanied by theoriginal, if the copy bears a certifi-cation by an attorney, typed or rubber-stamped in the language set forth in§ 204.2(j) of this chapter. However, theoriginal document shall be submitted,if submittal is requested by the Serv-ice.

[31 FR 10021, July 23, 1966; 31 FR 10355, Aug.22, 1966, as amended at 34 FR 5326, Mar. 18,1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR44990, Oct. 13, 1982; 48 FR 19157, Apr. 28, 1983]

§ 212.9 Applicability of section212(a)(32) to certain derivativethird and sixth preference and non-preference immigrants.

A derivative beneficiary who is thespouse or child of a qualified third orsixth preference or nonpreference im-migrant and who is also a graduate ofa medical school as defined by section101(a)(41) of the Act is not consideredto be an alien who is coming to theUnited States principally to performservices as a member of the medicalprofession. Therefore, a derivativethird or sixth preference or non-preference immigrant under section203(a)(8) of the Act, who is also a grad-uate of a medical school, is eligible foran immigrant visa or for adjustment ofstatus under section 245 of the Act,whether or not such derivative immi-grant has passed Parts I and II of theNational Board of Medical ExaminersExamination or equivalent examina-tion.

(Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C1103, 1153(a)(8), and 1182(a)(32))

[45 FR 63836, Sept. 26, 1980]

§ 212.10 Section 212(k) waiver.Any applicant for admission who is

in possession of an immigrant visa, andwho is excludable under sections212(a)(14), (20), or (21) of the Act, mayapply to the district director at theport of entry for a waiver under section212(k) of the Act. If the application forwaiver is denied by the district direc-tor, the application may be renewed inexclusion proceedings before an immi-

gration judge as provided in part 236 ofthis chapter.

(Secs. 103, 203, 212 of the Immigration andNationality Act, as amended by secs. 4, 5, 18of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.1103, 1153, 1182)

[47 FR 44236, Oct. 7, 1982]

§ 212.11 Controlled substance convic-tions.

In determining the admissibility ofan alien who has been convicted of aviolation of any law or regulation of aState, the United States, or a foreigncountry relating to a controlled sub-stance, the term controlled substance asused in section 212(a)(23) of the Act,shall mean the same as that referencedin the Controlled Substances Act, 21U.S.C. 801, et seq., and shall include anysubstance contained in Schedules Ithrough V of 21 CFR 1308.1, et seq. Forthe purposes of this section, the termcontrolled substance includes controlledsubstance analogues as defined in 21U.S.C. 802(23) and 813.

[53 FR 9282, Mar. 22, 1988]

§ 212.12 Parole determinations andrevocations respecting Mariel Cu-bans.

(a) Scope. This section applies to anynative of Cuba who last came to theUnited States between April 15, 1980,and October 20, 1980 (hereinafter re-ferred to as Mariel Cuban) and who isbeing detained by the Immigration andNaturalization Service (hereinafter re-ferred to as the Service) pending his orher exclusion hearing, or pending his orher return to Cuba or to another coun-try. It covers Mariel Cubans who havenever been paroled as well as thoseMariel Cubans whose previous parolehas been revoked by the Service. Italso applies to any Mariel Cuban, de-tained under the authority of the Im-migration and Nationality Act in anyfacility, who has not been approved forrelease or who is currently awaitingmovement to a Service or Bureau OfPrisons (BOP) facility. In addition, itcovers the revocation of parole forthose Mariel Cubans who have been re-leased on parole at any time.

(b) Parole authority and decision. Theauthority to grant parole under section212(d)(5) of the Act to a detained Mariel


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8 CFR Ch. I (1–1–02 Edition)§ 212.12

Cuban shall be exercised by the Com-missioner, acting through the Asso-ciate Commissioner for Enforcement,as follows:

(1) Parole decisions. The AssociateCommissioner for Enforcement may, inthe exercise of discretion, grant paroleto a detained Mariel Cuban for emer-gent reasons or for reasons deemedstrictly in the public interest. A deci-sion to retain in custody shall brieflyset forth the reasons for the continueddetention. A decision to release on pa-role may contain such special condi-tions as are considered appropriate. Acopy of any decision to parole or to de-tain, with an attached copy translatedinto Spanish, shall be provided to thedetainee. Parole documentation forMariel Cubans shall be issued by thedistrict director having jurisdictionover the alien, in accordance with theparole determination made by the As-sociate Commissioner for Enforcement.

(2) Additional delegation of authority.All references to the Commissioner andAssociate Commissioner for Enforce-ment in this section shall be deemed toinclude any person or persons (includ-ing a committee) designated in writingby the Commissioner or AssociateCommissioner for Enforcement to exer-cise powers under this section.

(c) Review Plan Director. The Asso-ciate Commissioner for Enforcementshall appoint a Director of the CubanReview Plan. The Director shall haveauthority to establish and maintainappropriate files respecting eachMariel Cuban to be reviewed for pos-sible parole, to determine the order inwhich the cases shall be reviewed, andto coordinate activities associated withthese reviews.

(d) Recommendations to the AssociateCommissioner for Enforcement. Parolerecommendations for detained MarielCubans shall be developed in accord-ance with the following procedures.

(1) Review Panels. The Director shalldesignate a panel or panels to make pa-role recommendations to the AssociateCommissioner for Enforcement. ACuban Review Panel shall, except asotherwise provided, consist of two per-sons. Members of a Review Panel shallbe selected from the professional staffof the Service. All recommendations bya two-member Panel shall be unani-

mous. If the vote of a two-memberPanel is split, it shall adjourn its delib-erations concerning that particular de-tainee until a third Panel member isadded. A recommendation by a three-member Panel shall be by majorityvote. The third member of any Panelshall be the Director of the Cuban Re-view Plan or his designee.

(2) Criteria for Review. Before makingany recommendation that a detaineebe granted parole, a majority of theCuban Review Panel members, or theDirector in case of a record review,must conclude that:

(i) The detainee is presently a non-violent person;

(ii) The detainee is likely to remainnonviolent;

(iii) The detainee is not likely topose a threat to the community fol-lowing his release; and

(iv) The detainee is not likely to vio-late the conditions of his parole.

(3) Factors for consideration. The fol-lowing factors should be weighed inconsidering whether to recommend fur-ther detention or release on parole of adetainee:

(i) The nature and number of discipli-nary infractions or incident reports re-ceived while in custody;

(ii) The detainee’s past history ofcriminal behavior;

(iii) Any psychiatric and psycho-logical reports pertaining to the de-tainee’s mental health;

(iv) Institutional progress relating toparticipation in work, educational andvocational programs;

(v) His ties to the United States, suchas the number of close relatives resid-ing lawfully here;

(vi) The likelihood that he may ab-scond, such as from any sponsorshipprogram; and

(vii) Any other information which isprobative of whether the detainee islikely to adjust to life in a community,is likely to engage in future acts of vio-lence, is likely to engage in futurecriminal activity, or is likely to vio-late the conditions of his parole.

(4) Procedure for review. The followingprocedures will govern the review proc-ess:

(i) Record review. Initially, the Direc-tor or a Panel shall review the detain-ee’s file. Upon completion of this


255


record review, the Director or thePanel shall issue a written rec-ommendation that the detainee be re-leased on parole or scheduled for a per-sonal interview.

(ii) Personal interview. If a rec-ommendation to grant parole afteronly a record review is not accepted orif the detainee is not recommended forrelease, a Panel shall personally inter-view the detainee. The scheduling ofsuch interviews shall be at the discre-tion of the Director. The detainee maybe accompanied during the interviewby a person of his choice, who is able toattend at the time of the scheduledinterview, to assist in answering anyquestions. The detainee may submit tothe Panel any information, either oral-ly or in writing, which he believes pre-sents a basis for release on parole.

(iii) Panel recommendation. Followingcompletion of the interview and its de-liberations, the Panel shall issue awritten recommendation that the de-tainee be released on parole or remainin custody pending deportation orpending further observation and subse-quent review. This written rec-ommendation shall include a briefstatement of the factors which thePanel deems material to its rec-ommendation. The recommendationand appropriate file material shall beforwarded to the Associate Commis-sioner for Enforcement, to be consid-ered in the exercise of discretion pursu-ant to § 212.12(b).

(e) Withdrawal of parole approval. TheAssociate Commissioner for Enforce-ment may, in his or her discretion,withdraw approval for parole of any de-tainee prior to release when, in his orher opinion, the conduct of the de-tainee, or any other circumstance, in-dicates that parole would no longer beappropriate.

(f) Sponsorship. No detainee may bereleased on parole until suitable spon-sorship or placement has been foundfor the detainee. The paroled detaineemust abide by the parole conditionsspecified by the Service in relation tohis sponsorship or placement. The fol-lowing sponsorships and placementsare suitable:

(1) Placement by the Public HealthService in an approved halfway houseor mental health project;

(2) Placement by the Community Re-lations Service in an approved halfwayhouse or community project; and

(3) Placement with a close relativesuch as a parent, spouse, child, or sib-ling who is a lawful permanent residentor a citizen of the United States.

(g) Timing of reviews. The timing ofreview shall be in accordance with thefollowing guidelines.

(1) Parole revocation cases. The Direc-tor shall schedule the review process inthe case of a new or returning detaineewhose previous immigration parole hasbeen revoked. The review process willcommence with a scheduling of a filereview, which will ordinarily be ex-pected to occur within approximatelythree months after parole is revoked.In the case of a Mariel Cuban who is inthe custody of the Service, the CubanReview Plan Director may, in his orher discretion, suspend or postpone theparole review process if such detainee’sprompt deportation is practicable andproper.

(2) Continued detention cases. A subse-quent review shall be commenced forany detainee within one year of a re-fusal to grant parole under § 212.12(b),unless a shorter interval is specified bythe Director.

(3) Discretionary reviews. The CubanReview Plan Director, in his discretion,may schedule a review of a detainee atany time when the Director deems sucha review to be warranted.

(h) Revocation of parole. The Asso-ciate Commissioner for Enforcementshall have authority, in the exercise ofdiscretion, to revoke parole in respectto Mariel Cubans. A district directormay also revoke parole when, in thedistrict director’s opinion, revocationis in the public interest and cir-cumstances do not reasonably permitreferral of the case to the AssociateCommissioner. Parole may be revokedin the exercise of discretion when, inthe opinion of the revoking official:

(1) The purposes of parole have beenserved;

(2) The Mariel Cuban violates anycondition of parole;

(3) It is appropriate to enforce anorder of exclusion or to commence pro-ceedings against a Mariel Cuban; or


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8 CFR Ch. I (1–1–02 Edition)§ 212.13

(4) The period of parole has expiredwithout being renewed.

[52 FR 48802, Dec. 28, 1987, as amended at 59FR 13870, Mar. 24, 1994; 65 FR 80294, Dec. 21,2000]

§ 212.13 [Reserved]

§ 212.14 Parole determinations foralien witnesses and informants forwhom a law enforcement authority(‘‘LEA’’) will request S classifica-tion.

(a) Parole authority. Parole authoriza-tion under section 212(d)(5) of the Actfor aliens whom LEAs seek to bring tothe United States as witnesses or in-formants in criminal/counter terrorismmatters and to apply for S classifica-tion shall be exercised as follows:

(1) Grounds of eligibility. The Commis-sioner may, in the exercise of discre-tion, grant parole to an alien (and thealien’s family members) needed for lawenforcement purposes provided that astate or federal LEA:

(i) Establishes its intention to file,within 30 days after the alien’s arrivalin the United States, a completedForm I–854, Inter-Agency Alien Witnessand Informant Record, with the Assist-ant Attorney General, Criminal Divi-sion, Department of Justice, in accord-ance with the instructions on or at-tached to the form, which will includethe names of qualified family membersfor whom parole is sought;

(ii) Specifies the particular oper-ational reasons and basis for the re-quest, and agrees to assume responsi-bility for the alien during the period ofthe alien’s temporary stay in theUnited States, including maintainingcontrol and supervision of the alienand the alien’s whereabouts and activi-ties, and further specifies any otherterms and conditions specified by theService during the period for which theparole is authorized;

(iii) Agrees to advise the Service ofthe alien’s failure to report quarterlyany criminal conduct by the alien, orany other activity or behavior on thealien’s part that may constitute aground of excludability or deport-ability;

(iv) Assumes responsibility for ensur-ing the alien’s departure on the date oftermination of the authorized parole(unless the alien has been admitted in

S nonimmigrant classification pursu-ant to the terms of paragraph (a)(2) ofthis section), provides any and all as-sistance needed by the Service, if nec-essary, to ensure departure, andverifies departure in a manner accept-able to the Service;

(v) Provide LEA seat-of-governmentcertification that parole of the alien isessential to an investigation or pros-ecution, is in the national interest, andis requested pursuant to the terms andauthority of section 212(d)(5) of theAct;

(vi) Agrees that no promises may be,have been, or will be made by the LEAto the alien that the alien will or may:

(A) Remain in the United States inparole status or any other non-immigrant classification;

(B) Adjust status to that of lawfulpermanent resident; or

(C) Otherwise attempt to remain be-yond the authorized parole. The alien(and any family member of the alienwho is 18 years of age or older) shallsign a statement acknowledging anawareness that parole only authorizesa temporary stay in the United Statesand does not convey the benefits of Snonimmigrant classification, any othernonimmigrant classification, or anyentitlement to further benefits underthe Act; and

(vii) Provides, in the case of a requestfor the release of an alien from Servicecustody, certification that the alien iseligible for parole pursuant to § 235.3 ofthis chapter.

(2) Authorization. (i) Upon approval ofthe request for parole, the Commis-sioner shall notify the Assistant Attor-ney General, Criminal Division, of theapproval.

(ii) Upon notification of approval of arequest for parole, the LEA will advisethe Commissioner of the date, time,and place of the arrival of the alien.The Commissioner will coordinate thearrival of the alien in parole statuswith the port director prior to the timeof arrival.

(iii) Parole will be authorized for aperiod of thirty (30) days to commenceupon the alien’s arrival in the UnitedStates in order for the LEA to submit


257


a completed Form I–854 to the Assist-ant Attorney General, Criminal Divi-sion. Upon the submission to the As-sistant Attorney General of the FormI–854 requesting S classification, theperiod of parole will be automaticallyextended while the request is being re-viewed. The Assistant Attorney Gen-eral, Criminal Division, will notify theCommissioner of the submission of aForm I–854.

(b) Termination of parole—(1) General.The Commissioner may terminate pa-role for any alien (including a memberof the alien’s family) in parole statusunder this section where termination isin the public interest. A district direc-tor may also terminate parole when, inthe district director’s opinion, termi-nation is in the public interest and cir-cumstances do not reasonably permitreferral of the case to the Commis-sioner. In such a case, the Commis-sioner shall be notified immediately. Inthe event the Commissioner, or in theappropriate case, a district director,decides to terminate the parole of aalien witness or informant authorizedunder the terms of this paragraph, theAssistant Attorney General, CriminalDivision, and the relevant LEA shall benotified in writing to that effect. TheAssistant Attorney General, CriminalDivision, shall concur in or object tothat decision. Unless the Assistant At-torney General, Criminal Division, ob-jects within 7 days, he or she shall bedeemed to have concurred in the deci-sion. In the event of an objection bythe Assistant Attorney General, Crimi-nal Division, the matter will be expedi-tiously referred to the Deputy Attor-ney General for a final resolution. Inno circumstances shall the alien or therelevant LEA have a right of appealfrom any decision to terminate parole.

(2) Termination of parole and admissionin S classification. When an LEA hasfiled a request for an alien in author-ized parole status to be admitted in Snonimmigrant classification and thatrequest has been approved by the Com-missioner pursuant to the proceduresoutlines in 8 CFR 214.2(t), the Commis-sioner may, in the exercise of discre-tion:

(i) Terminate the alien’s parole sta-tus;

(ii) Determine eligibility for waivers;and

(iii) Admit the alien in S non-immigrant classification pursuant tothe terms and conditions of section101(a)(15(S) of the Act and 8 CFR214.2(t).

(c) Departure. If the alien’s parole hasbeen terminated and the alien has beenordered excluded from the UnitedStates, the LEA shall ensure departurefrom the United States and so informthe district director in whose jurisdic-tion the alien has last resided. The dis-trict director, if necessary, shall over-see the alien’s departure from theUnited States and, in any event, shallnotify the Commissioner of the alien’sdeparture. The Commissioner shall benotified in writing of the failure of anyalien authorized parole under thisparagraph to depart in accordance withan order of exclusion and deportationentered after parole authorized underthis paragraph has been terminated.

(d) Failure to comply with procedures.Any failure to adhere to the parole pro-cedures contained in this section shallimmediately be brought to the atten-tion of the Commissioner, who will no-tify the Attorney General.

[60 FR 44265, Aug. 25, 1995]

§ 212.15 Certificates for foreign healthcare workers.

(a) Inadmissible aliens. With the ex-ception of the aliens described in para-graph (b) of this section, any aliencoming to the United States for theprimary purpose of performing labor ina health care occupation listed in para-graph (c) of this section is inadmissibleto the United States unless the alienpresents a certificate as described inparagraph (f) of this section.

(b) Inapplicability of the ground of in-admissibility. The following aliens arenot subject to this ground of inadmis-sibility:

(1) Aliens seeking admission to theUnited States to perform services in anon-clinical health care occupation. Anon-clinical health-care occupation isone where the alien is not required toperform direct or indirect patient care.Occupations which are considered to be


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8 CFR Ch. I (1–1–02 Edition)§ 212.15

non-clinical include, but are not lim-ited to, medical teachers, medical re-searchers, managers of health care fa-cilities, and medical consultants to theinsurance industry;

(2) The spouse and dependent chil-dren of any immigrant alien who isseeking to immigrate in order to ac-company or follow to join the principalalien; and

(3) Any alien applying for adjustmentof status to that of a permanent resi-dent under any provision of law otherthan an alien who is seeking to immi-grate on the basis of an employment-based immigrant visa petition whichwas filed for the purpose of obtainingthe alien’s services in a health care oc-cupation described in paragraph (c) ofthis section.

(c) Occupations affected by this provi-sion. With the exception of the aliensdescribed in paragraph (b) of this sec-tion, any alien seeking admission tothe United States as an immigrant orany alien applying for adjustment ofstatus to a permanent resident to per-form labor in one of the followinghealth care occupations, regardless ofwhere he or she received his or her edu-cation or training, is subject to thisprovision:

(1) Licensed practical nurses, li-censed vocational nurses, and reg-istered nurses.

(2) Occupational therapists.(3) Physical therapists.(4) Speech-Language Pathologists

and Audiologists.(5) Medical Technologists (Clinical

Laboratory Scientists).(6) Physician Assistants.(7) Medical Technicians (Clinical

Laboratory Technicians).(d) Presentation of the certificate. An

alien described in paragraph (a) of thissection who is applying for admissionas an immigrant seeking to performlabor in a health care occupation as de-scribed in this section must present acertificate to a consular officer at thetime of visa issuance and to the Serv-ice at the time of admission or adjust-ment of status. The certificate must bevalid at the time of visa issuance andadmission at a port-of-entry, or, if ap-plicable, at the time of adjustment ofstatus.

(e) Organizations approved by the Serv-ice to issue certificates for health careworkers. (1) The Commission on Grad-uates of Foreign Nursing Schools mayissue certificates pursuant to 8 U.S.C.1182(a)(5)(C), and section 212(a)(5)(C) ofthe Act for the occupations of nurse (li-censed practical nurse, licensed voca-tional nurse, and registered nurse),physical therapist, occupational thera-pist, speech-language pathologist andaudiologist, medical technologist (clin-ical laboratory scientist), physician as-sistant, and medical technician (clin-ical laboratory technician).

(2) The National Board for Certifi-cation in Occupational Therapy is au-thorized by the Service to issue certifi-cates under section 343 for the occupa-tion of occupational therapist.

(3) The Foreign Credentialing Com-mission on Physical Therapy is author-ized by the Service to issue certificatesunder section 343 for the occupation ofphysical therapist.

(f) Contents of the certificate. A certifi-cate must contain the following infor-mation:

(1) The name and address of the certi-fying organization;

(2) A point of contact where the orga-nization may be contacted in order toverify the validity of the certificate;

(3) The date of the certificate wasissued;

(4) The occupation for which the cer-tificate was issued;

(5) The alien’s name, and date andplace of birth;

(6) Verification that the alien’s edu-cation, training, license, and experi-ence are comparable with that requiredfor an American health care worker ofthe same type;

(7) Verification that the alien’s edu-cation, training, license, and experi-ence are authentic and, in the case of alicense, unencumbered;

(8) Verification that the alien’s edu-cation, training, license, and experi-ence meet all applicable statutory andregulatory requirements for admissioninto the United States as an immigrantunder section 203(b) of the Act. Thisverification is not binding on the Serv-ice; and

(9) Verification either that the alienhas passed a test predicting success on


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the occupation’s licensing or certifi-cation examination, provided such atest is recognized by a majority ofStates licensing the occupation forwhich the certificate is issued, or thatthe alien has passed the occupation’slicensing or certification examination.

(g) English testing requirement. (1)With the exception of those aliens de-scribed in paragraph (g)(2) of this sec-tion, every alien must meet certainEnglish language requirements in orderto obtain a certificate. The Secretaryof Health and Human Services has de-termined that an alien must have apassing score on one of the two testslisted in paragraph (g)(3) of this sectionbefore he or she can be granted a cer-tificate.

(2) Aliens exempt from the English lan-guage requirement. Aliens who havegraduated from a college, university,or professional training school locatedin Australia, Canada (except Quebec),Ireland, New Zealand, the United King-dom, and the United States are exemptfrom the English language require-ment.

(3) Approved testing services. (i) Michi-gan English Language Assessment Bat-tery (MELAB). Effective June 30, 2000,the MELAB Oral Interview SpeakingTest is no longer being given overseasand is only being administered in theUnited States and Canada. Applicantsmay take MELAB Parts 1, 2, and 3, plusthe Test of Spoken English offered bythe Educational Testing Service.

(ii) Test of English as a Foreign Lan-guage, Educational Testing Service(ETS).

(4) Passing scores for various occupa-tions—(i) Occupational and physicaltherapists. An alien seeking to performlabor in the United States as an occu-pational therapist or physical therapistmust obtain the following scores on theEnglish tests administered by ETS:Test Of English as a Foreign Language(TOEFL), Paper-Based 560, Computer-Based 220; Test of Written English(TWE): 4.5; Test of Spoken English(TSE): 50. Certifying organizationsshall not accept the results of theMELAB for the occupation of occupa-tional therapist or physical therapist.Aliens seeking to obtain a certificateto work as an occupational or physicaltherapist must take the test offered by

the ETS. The MELAB scores are notacceptable for these occupations.

(ii) Registered nurses. An alien comingto the United States to perform laboras a registered nurse must obtain thefollowing scores to obtain a certificate:ETS: TOEFL: Paper-Based 540, Com-puter-Based 207; TWE: 4.0; TSE: 50;MELAB: Final Score 79; Oral Inter-view: 3+.

(iii) Licensed practical nurses and li-censed vocational nurses. An alien com-ing to the United States to performlabor as a licensed practical nurse orlicensed vocational nurse must havethe following scores to be issued a cer-tificate: ETS: TOEFL: Paper-Based 530,Computer-Based 197; TWE: 4.0; TSE: 50;MELAB: Final Score 77; Oral Inter-view: 3+.

(iv) Speech-language pathologists andAudiologists, medical technologists (clin-ical laboratory scientists), and physicianassistants. An alien coming to theUnited States to perform labor as aspeech-language pathologist and audi-ologist, a medical technologist (clin-ical laboratory scientist), or a physi-cian assistant must have the followingscores to be issued a certificate: ETS:TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE: 50; MELAB:Final Score 79; Oral Interview: 3+.

(v) Medical technicians (clinical labora-tory technicians). An alien coming tothe United States to perform labor as amedical technician (clinical laboratorytechnician) must have the followingscores to be issued a certificate: ETS:TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE: 50; MELAB:Final Score 77; Oral Interview: 3+.

[63 FR 55011, Oct. 14, 1998, as amended at 64FR 23177, Apr. 30, 1999; 66 FR 3444, Jan. 16,2001]

PART 213—ADMISSION OF ALIENSON GIVING BOND OR CASH DE-POSIT

AUTHORITY: 8 U.S.C. 1103; 8 CFR part 2.

§ 213.1 Admission under bond or cashdeposit.

The district director having jurisdic-tion over the intended place of resi-dence of an alien may accept a publiccharge bond prior to the issuance of an


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