[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR212.4]

[Page 240-243]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents
 
Sec. 212.4  Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3).

    (a) Applications under section 212(d)(3)(A)--(1) General. District 
directors and officers in charge outside the United States in the 
districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are 
authorized to act upon recommendations made by consular officers for the 
exercise of discretion under section 212(d)(3)(A) of the Act. The 
District Director, Washington, DC, has jurisdiction in such cases 
recommended to the Service at the seat-of-government level by the 
Department of State. When a consular officer or other State Department 
official recommends that the benefits of section 212(d)(3)(A) of the Act 
be accorded an alien, neither an application nor fee shall be required. 
The recommendation shall specify:
    (i) The reasons for inadmissibility and each section of law under 
which the 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 
section 212(d)(3) of the Act.

If the alien desires to make multiple entries and the consular officer 
or other State Department official believes that the circumstances 
justify the issuance of a visa valid for multiple entries rather than 
for a specified number of entries, and recommends that the alien be 
accorded an authorization valid for multiple entries, the information 
required by items (ii) and (iii) shall be furnished only with respect to 
the initial entry. Item (ii) does not apply to a bona fide crewman. The 
consular officer or other State Department official shall be notified of 
the decision on his recommendation. No appeal by the alien shall lie 
from an adverse decision made by a Service officer on the recommendation 
of a consular officer or other State Department official.
    (2) Authority of consular officers to approve section 212(d)(3)(A) 
recommendations pertaining to aliens inadmissible under section 
212(a)(28)(C). In certain categories of visa cases defined by the 
Secretary of State, United States consular officers assigned to visa-
issuing posts abroad may, on behalf of the Attorney General pursuant to 
section 212(d)(3)(A) of the Act, approve a recommendation by another 
consular officer that an alien be admitted temporarily despite visa 
ineligibility solely because the alien is of the class of aliens defined 
at section 212(a)(28)(C) of the Act, as a result of presumed or actual 
membership in, or affiliation with, an organization described in that 
section. Authorizations for temporary admission granted by consular 
officers shall be subject to the terms specified in Sec. 212.4(c) of 
this chapter. Any recommendation which is not clearly approvable shall, 
and any recommendation may, be presented to the appropriate official of 
the Immigration and Naturalization Service for a determination.
    (b) Applications under section 212(d)(3)(B). An application for the 
exercise of discretion under section 212(d)(3)(B) of the Act shall be 
submitted on Form I-192 to the district director in charge of the 
applicant's intended port of entry prior to the applicant's arrival in 
the United States. (For Department of State procedure when a visa is 
required, see 22 CFR 41.95 and paragraph (a) of this section.) If the 
application is made because the applicant may be inadmissible due to 
present or past membership in or affiliation with any Communist or other 
totalitarian party or organization, there shall be attached to the 
application a written statement of the history of the applicant's 
membership or affiliation, including the period of such membership or 
affiliation, whether the applicant held any office in the organization, 
and whether his membership or affiliation was voluntary or involuntary. 
If the applicant alleges that his

[[Page 241]]

membership or affiliation was involuntary, the statement shall include 
the basis for that allegation. When the application is made because the 
applicant may be inadmissible due to disease, mental or physical defect, 
or disability of any kind, the application shall describe the disease, 
defect, or disability. If the purpose of seeking admission to the United 
States is for treatment, there shall be attached to the application 
statements in writing to establish that satisfactory treatment cannot be 
obtained outside the United States; that arrangements have been 
completed for treatment, and where and from whom treatment will be 
received; what financial arrangements for payment of expenses incurred 
in connection with the treatment have been made, and that a bond will be 
available if required. When the application is made because the 
applicant may be inadmissible due to the conviction of one or more 
crimes, the designation of each crime, the date and place of its 
commission and of the conviction thereof, and the sentence or other 
judgment of the court shall be stated in the application; in such a case 
the application shall be supplemented by the official record of each 
conviction, and any other documents relating to commutation of sentence, 
parole, probation, or pardon. If the application is made at the time of 
the applicant's arrival to the district director at a port of entry, the 
applicant shall establish that he was not aware of the ground of 
inadmissibility and that it could not have been ascertained by the 
exercise of reasonable diligence, and he shall be in possession of a 
passport and visa, if required, or have been granted a waiver thereof. 
The applicant shall be notified of the decision and if the application 
is denied of the reasons therefor and of his right to appeal to the 
Board within 15 days after the mailing of the notification of decision 
in accordance with the Provisions of part 3 of this chapter. If denied, 
the denial shall be without prejudice to renewal of the application in 
the course of proceedings before a special inquiry officer under 
sections 235 and 236 of the Act and this chapter. When an appeal may not 
be taken from a decision of a special inquiry officer excluding an alien 
but the alien has applied for the exercise of discretion under section 
212(d)(3)(B) of the Act, the alien may appeal to the Board from a denial 
of such application in accordance with the provisions of Sec. 236.5(b) 
of this chapter.
    (c) Terms of authorization. Each authorization under section 
212(d)(3) (A) or (B) of the Act shall specify:
    (1) Each section of law under which the alien is inadmissible;
    (2) The intended date of each arrival;
    (3) The length of each stay authorized 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 
ports of entry in the United States is valid; and
    (7) The justification for exercising the authority contained in 
section 212(d)(3) of the Act. If the consular officer has recommended 
under section 212(d)(3)(A), or an applicant under section 212(d)(3)(B) 
seeks, the issuance of an authorization valid for multiple entries 
rather than for a specified number of entries, and it is determined that 
the circumstances justify the issuance of the authorization valid for 
mutiple entries, the information required by items (2) and (3) shall be 
specified only with respect to the initial entry. Item (2) does not 
apply to a bona fide crewman. Authorizations granted to crewmen may be 
valid for a maximum period of 2 years for application for admission at 
U.S. ports of entry and may be valid for multiple entries. An 
authorization issued in conjunction with an application for a 
nonresident alien border crossing card shall be valid for a period not 
to exceed the validity of such card for applications for admission at 
U.S. ports of entry and shall be valid for multiple entries. A multiple 
entry authorization for a person other than a crewman or applicant for a 
border crossing card may be made valid for a maximum period of 1 year 
for applications for admission at U.S. ports of entry, except that a 
period in excess of 1 year may be permitted on the recommendation of the 
Department of State. A single entry authorization to apply for admission 
at a U.S. port of entry shall not be valid for more than

[[Page 242]]

6 months from the date the authorization is issued. All admissions 
pursuant to section 212(d)(3) of the Act shall be subject to the terms 
and conditions set forth in the authorization. The period for which the 
alien's admission is authorized pursuant to item (3) shall not exceed 
the period justified, subject to the limitations specified in part 214 
of this chapter for each class of nonimmigrants. Each authorization 
shall specify that it is subject to revocation at any time. Unless the 
alien applies for admission during the period of validity of the 
authorization, a new authorization is required. An authorization may not 
be revalidated.
    (d) Admission of groups inadmissible under section 212(a)(28) for 
attendance at international conferences. When the Secretary of State 
recommends that a group of nonimmigrant aliens and their accompanying 
family members be admitted to attend international conferences 
notwithstanding their inadmissibility under section 212(a)(28) of the 
Act, the Deputy Commissioner, may enter an order pursuant to the 
authority contained in section 212(d)(3)(A) of the Act specifying the 
terms and conditions of their admission and stay.
    (e) Inadmissibility under section 212(a)(1). Pursuant to the 
authority contained in section 212(d)(3) of the Act, the temporary 
admission of a nonimmigrant visitor is authorized notwithstanding 
inadmissibility under section 212(a)(1) of the Act, if such alien is 
accompanied by a member of his/her family, or a guardian who will be 
responsible for him/her during the period of admission authorized.
    (f) Action upon alien's arrival. Upon admitting an alien who has 
been granted the benefits of section 212(d)(3)(A) of the Act, the 
immigration officer shall be guided by the conditions and limitations 
imposed in the authorization and noted by the consular officer in the 
alien's passport. When admitting any alien who has been granted the 
benefits of section 212(d)(3)(B) of the Act, the Immigration officer 
shall note on the arrival-departure record, Form I-94, or crewman's 
landing permit, Form I-95, issued to the alien, the conditions and 
limitations imposed in the authorization.
    (g) Authorizations issued to crewmen without limitation as to period 
of validity. When a crewman who has a valid section 212(d)(3) 
authorization without any time limitation comes to the attention of the 
Service, his travel document shall be endorsed to show that the validity 
of his section 212(d)(3) authorization expires as of a date six months 
thereafter, and any previously-issued Form I-184 shall be lifted and 
Form I-95 shall be issued in its place and similarly endorsed.
    (h) Revocation. The Deputy Commissioner or the district director may 
at any time revoke a waiver previously authorized under section 
212(d)(3) of the Act and shall notify the nonimmigrant 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 or state law 
enforcement authority (``LEA''), which shall include a state or federal 
court or United States Attorney's Office, pursuant to the filing of Form 
I-854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant 
classification described in section 101(a)(15)(S) of the Act, the 
Commissioner shall determine whether a ground of exclusion exists with 
respect to the alien for whom classification is sought and, if so, 
whether it is in the national interest to exercise the discretion to 
waive the ground of excludability, other than section 212(a)(3)(E) of 
the Act. The Commissioner may at any time revoke a waiver previously 
authorized under section 212(d)(1) of the Act. In the event the 
Commissioner decides to revoke a previously authorized waiver for an S 
nonimmigrant, the Assistant Attorney General, Criminal Division, and the 
relevant LEA shall be notified in writing to that effect. The Assistant 
Attorney General, Criminal Division, shall concur in or object to the 
decision. Unless the Assistant Attorney General, Criminal Division, 
objects within 7 days, he or she shall be deemed to have concurred in 
the decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred to 
the Deputy Attorney General for a final resolution. In no circumstances 
shall the alien or the relevant LEA

[[Page 243]]

have a right of appeal from any decision to revoke.
    (2) Grounds of removal. Nothing shall prohibit the Service from 
removing from the United States an alien classified pursuant to section 
101(a)(15)(S) of the Act for conduct committed after the alien has been 
admitted to the United States as an S nonimmigrant, or after the alien's 
change to S classification, or for conduct or a condition undisclosed to 
the Attorney General prior to the alien's admission in, or change to, S 
classification, unless such conduct or condition is waived prior to 
admission and classification. In the event the Commissioner decides to 
remove an S nonimmigrant from the United States, the Assistant Attorney 
General, Criminal Division, and the relevant LEA shall be notified in 
writing to that effect. The Assistant Attorney General, Criminal 
Division, shall concur in or object to that decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, he 
or she shall be deemed to have concurred in the decision. In the event 
of an objection by the Assistant Attorney General, Criminal Division, 
the matter will be expeditiously referred to the Deputy Attorney General 
for a final resolution. In no circumstances shall the alien or the 
relevant LEA have a right of appeal from any decision to remove.

[29 FR 15252, Nov. 13, 1964, as amended at 30 FR 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 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 
1995; 60 FR 52248, Oct. 5, 1995]