[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR212.1]



[Page 185-189]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 212_DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION 

OF CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents

 

Sec. 212.1  Documentary requirements for nonimmigrants.









Sec.

212.1 Documentary requirements for nonimmigrants.

212.2 Consent to reapply for admission after deportation, removal or 

          departure at Government expense.

212.3 Application for the exercise of discretion under section 212(c).

212.4 Applications for the exercise of discretion under section 

          212(d)(1) and 212(d)(3).

212.5 Parole of aliens into the United States.

212.6 Border crossing identification cards.

212.7 Waiver of certain grounds of inadmissibility.

212.8 Certification requirement of section 212(a)(14).

212.9 Applicability of section 212(a)(32) to certain derivative third 

          and sixth preference and nonpreference immigrants.

212.10 Section 212(k) waiver.

212.11 Controlled substance convictions.

212.12 Parole determinations and revocations respecting Mariel Cubans.

212.13 [Reserved]

212.14 Parole determinations for alien witnesses and informants for whom 

          a law enforcement authority (``LEA'') will request S 

          classification.

212.15 Certificates for foreign health care workers.

212.16 Applications for exercise of discretion relating to T 

          nonimmigrant status.



    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 

1187, 1223, 1225, 1226, 1227.



    Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.





    A valid unexpired visa and an unexpired passport, valid for the 

period set forth in section 212(a)(26) of the Act, shall be presented by 

each arriving nonimmigrant alien except that the passport validity 

period for an applicant for admission who is a member of a class 

described in section 102 of the Act is not required to extend beyond the 

date of his application for admission if so admitted, and except as 

otherwise provided in the Act, this chapter, and for the following 

classes:

    (a) Citizens of Canada or Bermuda, Bahamian nationals or British 

subjects resident in certain islands--(1) Canadian citizens. A passport 

is not required except after a visit outside of the Western Hemisphere. 

A visa is not required.

    (2) Citizens of the British Overseas Territory of Bermuda. A 

passport is not required except after a visit outside of the Western 

Hemisphere. A visa is not required.

    (3) Bahamian nationals or British subjects resident in the Bahamas. 

A passport is required. A visa required of such an alien unless, prior 

to or at the time of embarkation for the United States on a vessel or 

aircraft, the alien satisfied the examining U.S. immigration officer at 

the Bahamas, that he or she is clearly and beyond a doubt entitled to 

admission, under section 212(a) of the Immigration and Nationality Act, 

in all other respects.

    (4) British subjects resident in the Cayman Islands or in the Turks 

and Caicos Islands. A passport is required. A visa is required of such 

an alien unless he or she arrives directly from the Cayman Islands or 

the Turks and Caicos Islands and presents a current certificate from the 

Clerk of Court of the Cayman Islands or the Turks and Caicos Islands 

indicating no criminal record.

    (b) Certain Caribbean residents--(1) British, French, and 

Netherlands nationals, and nationals of certain adjacent islands of the 

Caribbean which are independent countries. A visa is not required of a 

British, French, or Netherlands national, or of a national of Barbados, 

Grenada, Jamaica, or Trinidad and Tobago, who has his or her residence 

in British, French, or Netherlands territory located in the adjacent 

islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or 

Trinidad and Tobago, who:

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

    (ii) Is the beneficiary of a valid, unexpired indefinite 

certification granted by the Department of Labor for employment in the 

Virgin Islands of the United States and is proceeding to the Virgin 

Islands of the United States for such purpose, or



[[Page 186]]



    (iii) Is the spouse or child of an alien described in paragraph 

(b)(1)(i) or (b)(1)(ii) of this section, and is accompanying or 

following to join him or her.

    (2) Nationals of the British Virgin Islands. A visa is not required 

of a national of the British Virgin Islands who has his or her residence 

in the British Virgin Islands, if:

    (i) The alien is seeking admission solely to visit the Virgin 

Islands of the United States; or

    (ii) At the time of embarking on an aircraft at St. Thomas, U.S. 

Virgin Islands, the alien meets each of the following requirements:

    (A) The alien is traveling to any other part of the United States by 

aircraft as a nonimmigrant visitor for business or pleasure (as 

described in section 101(a)(15)(B) of the Act);

    (B) The alien satisfies the examining U.S. Immigration officer at 

the port-of-entry that he or she is clearly and beyond a doubt entitled 

to admission in all other respects; and

    (C) The alien presents a current Certificate of Good Conduct issued 

by the Royal Virgin Islands Police Department indicating that he or she 

has no criminal record.

    (c) Mexican nationals. (1) A visa and a passport are not required of 

a Mexican national who:

    (i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border 

Crossing Card, containing a machine-readable biometric identifier, 

issued by the DOS and is applying for admission as a temporary visitor 

for business or pleasure from contiguous territory.

    (ii) Is a Mexican national entering solely for the purpose of 

applying for a Mexican passport or other official Mexican document at a 

Mexican consular office on the United States side of the border.

    (2) A visa shall not be required of a Mexican national who:

    (i) Is in possession of a Form DSP-150, with a biometric identifier, 

issued by the DOS, and a passport, and is applying for admission as a 

temporary visitor for business or pleasure from other than contiguous 

territory;

    (ii) Is a crew member employed on an aircraft belonging to a Mexican 

company owned carrier authorized to engage in commercial transportation 

into the United States; or

    (iii) Bears a Mexican diplomatic or official passport and who is a 

military or civilian official of the Federal Government of Mexico 

entering the United States for 6 months or less for a purpose other than 

on assignment as a permanent employee to an office of the Mexican 

Federal Government in the United States, and the official's spouse or 

any of the official's dependent family members under 19 years of age, 

bearing diplomatic or official passports, who are in the actual company 

of such official at the time of admission into the United States. This 

provision does not apply to the spouse or any of the official's family 

members classifiable under section 101(a)(15)(F) or (M) of the Act.

    (3) A Mexican national who presents a BCC at a POE must present the 

DOS-issued DSP-150 containing a machine-readable biometric identifier. 

The alien will not be permitted to cross the border into the United 

States unless the biometric identifier contained on the card matches the 

appropriate biometric characteristic of the alien.

    (4) Mexican nationals presenting a combination B-1/B-2 nonimmigrant 

visa and border crossing card (or similar stamp in a passport), issued 

by DOS prior to April 1, 1998, that does not contain a machine-readable 

biometric identifier, may be admitted on the basis of the nonimmigrant 

visa only, provided it has not expired and the alien remains admissible. 

A passport is also required.

    (5) Aliens entering pursuant to International Boundary and Water 

Commission Treaty. A visa and a passport are not required of an alien 

employed either directly or indirectly on the construction, operation, 

or maintenance of works in the United States undertaken in accordance 

with the treaty concluded on February 3, 1944, between the United States 

and Mexico regarding the functions of the International Boundary and 

Water Commission, and entering the United States temporarily in 

connection with such employment.

    (d) Citizens of the Freely Associated States, formerly Trust 

Territory of the Pacific Islands. Citizens of the Republic of the 

Marshall Islands and the Federated



[[Page 187]]



States of Micronesia may enter into, lawfully engage in employment, and 

establish residence in the United States and its territories and 

possessions without regard to paragraphs (14), (20) and (26) of section 

212(a) of the Act pursuant to the terms of Pub. L. 99-239. Pending 

issuance by the aforementioned governments of travel documents to 

eligible citizens, travel documents previously issued by the Trust 

Territory of the Pacific Islands will continue to be accepted for 

purposes of identification and to establish eligibility for admission 

into the United States, its territories and possessions.

    (e) Aliens entering Guam pursuant to section 14 of Pub. L. 99-396, 

``Omnibus Territories Act.'' (1) A visa is not required of an alien who 

is a citizen of a country enumerated in paragraph (e)(3) of this section 

who:

    (i) Is classifiable as a vistor for business or pleasure;

    (ii) Is solely entering and staying on Guam for a period not to 

exceed fifteen days;

    (iii) Is in possession of a round-trip nonrefundable and 

nontransferable transportation ticket bearing a confirmed departure date 

not exceeding fifteen days from the date of admission to Guam;

    (iv) Is in possession of a completed and signed Visa Waiver 

Information Form (Form I-736);

    (v) Waives any right to review or appeal the immigration officer's 

determination of admissibility at the port of entry at Guam; and

    (vi) Waives any right to contest any action for deportation, other 

than on the basis of a request for asylum.

    (2) An alien is eligible for the waiver provision if all of the 

eligibility criteria in paragraph (e)(1) of this section have been met 

prior to embarkation and the alien is a citizen of a country that:

    (i) Has a visa refusal rate of 16.9% or less, or a country whose 

visa refusal rate exceeds 16.9% and has an established preinspection or 

preclearance program, pursuant to a bilateral agreement with the United 

States under which its citizens traveling to Guam without a valid United 

States visa are inspected by the Immigration and Naturalization Service 

prior to departure from that country;

    (ii) Is within geographical proximity to Guam, unless the country 

has a substantial volume of nonimmigrant admissions to Guam as 

determined by the Commissioner and extends reciprocal privileges to 

citizens of the United States;

    (iii) Is not designated by the Department of State as being of 

special humanitarian 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 United 

States, its territories, or commonwealths will be dealt with on a 

country by country basis, and a determination by the Commissioner of the 

Immigration and Naturalization Service that a threat exists will result 

in the immediate deletion of that country from the listing in paragraph 

(e)(3) of this section.

    (3)(i) The following geographic areas meet the eligibility criteria 

as stated in paragraph (e)(2) of this section: Australia, Brunei, 

Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, 

Republic of Korea, Singapore, Solomon Islands, Taiwan (residents thereof 

who begin their travel in Taiwan and who travel on direct flights from 

Taiwan to Guam without an intermediate layover or stop except that the 

flights may stop in a territory of the United States enroute), the 

United Kingdom (including the citizens of the colony of Hong Kong), 

Vanuatu, and Western Samoa. The provision that flights transporting 

residents of Taiwan to Guam may stop at a territory of the United States 

enroute may be rescinded whenever the number of inadmissible passengers 

arriving in Guam who have transited a territory of the United States 

enroute to Guam exceeds 20 percent of all the inadmissible passengers 

arriving in Guam within any consecutive two-month period. Such 

rescission will be published in the Federal Register.

    (ii) For the purposes of this section, the term citizen of a country 

as used in 8 CFR 212.1(e)(1) when applied to Taiwan refers only to 

residents of Taiwan



[[Page 188]]



who are in possession of Taiwan National Identity Cards and a valid 

Taiwan passport with a valid re-entry permit issued by the Taiwan 

Ministry of Foreign Affairs. It does not refer to any other holder of a 

Taiwan passport or a passport issued by the People's Republic of China.

    (4) Admission under this section renders an alien ineligible for:

    (i) Adjustment of status to that of a temporary resident or, except 

under the provisions of section 245(i) of the Act, to that of a lawful 

permanent resident;

    (ii) Change of nonimmigrant status; or

    (iii) Extension of stay.

    (5) A transportation line bringing any alien to Guam pursuant to 

this section shall:

    (i) Enter into a contract on Form I-760, made by the Commissioner of 

the Immigration and Naturalization Service in behalf of the government;

    (ii) Transport only an alien who is a citizen and in possession of a 

valid passport of a country enumerated in paragraph (e)(3) of this 

section;

    (iii) Transport only an alien in possession of a round-trip, 

nontransferable transportation ticket:

    (A) Bearing a confirmed departure date not exceeding fifteen days 

from the date of admission to Guam,

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

    (C) Nonrefundable except in the country in which issued or in the 

country of the alien's nationality or residence,

    (D) Issued by a carrier which has entered into an agreement 

described in part (5)(i) of this section, and

    (E) Which the carrier will unconditionally honor when presented for 

return passage; and

    (iv) Transport only an alien in possession of a completed and signed 

Visa Waiver Information Form I-736.

    (f) Direct transits.

    (1)-(2) [Reserved]

    (3) Foreign government officials in transit. If an alien is of the 

class described in section 212(d)(8) of the Act, only a valid unexpired 

visa and a travel document valid for entry into a foreign country for at 

least 30 days from the date of admission to the United States are 

required.

    (g) Unforeseen emergency. A nonimmigrant seeking admission to the 

United States must present an unexpired visa and a passport valid for 

the amount of time set forth in section 212(a)(7)(B) of the Act or a 

valid biometric border crossing card, issued by the DOS on Form DSP-150, 

at the time of application for admission, unless the nonimmigrant 

satisfies the requirements described in one or more of the paragraphs 

(a) through (f),(i) or (o) of this section. Upon a nonimmigrant's 

application on Form I-193, Application for Waiver of Passport and/or 

Visa, a district director may, in the exercise of his or her discretion, 

on a case-by-case basis, waive the documentary requirements if satisfied 

that the nonimmigrant cannot present the required documents because of 

an unforeseen emergency. The district director or the Deputy 

Commissioner may at any time revoke a waiver previously authorized 

pursuant to this paragraph and notify the nonimmigrant in writing to 

that effect.

    (h) Nonimmigrant spouses, fianc[eacute]es, fianc[eacute]s, and 

children of U.S. citizens. Notwithstanding any of the provisions of this 

part, an alien seeking admission as a spouse, fianc[eacute]e, 

fianc[eacute], or child of a U.S. citizen, or as a child of the spouse, 

fian[eacute], or finac[eacute]e of a U.S. citizen, pursuant to section 

101(a)(15)(K) of the Act shall be in possession of an unexpired 

nonimmigrant visa issued by an American consular officer classifying the 

alien under that section, or be inadmissible under section 212(a)(7)(B) 

of the Act.

    (i) Visa Waiver Pilot Program. A visa is not required of any alien 

who is eligible to apply for admission to the United States as a Visa 

Waiver Pilot Program applicant pursuant to the provisions of section 217 

of the Act and part 217 of this chapter if such alien is a national of a 

country designated under the Visa Waiver Pilot Program, who seeks 

admission to the United States for a period of 90 days or less as a 

visitor for business or pleasure.

    (j) Officers authorized to act upon recommendations of United States 

consular officers for waiver of visa and passport requirements. All 

district directors, the officers in charge are authorized to act upon 

recommendations made by United



[[Page 189]]



States consular officers or by officers of the Visa Office, Department 

of State, pursuant to the provisions of 22 CFR 41.7 for waiver of visa 

and passport requirements under the provisions of section 212(d)(4)(A) 

of the Act. The District Director at Washington, DC, has jurisdiction in 

such cases recommended to the Service at the seat of Government level by 

the Department of State. Neither an application nor fee are required if 

the concurrence in a passport or visa waiver is requested by a U.S. 

consular officer or by an officer of the Visa Office. The district 

director or the Deputy Commissioner, may at any time revoke a waiver 

previously authorized pursuant to this paragraph and notify the 

nonimmigrant alien in writing to that effect.

    (k) Cancellation of nonimmigrant visas by immigration officers. Upon 

receipt of advice from the Department of State that a nonimmigrant visa 

has been revoked or invalidated, and request by that Department for such 

action, immigration officers shall place an appropriate endorsement 

thereon.

    (l) Treaty traders and investors. Notwithstanding any of the 

provisions of this part, an alien seeking admission as a treaty trader 

or investor under the provisions of Chapter 16 of the North American 

Free Trade Agreement (NAFTA) pursuant to section 101(a)(15)(E) of the 

Act, shall be in possession of a nonimmigrant visa issued by an American 

consular officer classifying the alien under that section.

    (m) Aliens in S classification. Notwithstanding any of the 

provisions of this part, an alien seeking admission pursuant to section 

101(a)(15)(S) of the Act must be in possession of appropriate documents 

issued by a United States consular officer classifying the alien under 

that section.

    (n) Alien in Q-2 classification. Notwithstanding any of the 

provisions of this part, an alien seeking admission as a principal 

according to section 101(a)(15)(Q)(ii) of the Act must be in possession 

of a Certification Letter issued by the Department of State's Program 

Administrator documenting participation in the Irish peace process 

cultural and training programs.

    (o) Alien in T-2 through T-4 classification. Individuals seeking T-2 

through T-4 nonimmigrant status may avail themselves of the provisions 

of paragraph (g) of this section, except that the authority to waive 

documentary requirements resides with the Service Center.



(Secs. 103, 104, 212 of the Immigration and Nationality Act, as amended 

(8 U.S.C. 1103, 1104, 1132))



[26 FR 12066, Dec. 16, 1961]



    Editorial Note: For Federal Register citations affecting Sec. 

212.1, see the List of CFR Sections Affected, which appears in the 

Finding Aids section in the printed volume and on GPO Access.