[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: 8CFR212.4]



[Page 192-196]

 

                     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. 212.4  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



[[Page 193]]



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 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



[[Page 194]]



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--(1) General. Except as provided in 

paragraph (c)(2) of this section, each authorization under section 

212(d)(3)(A) or (B) of the Act shall specify:

    (i) Each section of law under which the alien is inadmissible;

    (ii) The intended date of each arrival, unless the applicant is a 

bona fide crewman. However, if the authorization is valid for multiple 

entries rather than for a specified number of entries, this information 

shall be specified only with respect to the initial entry;

    (iii) The length of each stay authorized in the United States, which 

shall not exceed the period justified and shall be subject to 

limitations specified in 8 CFR part 214. However, if the authorization 

is valid for multiple entries rather than for a specified number of 

entries, this information shall be specified only with respect to the 

initial entry;

    (iv) The purpose of each stay;

    (v) The number of entries for which the authorization is valid;

    (vi) Subject to the conditions set forth in paragraph (c)(2) of this 

section, the dates on or between which each application for admission at 

POEs in the United States is valid;

    (vii) The justification for exercising the authority contained in 

section 212(d)(3) of the Act; and

    (viii) That the authorization is subject to revocation at any time.

    (2) Conditions of admission. (i) For aliens issued an authorization 

for temporary admission in accordance with this section, admissions 

pursuant to section 212(d)(3) of the Act shall be subject to the terms 

and conditions set forth in the authorization.

    (ii) The period for which the alien's admission is authorized 

pursuant to this section shall not exceed the period justified, or the 

limitations specified, in 8 CFR part 214 for each class of nonimmigrant, 

whichever is less.

    (3) Validity. (i) Authorizations granted to crew members may be 

valid for a maximum period of 2 years for application for admission at 

U.S. POEs and may be valid for multiple entries.

    (ii) An authorization issued in conjunction with an application for 

a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the DOS 

shall be valid for a period not to exceed the validity of the biometric 

BCC for applications for admission at U.S. POEs and shall be valid for 

multiple entries.

    (iii) A multiple entry authorization for a person other than a crew 

member or applicant for a Form DSP-150 may be made valid for a maximum 

period of 5 years for applications for admission at U.S. POEs.

    (iv) An authorization that was previously issued in conjunction with 

Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is 

noted on the card may remain valid. Although the waiver may remain 

valid, the non-biometric border crossing card portion of this document 

is not valid



[[Page 195]]



after that date. This waiver authorization shall cease if otherwise 

revoked or voided.

    (v) A single-entry authorization to apply for admission at a U.S. 

POE shall not be valid for more than 6 months from the date the 

authorization is issued.

    (vi) An authorization may not be revalidated. Upon expiration of the 

authorization, a new application and authorization are required.

    (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 have a right of appeal from any 

decision to revoke.

    (2) Grounds of removal. Nothing shall prohibit the Service from 

removing



[[Page 196]]



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; 67 FR 71448, Dec. 2, 2002]