such classes by virtue of INA 203(a)(8)).

(33) Certain former Nazis. [Reserved]

(b) Failure of application to comply with INA-(1) Refusal under INA 221(g). The consular officer shall refuse an alien's visa application under INA 221(g)(2) as failing to comply with the provisions of INA or the implementing regulations if:

(i) The applicant fails to furnish information as required by law or regulations;

(ii) The application contains a false or incorrect statement other than one which would constitute a ground of ineligibility under INA 212(a)(19);

(iii) The application is not supported by the documents required by law or regulations;

(iv) The applicant refuses to be fingerprinted as required by regulations;

(v) The necessary fee is not paid for the issuance of the visa, or, in the case of an immigrant visa, for the application therefor;

(vi) In the case of an immigrant visa application, the alien fails to swear to, or affirm, the application before the consular officer; or

(vii) The application otherwise fails to meet specific requirements of law or regulations for reasons for which the alien is responsible.

(2) Reconsideration of refusals. A refusal of a visa application under paragraph (b)(1) of this section does not bar reconsideration of the application upon compliance by the applicant with the requirements of INA and the implementing regulations or consideration of a subsequent application submitted by the same applicant.

(c) Certain former exchange visitors. An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, and who is within the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not eligible to apply for or receive an immigrant visa or a nonimmigrant visa under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval of a petition on the alien's behalf, unless:

(1) It has been established that the alien has resided and has been physically present in the country of the alien's nationality or last residence for an aggregate of at least 2 years following the termination of the alien's exchange visitor status as required by INA 212(e), or

(2) The foreign residence requirement of INA 212(e) has been waived by the Attorney General in the alien's behalf.

(d) Alien entitled to A, E, or G nonimmigrant classification. An alien entitled to nonimmigrant classification under INA 101(a)(15) (A), (E), or (G) who is applying for an immigrant visa and who intends to continue the activities required for such nonimmigrant classification in the United States is not eligible to receive an immigrant visa until the alien executes a written waiver of all rights, privileges, exemptions and immunities which would accrue by reason of such occupational status.

[52 FR 42592, Nov. 5, 1987; 53 FR 9110, 9172, Mar. 21, 1988]

§ 40.8 Waiver for ineligible nonimmigrant under INA 212(d)(3)(A).

(a) Report or recommendation submitted to Department. Except as provided in paragraph (b) of this section, consular officers may, upon their own initiative, and shall, upon the request of the Secretary of State or upon the request of the alien, submit a report to the Department for possible transmission to the Attorney General pursuant to the provisions of INA_212(d)(3)(A) in the case of an alien who is classifiable as a nonimmigrant but who is known or believed by the consular officer to be ineligible to receive a nonimmigrant visa under the provisions of INA 212(a), other than for § 40.7(a) (27), (29), and (33).

(b) Delegated approval authority(1) Consular officers. A consular officer may, in certain categories defined by the Secretary of State, approve on behalf of the Attorney General a recommendation by a consular officer, other than the approving officer, that the temporary admission of an alien ineligible to receive a visa solely under section 212(a)(28)(C) of the Act be au

thorized under the provisions of section 212(d)(3)(A) of the Act;

(2) Designated INS officers abroad. A consular officer may, in certain categories defined by the Secretary of State, recommend directly to designated INS officers that the temporary admission of an alien ineligible to receive a visa, other than an alien described in paragraph (b)(1) of this section, be authorized under INA 212(d)(3)(A).

(c) Attorney General may impose conditions. When the Attorney General authorizes the temporary admission of an ineligible alien as a nonimmigrant and the consular officer is so informed, the consular officer may proIceed with the issuance of a nonimmigrant visa to the alien, subject to the conditions, if any, imposed by the Attorney General.

Subpart A-Passport and Visas Not Required for Certain Nonimmigrants

§ 41.1 Exemption by law or treaty from passport and visa requirements.

Nonimmigrants in the following categories are exempt from the passport and visa requirements of INA 212(a)(26):

(a) Alien members of the U.S. Armed Forces. An alien member of the U.S. Armed Forces in uniform or bearing proper military identification, who has not been lawfully admitted for permanent residence coming to the United States under official orders or permit of such Armed Forces. (Sec. 284, 86 Stat. 232; 8 U.S.C. 1354.)

(b) American Indians born in Canada. An American Indian born in Canada, having at least 50 per centum of blood of the American Indian race (Sec. 289, 66 Stat. 234; 8 U.S.C. 1359.)

(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. An alien departing from Guam, Puerto Rico, or the Virgin Islands of the United States, and seeking to enter the continental United States or any other place under the jurisdiction of the United States (Sec. 212, 66 Stat. 188; 8 U.S.C. 1182.)

(d) Armed Services personnel of a NATO member. Personnel belonging to the armed services of a government which is a Party to the North Atlantic Treaty and which has ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed at London on June 19, 1951, and entering the United States under Article III of that Agreement pursuant to an individual or collective movement order issued by an appropriate agency of the sending state or of NATO (TIAS 2846; 4 U.S.T. 1792.)

(e) Armed Services personnel attached to a NATO headquarters in the United States. Personnel attached to a NATO Headquarters in the United States set up pursuant to the North Atlantic Treaty, belonging to the armed services of a government which is a Party to the Treaty and entering the United States in connection with their official duties under the provisions of the Protocol on the Status of

International Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 2978; 5 U.S.T. 875.)

(f) Aliens entering pursuant to International Boundary and Water Commission Treaty. All personnel 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 (59 Stat. 1252; TS 994.)

§ 41.2 Waiver by Secretary of State and Attorney General of passport and/or visa requirements for certain categories of nonimmigrants.

Pursuant to the authority of the Secretary of State and the Attorney General under INA 212(d)(4), the passport and/or visa requirements of INA 212(a)(26) are waived as specified below for the following categories of nonimmigrants:

(a) Canadian nationals. A passport is not required except after a visit outside the Western Hemisphere. A visa is not required.

(b) Aliens resident in Canada or Bermuda having a common nationality with nationals of Canada or with British subjects in Bermuda. A passport is not required except after a visit outside the Western Hemisphere. A visa is not required.

(c) Bahamian nationals and British subjects resident in the Bahamas. A passport is required. A visa is not required if, prior to the embarkation of such an alien for the United States on a vessel or aircraft, the examining U.S. immigration officer at Freeport or Nassau determines that the individual is clearly and beyond a doubt entitled to admission.

(d) British subjects resident in the Cayman Islands or in the Turks and Caicos Islands. A passport is required. A visa is not required if the alien 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.

(e) British, French, and Netherlands nationals and nationals of certain adjacent islands of the Caribbean which are independent countries. A passport is required. A visa is not required of a British, French or Netherlands national, or of a national of Antigua, Barbados; Grenada, Jamaica, or Trinidad and Tobago, who has residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or has residence in Antigua, Barbados, Grenada, Jamaica, or Trinidad and Tobago, if the alien:

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

(2) 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 thereto for employment, or is the spouse or child of such an alien accompanying or following to join the alien.

(f) Nationals and residents of the British Virgin Islands proceeding to the Virgin Islands of the United States. A passport is required. A visa is not required of a national of the British Virgin Islands who resides therein and is proceeding to the Virgin Islands of the United States.

(g) Mexican nationals. (1) A visa and a passport are not required of a Mexican national in possession of a border crossing identification card and applying for admission as a temporary visitor for business or pleasure from contiguous territory.

(2) A visa is not required of a Mexican national possessing a border crossing identification card and applying for admission to the United States as a temporary visitor for business pleasure or in transit from noncontiguous territory.

or

(3) A visa is not required of a Mexican national employed as a crew member on an aircraft belonging to a Mexican company authorized to engage in commercial transportation into the United States.

(4) A visa is not required of a Mexican national bearing a Mexican diplomatic or official passport who is a military or civilian official of the Federal

Government of Mexico entering the United States for a stay of up to 6 months for any purpose other than on assignment as a permanent employee to an office of the Mexican Federal Government in the United States. A visa is also not required of the official's spouse or any of the official's dependent family members under 19 years of age who hold diplomatic or official passports and are in the actual company of the official at the time of entry. This waiver does not apply to the spouse or any of the official's family members classifiable under INA 101(a)(15) (F) or (M).

(h) Natives and residents of the Trust Territory of the Pacific Islands. A visa and a passport are not required of a native and resident of the Trust Territory of the Pacific Islands who has proceeded in direct and continuous transit from the Trust Territory to the United States.

(i) Aliens in immediate transit without visa (TWOV). A passport and visa are not required of an alien in immediate and continuous transit through the United States in accordance with the terms of an agreement entered into between the carrier and INS on Form I-426, Immediate and Continuous Transit Agreement Between a Transportation Line and United States of America, pursuant to INA 238(d) to ensure transit through and departure from the United States en route to a specified foreign country. The alien must be in possession of travel documentation establishing identity, nationality, and ability to enter a country other than the United States. This waiver of visa and passport requirement is not available to an alien who is a citizen of Afghanistan, Bangladesh, Cuba, India, Iran, Iraq, Libya, Pakistan or Sri Lanka. This waiver of visa and passport requirements is also not available to an alien who is a citizen of North Korea ("Democratic Peoples' Republic of Korea") or Vietnam ("Socialist Republic of Vietnam"), and is a resident of one of the said countries. It is, on a basis of reciprocity, available to a national of Albania, Bulgaria, Czechoslovakia, Estonia, the German Democratic Republic, Hungary, Latvia, Lithuania, Mongolian People's Republic, People's Republic of China,

Poland, Romania, or the Union of Soviet Socialist Republic, resident in one of those countries, only if he is transiting the United States by aircraft of a transportation line signatory to an agreement with the Immigration and Naturalization Service on Form 1426 on a direct through flight which will depart directly to a foreign place from the port of arrival.

(j) Individual cases of unforeseen emergencies. A visa and passport are not required of an alien if, either prior to the alien's embarkation abroad or upon arrival at a port of entry, the responsible INS district director in charge of the port of entry concludes, with the concurrence of the Director of the Visa Office, that the alien was unable to obtain the required documents because of an unforeseen emergency.

(k) Fiance(e) of a U.S. citizen. Notwithstanding the provisions of paragraphs (a) through (h) of this section, a visa is required of an alien described in such paragraphs who is classified, or who seeks classification, under INA 101(a)(15)(K).

(1) Visa Waiver Pilot Program. Notwithstanding the provisions of paragraphs (a) through (k) of this section, a visa is not required of any person 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, if such a person is a citizen of a country designated as a participant in 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. Countries so designated are: the United Kingdom (effective July 1, 1988) and Japan (effective December 15, 1988).

(m) Treaty Trader and Treaty Investor. Notwithstanding the provisions of paragraph (a) of this section, a visa is required of a Canadian national who is classified, or who seeks classification, under INA 101(a)(15)(E).

[52 FR 42597, Nov. 5, 1987; 53 FR 9110, Mar. 21, 1988; 53 FR 50162, Dec. 13, 1988; 53 FR 53375, Dec. 30, 1988]

§ 41.3 Waiver by joint action of consular and immigration officers of passport and/or visa requirements.

Under the authority of INA 212(d)(4), the documentary requirements of INA 212(a)(26) may be waived for any alien in whose case the consular officer serving the port or place of embarkation is satisfied after consultation with, and concurrence by, the appropriate immigration officer, that the case falls within any of the following categories:

(a) Residents of foreign contiguous territory; visa and passport waiver. An alien residing in foreign contiguous territory who does not qualify for any waiver provided in § 41.1 and is a member of a visiting group or excursion proceeding to the United States under circumstances which make it impractical to procure a passport and visa in a timely manner.

(b) Aliens for whom passport extension facilities are unavailable; passport waiver. As alien whose passport is not valid for the period prescribed in INA 212(a)(26) and who is embarking for the United States at a port or place remote from any establishment at which the passport could be revalidated.

(c) Aliens precluded from obtaining passport extensions by foreign government restrictions; passport waiver. An alien whose passport is not valid for the period prescribed in INA 212(a)(26) and whose government, as a matter of policy, does not revalidate passports more than 6 months prior to expiration or until the passport expires.

(d) Emergent circumstances; visa waiver. An alien well and favorably known at the consulat office, who was previously issued a nonimmigrant visa which has expired, and who is proceeding directly to the United States under emergent circumstances which preclude the timely issuance of a visa.

(e) Members of armed forces of foreign countries; visa and passport waiver. An alien on active duty in the armed forces of a foreign country and a member of a group of such armed forces traveling to the United States, on behalf of the alien's government or the United Nations, under advance ar