PART

40-REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

Sec.

Subpart A-General Provisions

40.1 Definitions.

40.2 Documentation of nationals.

40.3 Entry into areas under U.S. administration.

40.4 Furnishing records and information from visa files for court proceedings.

Subpart B—Ineligibility

40.6 Basis for refusal.

40.7 Grounds of ineligibility.

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

AUTHORITY: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec. 109(b)(1), Pub. L. 95-105, 91 Stat. 847.

SOURCE: 52 FR 42592, Nov. 5, 1987, unless otherwise noted.

Subpart A-General Provisions

§ 40.1 Definitions.

The following definitions supplement definitions contained in the Immigration and Nationality Act (INA). As used in these regulations, the term:

(a) "Accompanying" or "accompanied by" means not only an alien in the physical company of a principal alien but also an alien who is issued an immigrant visa within 4 months of either the date of issuance of a visa to, or the date of adjustment of status in the United States of, the principal alien, or the date on which the principal alien personally appears and registers before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. An "accompanying" relative may not precede the principal alien to the United States.

(b) "Act" means the Immigration and Nationality Act (or INA), as amended.

(c) "Competent officer," as used in INA 101(a)(26), means a "consular officer" as defined in INA 101(a)(9).

(d) "Consular officer," as defined in INA 101(a)(9), includes commissioned consular officers and the Director of the Visa Office of the Department and such other officers as the Director may designate for the purpose of issuing nonimmigrant visas only, but does not include a consular agent, an attache or an assistant attache. The assignment by the Department of any Foreign Service Officer to a diplomatic or consular office abroad in a position administratively designated as requiring, solely, partially, or principally, the performance of consular functions, and the initiation of a request for a consular commission, constitutes designation of the officer as a "consular officer" within the meaning of INA 101(a)(9).

(e) "Department" means the Department of State of the United States of America.

(f) "Dependent area" means a colony or other component or dependent area overseas from the governing foreign state, natives of which are subject to the limitation prescribed by INA 202(c).

(g) "Documentarily qualified" means that the alien has reported that all the documents specified by the consular officer as sufficient to meet the requirements of INA 222(b) have been obtained, and that necessary clearance procedures of the consular office have been completed. This term shall be used only with respect to the alien's qualification to apply formally for an immigrant visa; it bears no connotation that the alien is eligible to receive a visa.

(h) "Entitled to immigrant classification" means that the alien:

(1) Is the beneficiary of an approved petition granting immediate relative or preference status;

(2) Has satisfied the consular officer as to entitlement to special immigrant status under INA 101(a)(27); or

(3) Has obtained an individual labor certification, or is within one of the professional or occupational groups

listed in Schedule A of the Department of Labor regulations, or is within one of the classes described in § 40.7(a)(14) (iii) and is therefore not within the purview of INA 212(a)(14).

(i) With respect to alternate chargeability pursuant to INA 202(b), the term "foreign state" is not restricted to those areas to which the numerical limitation prescribed by INA 202(a) applies but includes dependent areas, as defined in this section.

(j) "INA" means the Immigration and Nationality Act, as amended.

(k) "INS" means the Immigration and Naturalization Service.

(1) "Not subject to numerical limitation" means that the alien is entitled to immigrant status as an immediate relative within the meaning of INA 201(b), or as a special immigrant within the meaning of INA 101(a)(27), unless specifically subject to a limitation other than under INA 201(a).

(m) "Parent," "father," and "mother," as defined in INA 101(b) (2), are terms which are not changed in meaning if the child becomes 21 years of age or marries.

(n) "Port of entry" means a port or place designated by the Commissioner of Immigration and Naturalization at which an alien may apply to INS for admission into the United States.

(o) "Principal alien" means an alien from whom another alien derives a privilege or status under the law or regulations.

(p) "Regulation" means a rule which is established under the provisions of INA 104(a) and is duly published in the FEDERAL REGISTER.

(q) "Son" or "daughter" includes only a person who would have qualified as a "child" under INA 101(b)(1) if the person were under 21 and unmarried.

(r) "Western Hemisphere" means North America (including Central America), South America and the islands immediately adjacent thereto including the places named in INA 101(b)(5).

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

A visa can be refused only upon a ground specifically set out in the law or implementing regulations. The term "reason to believe," as used in INA 221(g), shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in INA and as implemented by the regulations. Consideration shall be given to any evidence submitted indicating that the ground for a prior refusal of a visa may no longer exist. The burden of proof is upon the applicant to establish eligibility to receive a visa under INA 212 or any other provision of law or regulation.

§ 40.7 Grounds of ineligibility.

(a) Aliens ineligible under INA 212(a). Determinations relating to in

eligibility of aliens under INA 212(a) shall be governed by the following:

(1)-(6) Medical grounds of ineligibility—(i) Decision on eligibility based on findings of medical doctor. A finding of a panel physician designated by the post in whose jurisdiction the examination is performed pursuant to INA 212(a)(1) through (6), shall be binding on the consular officer, except that the officer may refer a panel physician finding in an individual case to USPHS for review.

(ii) Waivers of ineligibility for certain immigrants. The provisions of INA 212(g) shall apply to an immigrant alien ineligible under INA 212(a)(1) or (3) or afflicted with tuberculosis in any form who is the spouse, unmarried son or daughter, the minor unmarried lawfully adopted child, or the parent of a U.S. citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa.

(7) Physical defect affecting alien's ability to earn a living. A consular officer may issue a visa to an alien who is within the purview of INA 212(a)(7) upon receipt of a notice from INS of the giving of a bond or undertaking in accordance with INA 213 and INA 221(g)(3), if the consular officer is satisfied that the giving of such bond or undertaking removes the likelihood that the alien might become a public charge within the meaning of INA 212(a)(15) and the alien is otherwise eligible to receive a visa.

(8) Pauper, professional beggar, or vagrant. The provisions of INA 212(a)(8) shall apply only in the case of an alien who is at the time of visa application a pauper, professional beggar, or vagrant.

(9) Crime involving moral turpitude-(i) Acts must constitute a crime under criminal law of jurisdiction where they occurred. Before a finding of ineligibility under INA 212(a)(9) may be made because of an admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, it must first be established that the acts constitute a crime under the criminal law of the jurisdiction where they occurred. A determination that a crime involves moral turpitude shall be

based upon the moral standards generally prevailing in the United States.

(ii) Conviction for crime committed when under age 18. An alien shall not be ineligible to receive a visa under INA 212(a)(9) by reason of any offense committed prior to the alien's fifteenth birthday. Nor shall an alien be ineligible to receive a visa under INA 212(a)(9) by reason of any offense committed between the alien's fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code. An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, shall be subject to the provisions of INA 212(a)(9) regardless of whether at that time juvenile courts existed within the jurisdiction of the convictions.

(iii) Two or more crimes committed while under age 18. An alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has committed an additional crime involving moral turpitude is ineligible under INA 212(a)(9), even though the crimes were committed while the alien was under the age of 18 years.

(iv) Waiver of ineligibility-INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(9) but has the requisite family relationship to seek the benefits of INA 212(h), the consular officer shall advise the alien of the procedure for applying to INS for relief under that section. A visa may not be issued to the alien until the consular officer has received notification from INS of the approval of the alien's application under INA 212(h).

(v) Conviction in absentia. A conviction in absentia of a crime involving moral turpitude does not constitute a conviction within the meaning of INA 212(a)(9).

(vi) Effect of pardon by appropriate U.S. authorities/foreign States. An alien shall not be considered ineligible under INA 212(a)(9) by reason of a conviction of a crime involving moral

turpitude for which a full and unconditional pardon has been granted by the President of the United States, by the Governor of a State of the United States, by the former High Commissioner for Germany acting pursuant to Executive Order 10062, or by the United States Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. A legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(9).

(vii) Political offenses. The term "purely political offense", as used in INA 212(a)(9), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.

(10) Conviction of two or more offenses-(i) Waiver of ineligibility—INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(10) but has the requisite family relationship to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to INS for relief under that section. A visa may not be issued to the alien until the consular officer has received notification from INS of the approval of the alien's application under INA 212(h).

(ii) Conviction(s) for crime(s) committed under age 18. An alien shall not be ineligible to receive a visa under INA 212(a)(10) by reason of any offense committed prior to the alien's fifteenth birthday. Nor shall an alien be ineligible under INA 212(a)(10) by reason of any offense committed between the alien's fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code. An alien, tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, and who has also been convicted of at least one other such offense or any other offense committed as an adult, shall be subject to the provisions of INA 212(a)(10) re

gardless of whether at that time juvenile courts existed within the jurisdiction of the conviction.

(iii) Conviction in absentia. A conviction in absentia shall not constitute a conviction within the meaning of INA 212(a)(10).

authorities/foreign

(iv) Effect of pardon by appropriate U.S. States. An alien shall not be considered ineligible under INA 212(a)(10) by reason in part of having been convicted of an offense for which a full and unconditional pardon has been granted by the President of the United States, by the Governor of a State of the United States, by the former High Commissioner for Germany acting pursuant to Executive Order 10062, or by the United States Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. A legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(10).

(v) Poltical offense. The term "purely political offense", as used in INA 212(a)(10), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.

(vi) Suspended sentence. A sentence to confinement that has been suspended by a court of competent jurisdiction is not one which has been "actually imposed" within the meaning of INA 212(a)(10).

(11) Polygamy-(i) Nonimmigrants not subject to INA 212(a)(11). A nonimmigrant visa applicant is exempted from the provisions of INA 212(a)(11) by INA 212(d)(1).

(ii) Immigrant must personally be a polygamist. An immigrant visa applicant who is a member of a religious organization which tolerates polygamy is not ineligible under INA 212(a)(11) unless the alien is personally a polygamist, or practices or advocates the practice of polygamy.

(12) Prostitution, procuring, and related activities-(i) Prostitute defined. The term "prostitute" means a person given to promiscuous sexual intercourse for hire. A finding that an alien has "engaged" in prostitution must be

based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.

(ii) Former prostitute ineligible. The fact that an alien may have ceased to engage in prostitution shall not serve to remove the existing ground of ineligibility under INA 212(a)(12).

(iii) Where prostitution not illegal. A person who comes under one or more of the categories of persons described in INA 212(a)(12) is ineligible to receive a visa under that section even if the acts engaged in are not prohibited under the laws of the foreign country where the acts occurred.

(iv) Waiver of ineligibility—INA 212(h). If an alien applying for an immigrant visa is ineligible under INA 212(a)(12) but qualifies for the benefits of INA 212(h) the consular officer shall inform the alien of the procedure for applying to INS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from INS of the approval of the alien's application under INA 212(h).

(13) Immoral sexual act. An alien shall not be ineligible under INA 212(a)(13) unless the alien's primary purpose in coming to the United States is to engage in an immoral sexual act.

(14) Aliens entering the United States to perform skilled or unskilled labor-(i) INA 212(a)(14) applicable only to certain immigrant aliens. INA 212(a)(14) applies only to immigrant aliens described in INA 203(a)(3), (6), or (7) who are seeking to enter for the purpose of engaging in gainful employment. It does not apply to nonimmigrant aliens or to immigrant aliens described in INA 101(a)(27)(A) through (I), 201(b) or 203(a)(1), (2), (4), or (5).

(ii) Determination of need for alien's labor skills. An alien within one of the classes described in INA 203(a)(3), (6), or (7), who seeks to enter the United States for the purpose of engaging in gainful employment, is ineligible under INA 212(a)(14) to receive a visa

unless the Secretary of Labor has certified to the Attorney General and the Secretary of State, that

(A) There are not sufficient workers in the United States who are able, willing, qualified, (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts) and available at the time of application for a visa and at the place to which the alien is destined to perform such skilled or unskilled labor, and

(B) The employment of such alien will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

(iii) Labor certification not required in certain cases. The following persons are not considered to be within the purview of INA 212(a)(14) and do not require a labor certification:

(A) An alien who establishes to the satisfaction of the consular officer that the alien does not intend to seek employment;

(B) A spouse or child accompanying or following to join an alien spouse or parent who either has a labor certification or is a nondependent alien not requiring such certification; or

(C) An alien who establishes by documentary evidence that the purpose of admission is to engage in an enterprise in which the alien:

(1) Has invested, or is actively in the process of investing, capital totaling at least $100,000;

(2) Will be a principal manager of the enterprise; and

(3) Will employ at least one person in the United States who is a citizen or an alien lawfully admitted for permanent residence, exclusive of the principal alien and the spouse and children of such principal alien.

(iv) Western Hemisphere aliens registered prior to January 1, 1977. Notwithstanding the provisions of paragraphs (a)(14)(i) and (ii) of this section, an alien who is within the purview of 22 CFR 42.53(c) is deemed to have met the requirements of INA 212(a)(14) for the purpose of applying for an immigrant visa, if the status, relationship, or other qualification which formed the basis for the alien's original registration as an intending