immigrant still exists when the alien applies for a visa. If such status, relationship, or other qualification no longer exists, the alien must again become entitled to nonpreference immigrant classification.

(15) Public charge-(i) Basis for determination of ineligibility. Any determination that an alien is ineligible under INA 212(a)(15) must be predicated upon circumstances indicating that the alien will probably become a public charge after admission.

(ii) Posting of bond. A consular officer may issue a visa to an alien who is within the purview of INA 212(a)(15) upon receipt of notice from INS of the giving of a bond or undertaking in accordance with INA 213 and INA 221(g), provided the 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 this section of the law and that the alien is otherwise eligible in all respects.

(iii) Prearranged employment. An immigrant visa applicant relying on an offer of prearranged employment to establish eligibility under INA 212(a)(15), other than an offer of employment certified by the Department of Labor pursuant to INA 212(a)(14), must establish the offer of employment by a document that confirms the essential elements of the employment offer. Any document presented to confirm the employment offer must be sworn and subscribed to before a notary public by the employer or an authorized employee or agent of the employer. The signer's printed name and position or other relationship with the employer must accompany the signature.

(iv) Significance of income poverty guidelines. An immigrant visa applicant relying solely on personal income to establish eligibility under INA 212(a)(15), who does not demonstrate an annual income above the income poverty guidelines published by the Office of the Assistant Secretary for Planning and Evaluation, Department of Health and Human Services, and who is without other adequate financial resources, shall be presumed ineligible under INA 212(a)(15).

(16)-(17) Alien deported—(i) Aliens excluded and deported under INA 212(a)(16). An alien who was excluded and deported from the United States under INA 212(a)(16) may not be issued a visa within 1 year from the date of deportation unless the alien has obtained permission from INS to reapply for admission.

(ii) Aliens arrested and deported or removed from the United States under INA 212(a)(17). An alien who was arrested and deported from the United States or who was removed from the United States as stated in INA 212(a)(17) shall not be issued a visa unless the alien has remained outside the United States for at least five successive years following the last deportation or removal or has obtained permission from the Immigration and Naturalization Service to reapply for admission to the United States.

(18) Stowaways. INA 212(a)(18) is not applicable at the time of visa application.

(19) Fraud and misrepresentation— (i) Fraud and misrepresentation and INA 212(a)(19) applicability to certain refugees. An alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the Act by fraud or willfully misrepresenting a material fact at any time shall be ineligible under INA 212(a)(19); provided, that the provisions of this paragraph are not applicable if the fraud or misrepresentation was committed by an alien at the time the alien sought entry into a country other than the United States or obtained travel documents as a bona fide refugee and the refugee was in fear of being repatriated to a former homeland if the facts were disclosed in connection with an application for a visa to enter the United States; provided further, that the fraud or misrepresentation was not committed by such refugee for the purpose of evading the quota or numerical restrictions of the U.S. immigration laws, or investigation of the alien's record at the place of former residence or elsewhere in connection with an application for a visa. (ii) Misrepresentation in application under Displaced Persons Act or Refu

gee Relief Act. Subject to the conditions stated in paragraph (a)(19)(i) of this section, an alien who is found by the consular officer to have made a willful misrepresentation within the meaning of section 10 of the Displaced Persons Act of 1948, as amended, for the purpose of gaining admission into the United States as an eligible displaced person, or to have made a material misrepresentation within the meaning of section 11(e) of the Refugee Relief Act of 1953, as amended, for the purpose of gaining admission into the United States as an alien eligible thereunder, shall be considered ineligible under the provisions of INA 212(a)(19).

(iii) Waiver of ineligibility—INA 212(i). If an alien applying for an immigrant visa is ineligible under INA 212(a)(19) but qualifies to seek the benefits of INA 212(i), the consular officer shall advise 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(i).

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(20) Immigrant documentary quirements. INA 212(a)(20) is not applicable at time of visa application. (For waiver of documentary requirements for immigrants see 22 CFR 42.1 and 42.2.)

(21) Noncompliance with INA 203. INA 212(a)(21) is not applicable at time of visa application.

(22) Alien who is ineligible for U.S. citizenship or who departed to avoid service in the Armed Forces-(i) Applicability to nonimmigrants. An alien is ineligible for a nonimmigrant visa under INA 212(a)(22) only if, having had at the time other than nonimmigrant status, the alien departed from or remained outside the United States between September 8, 1939 and September 24, 1978 to avoid or evade training or service in the U.S. Armed Forces.

(ii) Applicability to immigrants. An alien shall be ineligible to receive an immigrant visa under INA 212(a)(22) if the alien either is ineligible to citizenship or departed from or remained outside the United States between

September 8, 1939 and September 24, 1978, to avoid or evade training or service in the United States Armed Forces.

(23) Controlled substance violators— (i) Date of conviction not pertinent. An alien shall be ineligible under INA 212(a)(23) irrespective of whether the conviction for a violation of or for conspiracy to violate any law or regulation relating to a controlled substance, as defined in the Controlled Substance Act (21 U.S.C. 802), occurred before, on, or after October 27, 1986.

(ii) Waiver under INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(23) for possession of 30 grams or less of marijuana 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).

(24) (INA 212(a)(24) was repealed by the Act of November 14, 1986 (Pub. L. 99-653) [Reserved].)

(25) Illiterates. INA 212(a)(25) is not applicable to nonimmigrants or the following classes or immigrants:

(i) Permanent residents. An alien who has been lawfully admitted for permanent residence and is returning from a temporary visit abroad;

(ii) Certain children. An alien who is not over 16 years of age;

(iii) Persons physically incapacitated. An alien who is physically incapable of reading;

(iv) Certain relatives. An alien who is the parent, grandparent, spouse, son or daughter of an alien independently eligible to receive a visa, or of an alien lawfully admitted for permanent residence, or of a U.S. citizen, if accompanying such eligible alien or accompanying or coming to join such citizen or lawfully admitted alien in the United States; or

(v) Certain persecutees. An alien who seeks admission to the United States to avoid religious persecution in the country of the alien's last permanent residence whether such persecution is evidenced by overt acts or by laws or

governmental regulations that discriminate against the alien or any group to which the alien belongs because of religious faith.

(26) Nonimmigrant documentary requirements. A passport which is valid indefinitely for the return of the bearer to the country whose government issued such passport shall be deemed to have the required minimum period of validity as specified in INA 212(a)(26).

(27) Prejudicial activity. [Reserved] (28) Affiliates and members of proscribed organizations—(i) Definition of "affiliate". The term "affiliate," as used in INA 212(a)(28)(C) and (I), means an organization which is related to, or identified with, a proscribed association or party, including any section, subsidiary, branch, or subdivision thereof, in such close association as to evidence an adherence to or a furtherance of the purposes and objectives of such association or party, or as to indicate a working alliance to bring to fruition the purposes and objectives of the proscribed association or party. An organization which gives, loans, or promises support, money, or other thing of value for any purpose to any proscribed association or party is presumed to be an "affiliate" of such association or party, but nothing contained in this paragraph shall be construed as an exclusive definition of the term "affiliate."

(ii) Service in Armed Forces. Service, whether voluntary or not, in the armed forces of any country shall not be regarded, of itself, as constituting or establishing an alien's membership in, or affiliation with, any proscribed party or organization, and shall not, of itself, constitute a ground of ineligibility to receive a visa.

(iii) Voluntary service in a political capacity. Voluntary service in a political capacity shall constitute affiliation with the political party or organization in power at the time of such service.

(iv) Voluntary membership after age 16. If an alien continues or continued membership in or affiliation with a proscribed organization on or after reaching 16 years of age, only the alien's activities after reaching that age shall be pertinent to a determina

tion of whether the continuation membership or affiliation is or w voluntary.

(v) "Operation of law” defined. T term "operation of law", as used INA 212(a)(28)(I)(i), includes any ca wherein the alien automatically, ar without personal acquiescence, becan a member of or affiliated with a pr scribed party or organization by off cial act, proclamation, order, edict, decree.

(vi) Membership in organization a vocating totalitarian dictatorship? U.S. In accordance with the definitio of "totalitarian party" contained i INA 101(a)(37), a former or presen voluntary member of, or an alien wh was, or is, voluntarily affiliated with noncommunist party, organization, o group, or of any section, subsidiary branch, affiliate or subdivision there of, which during the time of its exist ence did not or does not advocate the establishment in the United States of a totalitarian dictatorship, is not con sidered ineligible under 212(a)(28)(C) to receive a visa, unless the alien is known or believed by the consular officer to advocate, or to have advocated, personally, the estab lishment in the United States of a totalitarian dictatorship within meaning of INA 212(a)(28)(D).

INA

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(vii) “Actively opposed” explained. The words "actively opposed," as used in INA 212(a)(28)(I)(ii), shall be considered as embracing speeches, writings, and other overt or covert activities in opposition to the doctrine, program, principles, and ideology of the party or organization, or the section, subsidiary, branch, or affiliate or subdivision thereof, of which the alien was formerly a voluntary member.

(29) Espionage, sabotage, or other subversive activities. [Reserved]

(30) Alien accompanying excludable alien. INA 212(a)(30) is not applicable at time of visa application.

(31) Alien who aided illegal entrant. [Reserved]

(32) Foreign medical graduates. INA 212(a)(32) is not applicable to nonimmigrant aliens and is applicable only to immigrant aliens in the classes described in INA 203(a) (3), (6), and (7) (other than those who come within

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 proceed with the issuance of a nonimmigrant visa to the alien, subject to the conditions, if any, imposed by the Attorney General.