may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal has not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.

(c) Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.

(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.

(a) Grounds for revocation. Consul officers are authorized to revoke immigrant visa under the followi circumstances:

(1) The consular officer knows, after investigation is satisfied, that th visa was procured by fraud, a willful false or misleading representation, t willful concealment of a material fa or other unlawful means;

(2) The consular officer obtains i formation establishing that the alie was otherwise ineligible to receive th particular visa at the time it w issued; or

(3) The consular officer obtains i formation establishing that, subs quent to the issuance of the visa, ground of ineligibility has arisen the alien's case.

(b) Notice of proposed revocatio The bearer of an immigrant vis which is being considered for revoc: tion shall, if practicable, be notified ‹ the proposed action, given an opport nity to show cause why the visa shoul not be revoked, and requested t present the visa to the consular offic indicated in the notification of pro posed cancellation.

(c) Procedure in revoking visas. A immigrant visa which is revoked shal be canceled by writing the word "RE VOKED" plainly across the face o the visa. The cancellation shall b dated and signed by the consular offi cer taking the action. The failure of an alien to present the visa for cancel lation does not affect the validity of any action taken to revoke it.

(d) Notice to carriers. Notice of revo cation of a visa shall be given to the master, commanding officer, agent, owner, charterer, or consignee of the carrier or transportation line on which it is believed the alien intends to travel to the United States, unless the visa has been canceled as provided in paragraph (c) of this section.

(e) Notice to Department. The consular officer shall promptly submit notice of the revocation, including a full report of the facts in the case, to the Department for transmission to the INS. A report is not required if the

visa has been physically canceled prior to the alien's departure for the United States.

(f) Record of action. Upon the revocation of an immigrant visa, the consular officer shall make appropriate notation for the post file of the action taken, including a statement of the reasons therefor, and if the revocation of the visa is effected at other than the issuing office, a report of the action taken shall be sent to that office.

(g) Reconsideration of revocation. (1) The consular officer shall consider any evidence submitted by the alien or the alien's attorney or representative in connection with a request that the revocation of the visa be reconsidered. If the officer finds that the evidence is sufficient to overcome the basis for the revocation, a new visa shall be issued. A memorandum regarding the action taken and the reasons therefore shall be placed in the consular files and appropriate notification made promptly to the carriers concerned, the Department, and the issuing office if notice of revocation has been given in accordance with paragraphs (d), (e), and (f) of this section.

(2) In view of the provisions of § 42.71(b) providing for the refund of fees when the visa has not been used as a result of action by the U.S. Government, no fees shall be collected in connection with the application for or issuance of such a reinstated visa.

§ 42.83 Termination of registration.

(a) Termination following failure of applicant to apply for visa. In accordance with INA 203(e), an alien's registration for an immigrant visa shall be terminated if, within one year following the scheduling of an appointment for final interview, the applicant fails to apply for an immigrant visa.

(b) Termination following visa refusal. An alien's registration for an immigrant visa shall be terminated if, within one year following the refusal of the immigrant visa application under INA 221(g), the alien has failed to present to a consular officer evidence purporting to overcome the basis for refusal.

(c) Notice of termination. Upon the termination of registration under

paragraph (a) or (b) of this section, the consular officer at the post where the alien is registered shall notify the alien of the termination. The consular officer shall also inform the alien of the right to have the registration reinstated if the alien, before the end of the second year after the missed appointment date if paragraph (a) applies, and before the end of the second year after the INA 221(g) refusal if paragraph (b) applies, establishes to the satisfaction of the consular officer that the failure to apply for an immigrant visa or to present evidence purporting to overcome the ineligibility under INA 221(g) was due to circumstances beyond the alien's control.

(d) Reinstatement of registration. If the consular officer is satisfied that an alien, as provided for in paragraph (c) of this section, has established that failure to apply as scheduled for an immigrant visa or to present evidence purporting to overcome ineligibility under INA 221(g) was due to circumstances beyond the alien's control, the consular officer shall reinstate the alien's registration for an immigrant visa. Any petition approved under INA 204(b) which had been automatically revoked as a result of the termination of registration shall be considered to be automatically reinstated if the registration is reinstated.

(e) Interpretation of "circumstances beyond alien's control". For the purpose of this section, the term "circumstances beyond the alien's control" includes, but is not limited to, an illness or other physical disability preventing the alien from traveling, a refusal by the authorities of the country of an alien's residence to grant the alien permission to depart as an immigrant, and foreign military service.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988]

PART 43-VISAS: DOCUMENTATION OF IMMIGRANTS UNDER SECTION 314 OF PUB. L. 99–603

Sec.

43.1 General. 43.2

Definition.

43.3 Registration of applicants and priority

date.

The following definition shall be applicable to this part: "Adversely affected country" means a foreign state whose average annual rate of immigration to the United States during the period from July 1, 1966, to September 30, 1985, was less than its average annual rate of immigration to the United States during the period from July 1, 1953, to June 30, 1965. A foreign state's average annual rate of immigration to the United States during the periods described in the preceding sentence shall be determined by totaling the number of natives of the foreign state who were admitted to the United States for permanent residence, as reported in the Annual Reports of the Immigration and Naturalization Service, for each such period and dividing each total by the number of fiscal years in the period. For the purposes of this definition a colony or component or dependent area of a foreign state overseas from such foreign state shall be treated as a separate foreign state.

§ 43.3 Registration of applicants and priority date.

(a) Limitations on registration. An alien shall not be eligible to register under this section unless he is a native of an adversely affected country as defined in § 43.2 of this part. Applications for registration will be accepted only from 12:01 a.m. January 21, 1987,

until Midnight January 27, 1987. Aj plications received before January 2 or after January 27 will not be consi ered. If the Department thereafter de termines that it is necessary to esta lish a further period for registration i order to ensure that the number qualified applicants is sufficient permit allocation of all immigrant visz numbers authorized by section 314 ( Pub. L. 99-603, the Department will s provide by Public Notice in the FEDE AL REGISTER.

(b) Place of registration. Every alie who is a native of an adversely affec ed country who desires to register a an applicant for a visa under sectic 314 of Pub. L. 99-603 shall apply fo registration by mail to: NP-5, P.O. Bo 96097, Washington, DC 20090-609 U.S.A. Hand-delivered application telegrams, envelopes sent by regi tered mail, Federal Express, USP Certified Mail or other courier service will not be accepted. Only one applic tion may be submitted in each env lope and, in the event an envelope co tains two or more applications, onl the first application removed fro that envelope will be accepted an processed.

(c) Application for registration. A applicant for registration under thi section shall apply for registration b submitting the following information. (1) Name;

(2) Date of birth;

(3) Place of birth (including city an county, province or other political sub division, and country);

(4) Name(s), date(s) and place(s) o birth of spouse and child(ren), if any (5) Mailing address; and

(6) Location of consular office near est to current residence or, if in the United States, nearest to last foreign residence prior to entry into the U.S.

(d) Derivative registration. An application for registration submitted in accordance with paragraphs (a) and (b) of this section shall be considered to include automatically the spouse or child of the applicant, whether or not such spouse or child is named in the application if, in case of a spouse, the marriage to the applicant took place prior to the applicant's admission to the United States for permanent residence or, in the case of a child, the

child is the issue of a marriage which took place prior to the applicant's admission to the United States for permanent residence.

(e) Priority date. An alien's priority date for consideration of his application under this part shall be the date, hour and minute (within the registration period or periods provided for in paragraph (a) of this section) of the receipt and processing of the application by the Visa Office of the Department of State.

[52 FR 1450, Jan. 14, 1987 (interim rule) and 52 FR 17948, May 13, 1987 (final rule), as amended at 52 FR 17949, May 13, 1987]

§ 43.4 Control of numerical limitation.

(a) Centralized control. Centralized control of the numerical limitation specified in section 314(a) of Pub. L. 99-603, as amended, is established in the Department. In order to effect this control the Department shall limit the number of immigrant visas and the number of adjustments of status that may be granted to aliens applying under section 314 of Pub. L. 99-603, as amended, to (1) a number not to exceed 5,000 each in fiscal years 1987 and 1988 and not to exceed, in any month of either such fiscal year, 500 plus any balance remaining from authorizations for preceding months in the same fiscal year; and (2) a number not to exceed 15,000 each in fiscal years 1989 and 1990 and not to exceed, in any month of either such fiscal year, 1,500 plus any balance remaining from authorizations for preceding months in the same fiscal year. (b) Limitation for individual adversely affected country. Within the limitations specified in subsection (a) of this section, there shall be a numerical limitation on the issuance of immigrant visas and the granting of adjustment of status to natives of any individual adversely affected country. For fiscal years 1987 and 1988 the numerical limitation for any individual adversely affected country shall be the difference between its average annual rate of immigration during the period from July 1, 1953, to June 30, 1965, and its average annual rate of immigration during the period from July 1, 1966, to September 30, 1985, or 5,000, whichever is the lesser. For fiscal

years 1989 and 1990 the numerical limitation for any individual adversely affected country shall be three times the difference between its average annual rate of immigration during the period from July 1, 1953, to June 30, 1965, and its average annual rate of immigration during the period from July 1, 1966, to September 30, 1985, or 15,000, whichever is the lesser.

(c) Allocation of immigrant visa numbers. Within the numerical limitations specified in paragraphs (a) and (b) of this section and based on the chronological order of priority dates of applicants as established as specified in § 43.3(e) of this part, the Department shall allocate immigrant visa numbers for use in connection with the issuance of immigrant visas and the granting of adjustment of status.

[52 FR 1450, Jan. 14, 1987 (interim rule) and 52 FR 17948, May 13, 1987 (final rule); 53 FR 49980, Dec. 13, 1988]

amended, and of Parts 40 and 42 of this chapter shall apply to application for, consideration of, and issuance or refusal of, immigrant visas under section 3 of Pub. L. 100-658.

§ 44.2 Definitions.

The following definitions shall be applicable to this Part:

(a) "Petition" shall mean any typewritten document using the Roman alphabet and containing the name of the alien, the alien's date and place of birth, the alien's current mailing address, the location of the consular office nearest to the alien's residence abroad or, if the alien is in the United States, to the alien's last residence abroad prior to entry into the United States, and the name, date and place of birth of the alien's spouse and child or children (if any), to which shall be affixed a photograph of the alien 1 & 1⁄2 inches-3.8 cm-square showing a recent full-face likeness against a light background (black and white or color), as well as a separate photograph of a spouse and each child, if any.

(b) "Under-represented country" shall mean any foreign state, as defined in section 101(a)(14) of the Immigration and Nationality Act, as amended, natives of which used less than 5,000 immigrant visa numbers under INA 203(a) during Fiscal Year 1988. Immigrant visa numbers used by aliens under section 314 of Pub. L. 99– 603 during Fiscal Year 1988 shall not be counted for this purpose. Usage of immigrant visa numbers by foreign states shall be determined from the records of the Visa Office of the Department of State. For the purposes of this Part, a dependent area, as defined in 22 CFR 40.1(f), shall be considered to be a part of its governing foreign state.

§ 44.3 Registration of applicants.

(a) Limitations on registration. An alien shall not be eligible to register under this section unless the alien is a native of an under-represented country as defined in § 44.2(b) of this Part. All foreign states and dependent areas for immigration purposes are underrepresented except the followingChina-mainland born, China-Taiwan born, Colombia, the Dominican Re

public, El Salvador, the United Ki dom (including the dependent areas Anguilla, Bermuda, British Virgin lands, Cayman Islands, Falkland lands, Gibraltar, Hong Kong, Monts rat, Pitcairn, St. Helena, and Tu and Caicos Islands), Guyana, Ha India, Jamaica, Korea, Mexico, a the Phillippines. Petitions from ali seeking to register will be accep only from March 1, 1989 until Ma 31, 1989. Applications received bef or after those dates will not be cons ered. If the Department thereafter termines that it is necessary to est lish a further period for registration order to ensure that the number qualified applicants is sufficient permit allocation of all immigrant v numbers authorized by section 3 Pub. L. 100-658, the Department v so provide by Public Notice in the F eral Register.

(b) Place of registration. An ali who is a native of an under-represe ed country who desires to register an applicant for a visa under sectior of Pub. L. 100-658 shall submit a pe tion in a separate envelope by mail 1 OP-1, P.O. Box 20199, Washingto D.C., 20199-9998. The envelope us for mailing the application must not larger than 9 & 1⁄2 by 4 & 1⁄2 inch (approximately 24 cm by 11 cm) ar not smaller than 6 by 3 & 1⁄2 inch (approximately 15 cm by 9 cm) in siz Petitions shall not be accepted for th purpose by any means other than t mail nor at any address other than th one specified in the preceding se tence. All petitions shall be submitte by regular domestic or internationa surface or airmail. Petitions submitte by any means requiring any form written acknowledgement or confirma tion of receipt will not be given consid eration. All envelopes submitted fo this purpose shall bear on the outsid thereof, clearly typewritten and in th Roman alphabet, the name and cu rent mailing address of the applican as they are typed on the petition con tained therein.

(c) Derivative registration. A peti tion submitted in accordance with § 44.3 (a) and (b) shall be considered t include automatically the spouse of child of the applicant, whether or no such spouse or child is named in the