[Dept. Reg. 108.411, 24 F.R. 6679, Aug. 18, 1959, as amended by Dept. Reg. 108.422, 24 F.R. 11080, Dec. 31, 1959; Dept. Reg. 108.433, 25 F.R. 4577, May 25, 1960; Dept. Reg. 108.441, 25 F.R. 7018, July 23, 1960; Dept. Reg. 108.469, 26 F.R. 6441, July 18, 1961; Dept. Reg. 108.488, 28 F.R. 274, Jan. 10, 1963; Dept. Reg. 108.504, 29 F.R. 2782, Feb. 28, 1964]

DOCUMENTATION OF NATIONALS, CLAIMANT NATIONALS, AND FORMER NATIONALS

§ 41.3

Nationals, claimant nationals, and former nationals of the United States.

(a) A national of the United States shall not be issued a visa or other documentation as an alien for entry into the United States.

(b) A person whose case fulfills the conditions of section 360 (b) of the Act and who continues to claim that he is a national of the United States may apply for a certificate of identity as provided in section 360 (b) of the Act.

(c) A former national of the United States who seeks to enter the United States shall be required to comply with the documentary requirements applicable to aliens under the Act.

[Dept. Reg. 108.411, 24 F.R. 6680, Aug. 18, 1959]

PASSPORTS AND VISAS NOT REQUIRED FOR

CERTAIN NONIMMIGRANTS

§ 41.5 Nonimmigrants exempted by law or treaty from the requirement of passports, visas, and border-crossing identification cards.

The provisions of section 212(a) (26) of the Act relating to the requirement of passports, visas, and border-crossing identification cards for nonimmigrants do not apply in the cases of aliens who fall within any of the following described categories:

(a) Alien members of United States Armed Forces. An alien member of the armed forces of the United States who (1) is in the uniform of, or who bears documents identifying him as a member of, such armed forces, (2) has not been lawfully admitted for permanent residence, and (3) is making application for admission to the United States under official orders or permit of such armed forces. (Sec. 284, 66 Stat. 232; 8 U.S.C. 1354.)

(b) American Indians born in Canada. An American Indian born in Canada,

having at least fifty 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 Virgin Islands. An alien who shall leave Guam, Puerto Rico, or the Virgin Islands of the United States, and who seeks 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 entering under NATO Status of Forces Agreement. Personnel belonging to the land, sea or air 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 the provisions of Article III of such Agreement pursuant to an individual or collective movement order issued by an appropriate agency of the sending State or of the North Atlantic Treaty Organization. (TIAS 2846; 4 U.S.T. 1792.)

(e) Armed Services personnel attached to NATO Allied Headquarters in the United States. Personnel attached to an Allied Headquarters in the United States set up pursuant to the North Atlantic Treaty signed in Washington, D.C., on April 4. 1949 who belong to the land, sea or air armed services of a government which is a Party to the North Atlantic Treaty, and who are 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. 877.)

(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.)

[Dept. Reg. 108.411, 24 F.R. 6680, Aug. 18, 1959, as amended by Dept. Reg. 108.433, 25 F.R. 4577, May 25, 1960]

§ 41.6

Nonimmigrants not required to present passports, visas, or bordercrossing identification cards.

The provisions of section 212(a) (26) of the Act relating to the requirements of valid passports and visas for nonimmigrants are waived by the Secretary of State and the Attorney General, acting jointly, in pursuance of the authority contained in section 212 (d) (4) of the Act under the conditions specified for the following classes:

(a) Canadian nationals, and aliens having a common nationality with nationals of Canada or with British subjects in Bermuda. A visa shall not in any case be required of a Canadian national, and a passport shall not be required of such a national except after a visit outside of the Western Hemisphere. A visa shall not be required of an alien having a common nationality with Canadian nationals or with British subjects in Bermuda, who has his residence in Canada or Bermuda, and a passport shall not be required of such an alien except after a visit outside of the Western Hemisphere. A British subject who has his residence in the Bahamas shall require a passport and a visa for admission to the United States except that a visa shall not be required of such an alien who, prior to or at the time of embarkation for the United States on a vessel or aircraft, satisfies the examining United States immigration officer at Nassau, Bahamas, that he is clearly and beyond a doubt entitled to admission in all other respects. A visa shall not be required of a British subject who has his residence in, and arrives directly from, the Cayman Islands and who presents a certificate from the Clerk of Court of the Cayman Islands stating what, if anything, the Court's criminal records show concerning such subject, and a certificate from the Office of Administrator of the Cayman Islands stating what, if anything. its records show with respect to such subject's political associations or affiliations.

(b) British, French, and Netherlands nationals, and nationals of certain adjacent islands of the Caribbean which are independent countries. A visa shall not be required of a British, French, or Netherlands national or of a national of Jamaica, Trinidad and Tobago, or Barbados, who has his residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or in Jamaica, Trinidad and Tobago, or Barbados, and who is proceeding to Puerto Rico or the Virgin Islands of the United States, or who is proceeding to the United States as an agricultural worker.

(c) Mexican nationals. A visa and a passport shall not be required of a Mexican national who is a military or civilian official or employee of the Mexican national, state, or municipal government, or of a member of the family of any such official or employee; or is in possession of a border crossing card on Form I-186 and is applying for admission as a temporary visitor for business or pleasure from contiguous territory; or is entering solely for the purpose of applying for a Mexican passport or other official Mexican document at a Mexican consular office on the U.S. side of the border. A visa shall not be required of a Mexican national who is in possesion of a border crossing card and is applying for admission to the United States as a temporary visitor for business or pleasure from other than contiguous territory nor of a Mexican national who is a crewman employed on an aircraft belonging to a Mexican company authorized to engage in commercial transportation into the United States.

(d) Natives and residents of the Trust Territory of the Pacific Islands. A visa and a passport shall not be 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.

(e) Aliens in immediate transit—(1) Aliens in bonded transit. A passport and visa are not required of an alien who is being transported in immediate and continuous transit through the United

States in accordance with the terms of an agreement entered into between the transportation line and the Immigration and Naturalization Service under the provisions of section 238(d) of the Act on Form I-426 to insure such immediate and continuous transit through and departure from, the United States en route to a specifically designated foreign country, provided that such alien is in possession of a travel document or documents establishing his identity and nationality and ability to enter some country other than the United States. This waiver of visa and passport requirements is not available to an alien who is a citizen of Cuba, North Korea ("Democratic Peoples' Republic of Korea"), North VietNam ("Democratic Republic of VietNam"), or the Soviet Zone of Germany ("German Democratic Republic"), and is a resident of one of the said countries, and is, on a basis of reciprocity, available to a national of Albania, Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Mongolian People's Republic, People's Republic of China, Poland, Romania, or the Union of Soviet Socialist Republics resident in one of said 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 I-426 on a direct through flight which will depart directly to a foreign place from the port of arrival.

(2) Foreign government officials in transit. If an alien is of the class described in section 212(d) (8) of the Act only a valid unexpired visa and a travel document which is valid for entry into a foreign country for at least 30 days from the date of his application for admission into the United States shall be required.

(f) Individual cases of unforeseen emergencies. A visa and a passport shall not be required of a nonimmigrant who, either prior to his embarkation at a foreign port or place or at the time of arrival at a port of entry in the United States, satisfies the district director of the Immigration and Naturalization Service in charge of the port of entry, after consultation with and concurrence

by the Director of the Visa Office of the Department, that, because of an unforeseen emergency, he was unable to obtain the required documents. Any waiver of the visa requirement heretofore or hereafter granted pursuant to section 212(d) (4) (A) of the Act in the case of a national or resident of Cuba who embarks for the United States on or after November 16, 1963, shall not be valid unless such national or resident proceeds directly from Cuba to the United States and has been inspected in Cuba by officials of the United States Immigration and Naturalization Service and of the United States Public Health Service immediately prior to his departure for the United States, irrespective of whether such national or resident had prior notice of these conditions.

(g) Fiance or fiancee of a United States citizen. Notwithstanding the provisions of paragraphs (a), (b), (c), and (d) of this section, a visa shall be required of an alien described in such paragraphs who is classified, or who seeks classification, under section 101(a) (15) (K) of the Act.

(Sec. 101, 84 Stat. 116; 8 U.S.C. 1101) [Dept. Reg. 108.411, 24 F.R. 6680, Aug. 18, 1959, as amended by Dept. Reg. 108.479, 27 F.R. 2362, Mar. 13, 1962; Dept. Reg. 108.501, 28 F.R. 12217, Nov. 16, 1963; Dept. Reg. 108.526, 30 F.R. 14782, Nov. 30, 1965; Dept. Reg. 108.542, 31 F.R. 14674, Nov. 18, 1966; Dept. Reg. 108.557, 32 F.R. 7770, May 27, 1967; Dept. Reg. 108.561, 32 F.R. 8711, June 17, 1967; Dept. Reg. 108.581, 33 F.R. 5037, Mar. 27, 1968; Dept. Reg. 108.619, 35 F.R. 7554, May 15, 1970; Dept. Reg. 108.648, 36 F.R. 22153, Nov. 20, 1971]

§ 41.7

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

The provisions of section 212(a)(26) of the Act prescribing the documentary requirements for nonimmigrants may be waived by joint action of consular officers abroad and immigration officers pursuant to the authority contained in section 212(d) (4) of the Act in individual cases of aliens who satisfy the consular officer serving the port or place of embarkation, after consultation with and concurrence by the appropriate immigration officer, that their cases come within any of the following categories:

(a) An alien having his residence in foreign contiguous territory who does not qualify for the benefits of any waiver provided in § 41.6, and who is a member of a visiting group or excursion proceeding to the United States under circumstances which make the timely procurement of a passport and visa impracticable.

(b) Passport waiver; aliens for whom passport extension facilities are unavailable. An alien whose passport is not valid for the period prescribed in section 212(a)(26) of the Act and who is embarking for the United States at a port or place remote from any foreign diplomatic or consular establishment at which the passport could be revalidated.

(c) Passport waiver; aliens precluded from obtaining passport extensions by foreign government restrictions. An alien whose passport is not valid for the period prescribed in section 212(a)(26) of the Act and whose government as a matter of policy does not revalidate passports more than six months in advance of their expiration or until they actually expire.

(d) Visa waiver; certain aliens proceeding to the United States under emergent circumstances. An alien who is well and favorably known at the consular office, who has previously been issued a nonimmigrant visa which has since expired, and who is embarking on a direct journey to the United States under emergent circumstances which preclude the timely issuance of a visa.

(e) Visa and passport waiver; members of armed forces of foreign countries making friendly visits to the United States. An alien who is on active duty as a member of the armed forces of a foreign country and who is a member of a group of such force which is making a friendly call in the United States, whether courtesy or operational and whether in behalf of his own government or in behalf of the United Nations, under advance arrangements made with the military, naval, or air force authorities of the United States, other than an alien who is a citizen or resident of Albania, Bulgaria, Communist-controlled China ("Chinese People's Republic"), Cuba,

Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, North Korea ("Democratic People's Republic of Korea"), North Viet-Nam ("Democratic Republic of Viet-Nam”), Outer Mongolia ("Mongolian People's Republic"), Poland, Rumania, the Soviet Zone of Germany ("German Democratic Republic"), or the Union of Soviet Socalist Republics.

(f) Passport waiver; landed immigrants in Canada. An alien applying for a visa at a consular office in Canada (1) who is a landed immigrant in Canada, (2) whose port and date of expected arrival in the United States are known, and (3) who is proceeding to the United States under emergent circumstances which preclude the timely procurement of a passport or Canadian certificate of identity.

(g) Visa and/or passport waiver; authorization to individual consular offices. An alien within the district of a consular office which has been individually authorized by the Department, because of unusual circumstances prevailing in that district, to join with immigration officers abroad in waivers of documentary requirements in specifically described categories of cases, and whose case falls within one of those categories.

[Dept. Reg. 108.416, 24 F.R. 8548, Oct. 22, 1959, as amended by Dept. Reg. 108.422, 24 F.R. 11030, Dec. 31, 1959; Dept. Reg. 108.433, 25 F.R. 4578, May 25, 1960; Dept. Reg. 108.441, 25 F.R. 7018, July 23, 1960; Dept. Reg. 108.494, 28 F.R. 5258, May 28, 1963]

CLASSIFICATION OF NONIMMIGRANTS

§ 41.10 Presumption of immigrant status and burden of proof.

An applicant for a nonimmigrant visa shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer that he is entitled to a nonimmigrant status described in section 101(a) (15) of the Act or otherwise established by law or treaty. The burden of proof is upon the applicant to establish that he is entitled to the nonimmigrant classification and type of nonimmigrant visa for which he is an applicant.

(Secs. 214, 291, 66 Stat. 189, 234; 8 U.S.C. 1184, 1361) [Dept. Reg. 108.422, 24 F.R. 11080, Dec. 31, 19591