court for the commission of two or more offenses regardless of the period of confinement imposed by the sentence provided the alien was under the age of eighteen years at the time the offenses were committed. An alien convicted as an adult of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more shall be subject to the provisions of section 212(a)(10) of the Act regardless of whether juvenile courts existed within the jurisdiction at the time of the conviction and regardless of whether he was under the age of eighteen years at the time the offenses were committed.

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

(iv) An alien shall not be considered ineligible to receive a visa under section 212(a) (10) of the Act by reason of having been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more if a full and unconditional pardon or pardons for the offenses have 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 section 212(a) (10) of the Act.

(v) The term "purely political offense", as used in section 212(a) (10) of the Act, shall include offenses which resulted in convictions obviously based on trumped-up charges or predicated upon repressive measures against racial, religious or political minorities.

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

(11) Polygamy. An alien who is a member of a religious organization which tolerates polygamy is not ineligible to receive an immigrant visa under the provisions of section 212(a) (11) of the Act, unless such alien is a polyg

amist, or unless he practices or advocates the practice of polygamy.

(12) Prostitution, procuring and related activities. (1) The term "prostitute" means a woman 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 which would indicate 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) The fact that an alien may have ceased to engage in prostitution shall not serve to remove the existing ground of ineligibility to receive a visa under the provisions of section 212(a)(12) of the Act.

(iii) A prostitute or a person who has engaged in prostitution shall be ineligible to receive a visa under section 212(a) (12) of the Act notwithstanding the fact that prostitution may not be prohibited under the laws of the foreign country where the acts occurred.

(iv) An alien who is ineligible to receive a visa under section 212(a) (12) of the Act but who qualifies for the benefits of section 212 (h) of the Act shall be advised of the procedure for applying to the Immigration and Naturalization Service for relief under that provision of law. A visa shall not be issued to such an alien until the consular officer has received notification from the Immigration and Naturalization Service of the approval of the alien's application for the benefits of section 212(h) of the Act.

(13) Immoral sexual act. An alien shall not be ineligible to receive a visa under section 212(a) (13) of the Act unless his primary purpose in coming to the United States is to engage in an immoral sexual act.

(14) Aliens entering to perform skilled or unskilled labor. (i) An alien within one of the class specified in the subparagraph who is seeking to enter the United States for the purpose of engaging in gainful employment shall be ineligible to receive a visa under the provisions of section 212(a) (14) of the Act unless the Secretary of Labor shall have certified to the Attorney General and the Secretary of State, or to a consular officer for the Secretary of State, that (a) there are not sufficient workers in the United States who are able, willing, qualified and available at the time of

application for a visa and admission to the United States 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. The provisions of section 212(a) (14) shall apply only to the following classes of aliens: (a) Aliens who are preference immigrants described in section 203 (a) (3) or (6); (b) aliens who are nonpreference immigrants as described in section 203 (a) (8), and (c) aliens who are special immigrants under section 101 (a) (27) (A) of the Act (except the parents, spouses, or children of U.S. citizens or of aliens lawfully admitted for permanent residence).

(ii) The following persons are not considered to be within the purview of section 212(a)(14) and do not require a labor certification: (a) An alien who establishes to the satisfaction of the consular officer that he does not intend to seek employment in the United States; (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 who does not require such a certification; (c) a woman applicant who intends to marry a U.S. citizen or alien resident and who does not intend to seek employment in the United States and whose U.S. citizen or alien resident fiancé has guaranteed her support; (d) a person who is seeking to enter the United States for the purpose of engaging in a commercial or agricultural enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital; (e) a member of the Armed Forces of the United States; (f) a person coming to the United States solely for the purpose of study who has been accepted by an institution of learning in the United States and who will be pursuing a full course of study in the United States for at least two full consecutive academic years, if the alien has sufficient financial resources to support himself during the period of proposed study in the United States and will not seek employment during that period. If it will be necessary for the spouse of such a student to accept employment in the United States, the spouse must obtain a labor certification, notwithstanding the provisions of (b) of this subdivision.

(15) Public charge. (i) Any conclusion that an alien is ineligible to receive an immigrant visa under the provisions of section 213(a) (15) of the Act shall be predicated upon circumstances which indicate that the alien will probably become a charge upon the public after entry into the United States.

(ii) An alien within the purview of section 212 (a) (15) of the Act, who is otherwise eligible to receive a visa, may be issued an immigrant visa upon receipt of notice by the consular officer of the giving of a bond or undertaking, as provided in section 221(g) of the Act, if the consular officer is satisfied that the giving of such bond or undertaking removes the alien's ineligibility to receive a visa under this section of the law.

(16) Aliens excluded and deported. An alien who was excluded and deported from the United States within the meaning of section 212(a) (16) of the Act shall not be issued a visa within one year from the date of his deportation unless he has obtained permission from the Immigration and Naturalization Service to reapply for admission.

(17) Aliens arrested and deported or removed from the United States. An alien who was arrested and deported from the United States, or who was removed from the United States within the meaning of section 212(a) (17) of the Act shall be required to obtain permission from the Immigration and Naturalization Service to reapply for admission into the United States before a visa may be issued, regardless of the period of time which may have elapsed since his deportation or removal.

(18) Stowaways. (Section 212 (a) (18) of the Act inapplicable at time of visa application.)

(19) Fraud and misrepresentation. (1) An alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation for entry into the United States by fraud or by willfully misrepresenting a material fact, regardless of whether such fraud or misrepresentation occurred before or after December 24, 1952, shall be ineligible to receive a visa under the provisions of section 212 (a) (19) of the Act: Provided, That the provisions of this subdivision shall not be applicable if the fraud or misrepresentation was committed by an alien at the time he 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 his former homeland if he had disclosed the facts in his case in connection with his 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 his former residence or elsewhere in connection with an application for a visa.

(ii) Subject to the conditions stated in subdivision (i) of this subparagraph, 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 to receive a visa under the provisions of section 212(a) (19) of the Act.

(iii) The commission of fraud or the willful misrepresentation of a material fact in seeking to enter the United States as distinguished from fraud or misrepresentation in connection with the procurement, or attempt to procure, documents for entry, shall not render an alien ineligible to receive a visa under the provisions of section 212(a) (19) of the Act. (6 I. & N. Dec. 149, approved by the Attorney General 9-13-54)

(iv) An alien who is ineligible to receive a visa under section 212(a) (19) of the Act but who qualifies for the benefits of section 212(i) of the Act shall be advised of the procedure for applying to the Immigration and Naturalization Service for relief under that provision of law. A visa may not be issued to such an alien until the consular officer has received notification from the Immigration and Naturalization Service of the approval of the alien's application for the benefits of section 212(i) of the Act.

(20) Immigrant documentary requirements. (For waivers of documentary requirements for immigrants see §§ 42.5 and 42.6.)

(21) Noncompliance with section 203 of the Act. [Reserved]

(22) Aliens ineligible to citizenship or who departed to avoid service in the armed forces. An alien shall be refused

an immigrant visa under the provisions of section 212(a) (22) of the Act if, having other than nonimmigrant status, he departed from or remained outside of the United States on or after September 8, 1939, to avoid or evade training or service in the United States armed forces.

(23) Narcotics traffickers. An alien shall be ineligible to receive an immigrant visa under the provisions of section 212(a) (23) of the Act, as amended, irrespective of whether the conviction for illegal possession of narcotic drugs or marihuana or for conspiracy to violate any law or regulation within the contemplation of the Narcotic Control Act of 1956 occurred before or after July 18, 1956.

(24) Aliens arriving in foreign contiguous territory or adjacent islands on nonsignatory or noncomplying transportation lines. The provisions of section 212(a) (24) of the Act shall not be applicable to the following classes of immigrants:

(i) An alien who is described in section 101 (a) (27) (B) of the Act;

(ii) An alien who is a native-born citizen of a country referred to in section 101 (a) (27) (A) of the Act;

(iii) An alien who is a native of an adjacent island or foreign contiguous territory and who is seeking to enter the United States directly from an adjacent island, or from foreign contiguous territory;

(iv) An alien who proceeded to an adjacent island or foreign contiguous territory by nonsignatory carrier and who subsequently proceeded to Canada by signatory carrier and seeks to enter the United States from Canada, regardless of the method by which he first entered the adjacent island or foreign contiguous territory; or

(v) An alien who proceeded from the United States by a nonsignatory carrier to an adjacent island or foreign contiguous territory from which he seeks to reenter the United States, if, at the time of his last entry into the United States he would not have been ineligible to receive an immigrant visa under the provisions of section 212(a) (24) of the Act.

(25) Illiterates. (i) The provisions of section 212(a) (27) of the Act shall not be applicable to the following classes of immigrants: (a) An alien who has been lawfully admitted for permanent residence and who is returning from a temporary visit abroad; (b) An alien who is not over sixteen years of age; (c) An

alien who is physically incapable of reading; (d) An alien who is the parent, grandparent, spouse, son or daughter of an alien eligible to recive a visa, or of an alien lawfully admitted for permanent resident, or of a citizen of the United States, if accompanying such eligible alien or accompanying or coming to join such citizen or lawfully admitted alien in the United States; or (e) An alien who establishes that he seeks admission to the United States to avoid religious persecution in the country of his last permanent residence whether such persecution is evidenced by overt acts or by laws or governmental regulations that discriminate against him or any group to which he belongs because of his religious faith.

(ii) A son or daughter, regardless of age, who is a United States citizen, a lawful permanent resident of the United States, or an accompanying alien eligible to receive a visa, may confer upon his parent or grandparent the benefits of the exemptions from the literacy requirement stated in subdivision (i) (d) of this subparagraph.

(26) Nonimmigrant documentary requirements. (Section 212(a)(26) of the Act inapplicable.)

(27) Prejudicial activities. [Reserved]

(28) Members or affiliates of proscribed organizations. (i) The term "affiliate", as used in section 212(a) (28) (C) and (I) of the Act, shall mean 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 tor 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 shall be presumed to be an "affiliate" of such association or party, but nothing contained in this subdivision shall be construed as an exclusive definition of the term "affiliate."

(ii) 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 shall constitute affiliation with the political party or organization in power at the time of such service.

(iv) If an alien continues or continued his membership in or affiliation with a proscribed organization on or after reaching sixteen years of age, only his activities after reaching that age shall be pertinent to a determination whether the continuation of his membership or affiliation is or was voluntary.

(v) The term "operation of law", as used in section 212 (a) (28) (I) (i) of the Act, shall include any case wherein the alien without his acquiescence automatically became a member of or affiliated with a proscribed party or organization by official act, proclamation, order, edict, or decree.

(vi) In accordance with the definition of "totalitarian party” contained in section 101 (a) (37) of the Act, a former or present voluntary member of, or an alien who was, or is, voluntarily affiliated with a noncommunist party, organization, or group, or of any section, subsidiary, branch, affiliate or subdivision thereof, which during the time of its existence Idid not or does not advocate the establishment in the United States of a totalitarian dictatorship, shall not be considered ineligible under the provisions of section 212(a) (28) (C) of the Act to receive a visa, unless the alien is known or believed by the consular officer to advocate, or to have advocated, personally, the establishment in the United States of a totalitarian dictatorship, within the meaning of section 212(a) (28) (D) of the Act.

(vii) The words "actively opposed", as used in section 212(a) (28) (I) (ii) of the Act, 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. (Section 212(a) (30) of the Act inapplicable.)

(31) Alien aiding illegal entrant. [Reserved]

(b) Failure of application to comply with Act. (1) An alien's visa applica

tion shall be considered as failing to comply with the provisions of the Act or the regulations issued thereunder if:

(i) The applicant fails to furnish the information to be included in such application as required by the Act or the regulations contained in this part;

(li) The application contains a false or incorrect statement other than one which would constitute a ground of ineligibility under section 212(a) (9) or (19) of the Act;

(iii) The application is not supported by the documents required under the provisions of the Act or the regulations contained in this part;

(iv) The applicant refuses to be fingerprinted as required by the Act or the regulations contained in this part;

(v) The necessary fee is not paid for such application or for the issuance of the immigrant visa;

(vi) The alien fails to swear to, or affirm, the application before the consular officer; or

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

(2) The grounds of refusal described in subparagraph (1) of this paragraph shall not constitute a bar to the reconsideration of the application upon compliance with statutory or regulatory requirements, or to the consideration of a subsequent application submitted by the same applicant.

(c) Former exchange visitors. An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, who is within the purview of section 212(e) of the Immigration and Nationality Act as amended by the Act of April 7, 1970 (84 Stat. 116), shall not be eligible to apply for and receive an immigrant visa unless

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

(2) The foreign residence requirement of section 212(e) of the Act has been waived by the Attorney General in his behalf.

(d) Aliens entitled to A, E, or G nonimmigrant classification. An alien en

titled to nonimmigrant classification under section 101 (a) (15) (A), (E), or (G) of the Act who is applying for an immigrant visa and who intends to continue the activities required for such nonimmigrant classification in the United States, shall not be eligible to receive an immigrant visa until he has executed before the consular officer a written waiver of all rights, privileges, exemptions and immunities which would accrue to him by reason of such occupational status.

(Secs. 212, 214, 221, 247, 66 Stat. 182, as amended, 189, 192, as amended, 218; 8 U.S.C. 1182, 1184, 1201, 1257) [Dept. Reg. 108.429, 25 F.R. 3250, Apr. 15, 1960, as amended by Dept. Reg. 108.441, 25 F.R. 7021, July 23, 1960; Dept. Reg. 108.447, 25 F.R. 9244, Sept. 28, 1960; Dept. Reg. 108.469, 26 F.R. 6442, July 18, 1961; Dept Reg. 108.471, 26 F.R. 9549, Oct. 10, 1961; Dept. 108.528, 30 F.R. 14788, Nov. 30, 1965; Dept. Reg. 108.536, 31 F.R. 10316, July 30, 1966; Dept. Reg. 108.559, 32 F.R. 8409, June 13, 1967; Dept. Reg. 108.588, 33 F.R. 9398, June 27, 1968; Dept. Reg. 108.618, 35 F.R. 6125, Apr. 15, 1970]

RELIEF FOR CERTAIN INELIGIBLE ALIENS § 42.95 Relief for certain ineligible aliens.

(a) Exercise of discretion by the Attorney General under section 212(c) of the Act. The exercise by the Attorney General of his authority under section 212(c) of the Act to grant discretionary relief from certain grounds of ineligibility other than those described in section 212(a), (26), (27), (28), and (29) to certain returning resident aliens shall remove the alien's ineligibility to receive a visa only under the provisions specified in the Attorney General's order.

(b) Returning resident alien originally admitted under the Act of December 28, 1945. An alien admitted into the United States under section 1 of the Act of December 28, 1945 ("GI Brides Act") shall not be refused an immigrant visa after a temporary absence abroad solely because of a mental or physical defect or defects that existed at the time of the original admission.

(Sec. 3, 59 Stat. 659; 8 U.S.C. 234)

CROSS REFERENCE: For waiver of certain grounds of ineligibility under the provisions of section 212 (g), (h)( or (i) of the Act, as amended, see § 42.91 (a) (1-6), (9), (10), (12), and (19).

[Dept. Reg. 108.429, 25 F.R. 3253, Apr. 15, 1960, as amended by Dept. Reg. 108.528, 30 F.R. 14789, Nov. 30, 1965]