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(3) He is employed or will be employed by a foreign person or organization of the same nationality as the alien, and will be engaged in duties of a supervisory or executive character, or if he is or will be employed in a minor capacity, he has special qualifications which make his services essential to the efficient operations of the employer's enterprise. An alien employed solely in a manual capacity shall not be entitled to classification as a treaty trader.

(Sec. 291, 66 Stat. 234; 8 U. S. C. 1361)

§ 41.75 Treaty investors. (a) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (E) (ii) of the act shall be required to establish to the satisfaction of the consular officer that (1) he is entitled to enter the United States solely to develop and direct the operations of an enterprise in which he has invested, or in which he is actively in the process of investing, a substantial amount of capital, under and in pursuance of the specific provisions relating to treaty investors, negotiated after June 27, 1952 in a treaty of commerce and navigation between the United States and the foreign state of which the alien is a national, or that (2) he is the spouse or child of such an alien, and is accompanying or following to join him.

(b) The term "national", as used in this section, means a citizen or subject of a foreign country with which there is existing at the time of application for a visa a treaty of commerce and navigation as provided in paragraph (a) of this section.

(c) The nationality of a spouse or child of a treaty investor shall not be material to the classification of such spouse or child under the provisions of section 101 (a) (15) (E) (ii) of the act.

§ 41.76 Burden of proof and evidence of treaty-investor status. (a) An alien applying for a nonimmigrant visa as a treaty investor under the provisions of section 101 (a) (15) (E) (ii) of the act shall not only have the burden of establishing that he is entitled to classification as a treaty investor within the meaning of that section of the act, but also that he is not ineligible to receive a visa as a nonimmigrant under the provisions of section 212 of the act or any other provision of law, and § 41.17.

(b) An alien applying for a visa as a nonimmigrant under the provisions of

section 101 (a) (15) (E) (ii) of the act shall be required to present any evidence deemed necessary by the consular officer to establish that he is entitled to nonimmigrant classification under that section. Such alien shall establish specifically that:

(1) He seeks to enter the United States solely for the purpose of developing and directing the operations of an enterprise in the United States: (i) In which he has invested, or is actively in the process of investing, a substantial amount of capital; or (ii) in which his employer has invested, or is actively in the process of investing, a substantial amount of capital: Provided, That such employer is a foreign person or organization of the same nationality as the applicant and that the applicant is employed by such person or organization in a responsible capacity; or

(2) He seeks to enter the United States as the spouse or child of an alien described in subparagraph (1) of this paragraph; and

(3) He is not applying for a nonimmigrant visa in an effort to evade the quota or other restrictions which are applicable to immigrants;

(4) He intends in good faith, and will be able, to depart from the United States upon the termination of his status; and

(5) The enterprise is one which actually exists or is in active process of formation, and is not a fictitious paper operation.

STUDENTS

§ 41.80 Students. (a) An alien applying for a nonimmigrant visa as a student under the provisions of section 101 (a) (15) (F) of the act shall be required to establish to the satisfaction of the consular officer that he seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an established institution of learning or other recognized place of study in the United States, particularly designated by such alien, and approved by the Attorney General, and that he is otherwise eligible to receive a nonimmigrant visa as provided in § 41.81.

(b) Official students. An alien who has been selected by his government to study at an institution of learning or other place of study in the United States shall, if otherwise qualified, be classifiable as a nonimmigrant under the provisions of section 101 (a) (15) (F) of the act, re

gardless of whether the alien's expenses for his study in the United States will be borne by his government: Provided, That if such alien qualifies as an exchange visitor, he shall be classifiable under the symbol EX, or if such alien is accredited and accepted as a foreign-government official or employee under the provisions of section 101 (a) (15) (A) (ii) of the act, he shall be classifiable under the symbol A-2.

(c) Official trainees. An alien who has been selected by his government for training in the United States with an agricultural, commercial, financial, governmental, or other industrial establishment shall, if otherwise qualified, be classifiable as a nonimmigrant under the provisions of section 101 (a) (15) (H) (iii) of the act, regardless of whether the alien's expenses for his training in the United States will be borne by his government: Provided, That if such alien qualifies as an exchange visitor, he shall be classifiable under the symbol EX, or if such alien is accredited and accepted as a foreign-government official or employee under the provisions of section 101 (a) (15) (A) (ii) of the act, he shall be classifiable under the symbol A-2.

§ 41.81 Burden of proof and evidence of student status. (a) An alien applying for a visa as a nonimmigrant under the provisions of section 101 (a) (15) (F) of the act shall not only have the burden of establishing that he is entitled to classification as a student within the meaning of that section of the act, but also that he is not ineligible to receive a visa as a nonimmigrant under the provisions of section 212 of the act or any other pertinent provision of law, and § 41.17. Such alien shall establish specifically that:

(1) He has a residence in a foreign country which he has no intention of abandoning;

(2) He is a bona fide student qualified to pursue, and is seeking to enter the United States temporarily and solely for the purpose of pursuing, a full course of study as prescribed by the established institution of learning or other recognized place of study to which he is destined;

(3) He will attend, and has been accepted for attendance by, an established institution of learning or other recognized place of study in the United States which has been approved by the Attorney General for the purposes of section

101 (a) (15) (F) of the act, as evidenced by the presentation of Form I-20 properly executed by the accepting school, signed by the alien, and notarized by the consular officer. The Form I-20, when properly executed and presented by an alien in support of application for a student visa, shall be accepted by the consular officer as prima facie evidence that the designated institution of learning or other place of study has been approved by the Attorney General for the attendance of nonimmigrant students, and that the visa applicant has been accepted for attendance at such institution or place of study;

(4) He is in possession of sufficient funds to cover his expenses or other arrangements have been made to provide for his expenses;

(5) He has sufficient scholastic preparation and knowledge of the English language to enable him to undertake a full course of study in the institution of learning or other place of study by which he has been accepted, or if his knowledge of the English language is inadequate to enable him to pursue a full course of study in such language, the approved school or other recognized place of study is equipped to offer, and has accepted him expressly for, a full course of study in a language with which he is sufficiently familiar, or special arrangements have been made by the accepting institution or other place of study for tutoring the applicant in the English language and the consular officer is satisfied that the applicant will be able, with the assistance of such tutoring, to undertake a full course of study in the United States; and that

(6) He intends in good faith, and will be able, to depart from the United States upon the termination of his status.

(b) An alien who intends to study the English language exclusively while in the United States may be classified as a nonimmigrant student under the provisions of section 101 (a) (15) (F) of the act, if otherwise qualified, and if the approved school is equipped to offer, and has accepted him expressly for, a full course of study in the English language, even though no credits are given by the institution for such study. In all cases in which special arrangements have been made with the approved school for the acceptance of a student who lacks an adequate knowledge of the English language, or who intends to enter the

$ 41.90

United States solely for the purpose of studying the English language, a copy of the letter from the school setting forth such arrangements shall be given to the alien for presentation to the immigration officer at the port of entry in the United States.

(Sec. 291, 66 Stat. 234; 8 U. S. C. 1361)

INTERNATIONAL ORGANIZATION ALIENS

§ 41.90 Aliens coming to international organizations. (a) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (G) (i) of the act shall be required to establish to the satisfaction of the consular officer that he seeks to enter the United States as:

(1) A designated principal resident representative of a foreign government recognized de jure by the United States, to an international organization of which the government he represents is a member; or

(2) An accredited resident member of the staff of such representative; or

(3) A member of the immediate family of such a representative, or of an accredited resident member of his staff.

(b) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (G) (ii) of the act shall be required to establish to the satisfaction of the consular officer that he seeks to enter the United States as:

(1) An accredited representative, other than a designated principal resident representative described in paragraph (a) of this section, of a foreign government recognized de jure by the United States, to an international organization of which the government he represents is a member; or

(2) A member of the immediate family of such representative.

(c) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (G) (iii) of the act shall be required to establish to the satisfaction of the consular officer that he seeks to enter the United States as:

(1) An accredited representative of a foreign government not recognized de jure by the United States, to an international organization of which the government he represents is a member; or

(2) An accredited representative of a foreign government recognized de jure by the United States, to an international

organization of which the government he represents is not a member; or

(3) An accredited representative of a foreign government not recognized de jure by the United States, to an international organization of which the government he represents is not a member; or

(4) A member of the immediate family of a representative as described in subparagraph (1), (2) or (3) of this paragraph.

(d) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (G) (iv) of the act shall be required to establish to the satisfaction of the consular officer that he seeks to enter the United States as:

(1) An officer or employee of an international organization; or

(2) A member of the immediate family of such officer or employee.

(e) An alien applying for a nonimmigrant visa under the provisions of section 101 (a) (15) (G) (v) of the act shall be required to establish to the satisfaction of the consular officer that he seeks to enter the United States as:

(1) An attendant, servant, or personal employee of a representative, officer, or employee referred to in paragraphs (a), (b), (c), and (d) of this section; or as

(2) A member of the immediate famor ily of such attendant, servant, personal employee.

(f) Aliens referred to in paragraphs (a), (b), (c), (d), and (e) of this section may be accorded a nonimmigrant classification under the provisions of section 101 (a) (15) (G) of the act only if they seek to enter, or pass in transit through, the United States in pursuance of their official duties directly related to such status, as distinct from personal or other private business or pleasure in which case they shall be classified, if otherwise qualified as nonimmigrants, under some other appropriate category defined in section 101 (a) (15) of the act.

(g) No alien shall be accorded nonimmigrant status under section 101 (a) (15) (G) of the act if the facts in his case clearly bring him within any other specific nonimmigrant category defined in section 101 (a) (15) of the act.

(h) The term "international organization" means any public international organization which has been designated by the President by Executive order as being entitled to enjoy the privileges,

exemptions, and immunities provided for in the International Organizations Immunities Act (59 Stat. 669).

(i) The term "principal alien" means one from whom an alien who is a member of his staff, a member of his immediate family, or his attendant, servant, or personal employee, derives such subsidiary or subordinate status, provided such status is comprehended within the specific provisions of section 101 (a) (15) (G) of the act.

(j) The term "immediate family", as used in section 101 (a) (15) (G) of the act, means close relatives who are members of the immediate family by blood, marriage, or adoption, who are not members of some other household, and who will reside regularly in the household of the principal alien in the United States from whom they derive their subsidiary status.

(k) The term "attendants", as used in section 101 (a) (15) (G) (v) of the act, includes an alien who is paid from the public funds of the foreign government to which he owes allegiance, or from the funds of the international organization, and who is accompanying or following to join the principal alien to whom he owes a duty or service.

(1) The term "servants" and "personal employees", as used in section 101 (a) (15) (G) (v) of the act, include an alien who is employed in a domestic or personal capacity by a principal alien, who is paid from the private funds of such alien, and who seeks to enter the United States solely for the purpose of such employment.

(m) An alien who applies for a visa as a nonimmigrant under the provisions of section 101 (a) (15) (G) of the act shall not be refused such visa solely on the ground that he is not a national of the country whose government he represents.

(Sec. 101, 66 Stat. 166; 8 U. S. C. 1101)

§ 41.91 Evidence of status as representative to, or officer or employee of, international organization. (a) An alien applying for a visa as a nonimmigrant representative to, or as an officer or employee of, an international organization shall be required to present evidence of his status and of the means and destination of his travel to, or through, the United States. The consular officer to whom such alien applies for a visa may, if in doubt, require a confirmation of the

status of such representative, officer, or employee from the appropriate foreign office or from the international organization concerned, and any other evidence considered necessary to establish the applicant's eligibility to receive a visa as a nonimmigrant under the provisions of section 101 (a) (15) (G), and other applicable provisions, of the act.

(b) An alien who applies for a visa as a resident member of the staff, a member of the immediate family, or an attendant, servant, or personal employee, of a principal alien may be required to present satisfactory evidence of such status.

§ 41.92 Procedure in issuing visa to representative to, or officer or employee of, international organization. (a) The provisions of §§ 41.5 and 41.12 shall be followed in issuing a visa to an alien as a nonimmigrant under the provisions of section 101 (a) (15) (G) of the act.

(b) In the case of an alien who is a resident member of the staff, a member of the immediate family, or an attendant, servant, or personal employee of a principal alien, the name and title of the principal alien from whom such status is derived shall be written below the lower margin of the visa stamp or on the same page of the passport or other document bearing the visa stamp.

(c) An alien who seeks to enter the United States as a foreign-government representative to an international organization and who, at the same time, is proceeding to the United States on official business as a foreign-government official within the meaning of section 101 (a) (15) (A) of the act, shall, if otherwise qualified, be issued a visa as a nonimmigrant under the provisions of section 101 (a) (15) (A) of the act. TEMPORARY WORKERS

§ 41.100 Temporary workers and trainees. (a) No alien shall be accorded consideration as a nonimmigrant under the provisions of section 101 (a) (15) (H) of the act unless the consular officer shall have received from the Immigration and Naturalization Service a petition filed by the alien's prospective employer and approved in accordance with the provisions of section 214 (c) of the act. Subject to the provisions of § 42.28 of this chapter, consular officers shall, upon receipt of such a petition, grant the nonimmigrant status indicated in the petition: Provided, That the approval of

such a petition shall not, of itself, establish that the alien is a bona fide nonimmigrant or that he is otherwise eligible to receive a nonimmigrant visa.

(b) Aliens who are entitled to classification as nonimmigrants under the provisions of section 101 (a) (15) (A) or (G) of the act shall not be subject to the petition requirements of section 101 (a) (15) (H) and section 214 (c) of the act, unless they are coming to the United States under contract or other pre-arrangement to perform service or labor for hire, or for training, which is outside the scope of the official duties inherently involved in their status, in which case they shall be classified as nonimmigrants under the provisions of section 101 (a) (15) (H) of the act and approved petitions shall be required before the visas are issued.

(c) No consular officer shall refuse to grant nonimmigrant status to an alien under the provisions of section 101 (a) (15) (H) of the act on the ground that the alien is not qualified to perform the service or labor, or to undertake the training, specified in the employer's petition approved by the Attorney General: Provided, That a consular officer who knows or has reason to believe that such alien is not so qualified shall suspend action on the alien's application for a nonimmigrant visa under section 101 (a) (15) (H) of the act and submit a full report to the Secretary of State for possible reference to the Attorney General of the question whether the Attorney General desires to reconsider his approval of the employer's petition.

(d) If the consular officer knows or has reason to believe that an alien applying for a visa as a nonimmigrant under the provisions of section 101 (a) (15) (H) of the act is ineligible to receive such visa under the provisions of section 212 of the act or any other provision of law, and § 41.17, he shall refuse to issue such visa and shall submit a full report to the Secretary of State for possible reference to the Attorney General to complete the file of the Immigration and Naturalization Service in the case.

(e) Aliens coming to the United States as temporary workers or trainees under the exchange visitor program provided for in the United States Information and Educational Exchange Act of 1948, as amended (62 Stat. 6, 66 Stat. 276; 22 U. S. C. 1446), shall be classified as nonimmigrants under the

symbol "EX" and the provisions of section 101 (a) (15) of the act, and § 41.5. Such cases shall not be subject to the petition procedure provided for in section 214 (c) of the act. (See § 41.41.)

(f) An alien who is of distinguished merit and ability and who seeks to enter the United States temporarily with the general intention of performing temporary service of an exceptional nature requiring such merit and ability, but having no contract or prearranged employment, may be classified as a temporary visitor for business under the provisions of section 101 (a) (15) (B) of the act.

(g) The terms "industrial trainee", as used in section 101 (a) (15) (H) (iii) of the act, means a nonimmigrant alien who seeks to enter the United States at the invitation of an individual, organization, firm, or other trainer for the purpose of receiving instruction in any field of endeavor, including agriculture, commerce, communication, finance, government, transportation, and the professions, as well as in a purely industrial establishment, regardless of whether any benefit, direct or indirect, accrues to the United States employer or trainer, and regardless of the source of any remuneration received by the alien.

(Sec. 101, 66 Stat. 166; 8 U. S. C. 1101)

(a)

§ 41.101 Alien servant or personal employee of member of the Foreign Service of the United States, or of other citizen or resident of the United States. Except as provided in paragraphs (b) and (c) of this section, an alien seeking to enter the United States temporarily for employment as the personal servant or personal employee of a member of the Foreign Service of the United States, or of any other citizen or lawful resident of the United States, shall, if otherwise qualified, be classified as a nonimmigrant under the provisions of section 101 (a) (15) (H) (ii) of the act. The petition procedure provided for in section 214 (c) of the act and referred to in § 41.100 (a) shall apply in the case of any such alien servant or employee.

(b) An alien personal servant or personal employee accompanying or following to join an employer who is classifiable as a nonimmigrant or who is in the United States as a nonimmigrant, other than a nonimmigrant under section 101 (a) (15) (A) or (G) of the act, or an alien personal servant or personal employee accompanying or following to

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