States and the period of his temporary visit abroad, unless the consular officer has reason to question the legality of the alien's previous admission into the United States for permanent residence, or his eligibility otherwise to receive an immigrant visa. If any such record or document is not obtainable within the meaning of § 42.35 (c), the consular officer may permit the alien to submit, in lieu thereof, other satisfactory evidence of the fact to which the record or document would, if obtainable, pertain.

(d) Bearers of reentry permits. An alien who is in possession of an unexpired reentry permit issued to him by the Immigration and Naturalization Service, and who makes application for an immigrant visa of any kind shall, prior to the issuance of the visa, relinquish such permit to the consular officer for attachment to the immigrant visa and for such disposition at the port of entry as the immigration officer deems appropriate.

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

§ 42.6 Natives of Western Hemisphere countries. (a) An alien shall be accorded a nonquota immigrant status under the provisions of section 101 (a) (27) (C) of the act only if such alien sustains the burden of presenting evidence which establishes to the satisfaction of the consular officer that:

(1) Such alien was born in Canada, the Republic of Mexico, the Republic of Cuba, the Republic of Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, or that

(2) Such alien is the eligible spouse, or the child of an alien referred to in subparagraph (1) of this paragraph, and is accompanying or following to join him.

(b) The provisions of paragraph (a) of this section shall not apply to a Chinese person, or to any other person who is attributable by as much as onehalf of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle, unless such person is the child of, and is accompanying or following to join, an alien referred to in subparagraph (1) of paragraph (a) of this section.

(c) Nonquota immigrant status under the provisions of section 101 (a) (27) (C) of the act, once acquired as provided in paragraphs (a) and (b) of this section, shall not be lost by the operation of the provisions of section 202 (a) (1) or (2) of the act.

(d) An alien born in a quota area and claiming nonquota immigrant status under the provisions of section 101 (a) (27) (C) of the act because of relationship to a spouse or parent born in a nonquota country shall be required to present the evidence necessary to establish such status.

(e) An alien referred to in subparagraph (2) of paragraph (a) of this sec-. tion, who is following to join an alien parent in the United States, shall establish by satisfactory evidence that the parent was born in a nonquota country, and has the status of an alien lawfully admitted for permanent residence.

(f) An alien applying for a nonquota immigrant visa as the spouse of an alien classifiable as a nonquota immigrant under the provisions of section 101 (a) (27) (C) of the act shall be required to establish that the applicant's spouse from whom nonquota status is derived by the applicant under that section of the act was born in a nonquota country and is eligible to receive a nonquota immigrant visa under that section of the act, or that such applicant's spouse was born in a nonquota country and has the status of an alien lawfully admitted for permanent residence. Such an applicant shall not be eligible for nonquota status under section 101 (a) (27) (C) of the act if he or she is a Chinese person, or any other person who is attributable by as much as one-half of his or her ancestry to a people or peoples indigenous to the Asia-Pacific triangle.

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

§ 42.7 Former United States citizens(a) Women expatriates. An alien applying for reacquisition of citizenship under the provisions of section 324 (a) of the act shall, regardless of ancestry, be accorded nonquota immigrant status under the provisions of section 101 (a) (27) (D) of the act only if such alien sustains the burden of presenting evidence which establishes to the satisfaction of the consular officer that she was a citizen of the United States and that she lost her citizenship by reason of marriage to an alien, or by reason of the loss of United States citizenship by her husband, or by reason of her marriage to an alien who was ineligible to citizenship, and that she has not acquired any other nationality by any affirmative act other than marriage. The provisions of this paragraph shall apply to aliens

regardless of their marital status at the time of the issuance of a visa.

(b) Military expatriates. A person, regardless of ancestry, who, during World War II and while a citizen of the United States, lost his United States citizenship under the provisions of section 2 of the act of March 2, 1907 (34 Stat. 1228), or under the provisions of section 401 (b) or (c) of the Nationality Act of 1940 (54 Stat. 1169), by reason of entering, or serving in, the military, air, or naval forces of any country at war with a country with which the United States was at war after December 7, 1941 and before September 2, 1945, or by reason of taking an oath or obligation for the purpose of entering such forces, and who may apply for reacquisition of citizenship under the provisions of section 327 of the Immigration and Nationality Act, may be accorded the status of a nonquota immigrant under the provisions of section 101 (a) (27) (D) of that act. For the purposes of section 327 of the Immigration and Nationality Act, World War II shall be deemed to have begun on September 1, 1939, and to have terminated on September 2, 1945.

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

§ 42.8 Ministers of religion. (a) An alien shall, regardless of ancestry, be accorded a nonquota immigrant status under the provisions of section 101 (a) (27) (F) of the act only if such alien establishes that:

(1) He continuously for at least 2 years immediately preceding the time of his application for a visa has been, and seeks to enter the United States solely for the purpose of, carrying on the vocation of minister of a recognized religious denomination having a bona fide organization in the United States and needing the services of such minister, as evidenced by an authorization from the Secretary of State to grant such status upon the basis of a petition filed by a competent authority of the denomination with, and approved by, the Attorney General; or

(2) Is the spouse or child of such minister and is accompanying or following to join him.

(b) The term "minister", as used in section 101 (a) (27) (F) of the act, means a person duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and

to perform other duties usually performed by a regularly ordained pastor or clergyman of such denomination. The term shall not include a lay preacher not authorized to perform the duties usually performed by a regularly ordained pastor or clergyman of the denomination of which he is a member, and shall not include a nun, lay brother, or cantor.

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

§ 42.9 United States Government employees. An alien shall, regardless of ancestry, be accorded a nonquota immigrant status under the provisions of section 101 (a) (27) (G) of the act only if the consular officer is satisfied that such alien:

(a) Has served the Government of the United States faithfully as an employee for a total period of not less than 15 years;

(b) Performed such service abroad for one or more establishments of the United States Government, but not necessarily for the Foreign Service of the United States;

(c) If a former employee, was retired under honorable conditions; and

(d) Has been recommended for such nonquota status by the principal officer at the diplomatic or consular office where the alien is applying for a visa and such recommendation shall have been approved by the Secretary of State upon the basis of a finding that the granting of such status is in the national interest of the United States; or

(e) Is the spouse or child of an alien described in paragraphs (a) to (d), inclusive, of this section.

(Sec. 101, 66 Stat. 166; 8 U. S. C. 1101) CLASSES OF QUOTA IM MIGRANTS

§ 42.10 Quota immigrants-(a) Presumption of classification. Every alien shall be presumed to be a nonpreference quota immigrant until such alien establishes that he is entitled to be classified as a preference quota immigrant, or as a nonquota immigrant, or as a nonimmigrant.

(b) Burden of proof of classification. Every alien who seeks to establish that he is classifiable as a preference quota immigrant shall have the burden of proving that he is entitled to be classified within one of the preference quota classes specified in the act and referred to more specifically in § 42.11.

(c) Effect of approved petition. The fact that a consular officer shall have been authorized by the Secretary of State to grant a preference quota status to an alien upon the basis of a petition filed with, and approved by, the Attorney General in such alien's case shall not be considered as shifting from the alien to the consular officer the burden of proving eligibility to receive a visa. Such authorization by the Secretary of State shall have the effect of establishing prima facie that the alien is entitled to the classification approved in the petition.

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

§ 42.11 Classes of quota immigrants— (a) First preference class. The first preference class of quota immigrants shall consist of the selected immigrants referred to in section 203 (a) (1) of the act, including the spouses and children of such immigrants accompanying or following to join them, who shall be entitled to preferential consideration under the first half of the quota to which they are chargeable and within any other portion of such quota not required for the issuance of visas to immigrants primarily entitled thereto.

(b) Second preference class. The second preference class of quota immigrants shall consist of the alien parents of citizens of the United States, such citizens being twenty-one years of age or over, as referred to in section 203 (a) (2) of the act, who shall be entitled to preferential consideration under the next 30 per centum of the quota to which they are chargeable and to second preference within any other portion of such quota not required for the issuance of visas to immigrants primarily entitled thereto.

(c) Third preference class. The third preference class of quota immigrants shall consist of the alien spouses and children of aliens lawfully admitted for permanent residence, referred to in section 203 (a) (3) of the act, who shall be entitled to preferential consideration under the remaining 20 per centum of the quota to which they are chargeable and to third preference within any other portion of such quota not required for the issuance of visas to immigrants primarily entitled thereto.

(d) Fourth preference class. The fourth preference class of quota immigrants shall consist of the alien brothers and sisters of United States citizens, and

of the alien sons and daughters who are twenty-one years of age or over, or married, of United States citizens, as referred to in section 203 (a) (4) of the act, who shall be entitled to a preference of not exceeding 25 per centum of that portion of every quota which is not required for the issuance of immigrant visas to qualified immigrants within the first, second, and third preference classes.

(e) Nonpreference class. The nonpreference class of quota immigrants shall consist of all quota immigrants not entitled to preferential consideration as preference-quota immigrants under section 203 (a) (1), (2), (3), or (4) of the act: Provided, That prior to July 1, 1954, not more than 50 per centum of the quota numbers available for the issuance of visas to qualified nonpreference quota immigrants shall be available for the issuance of visas to qualified immigrants under the second proviso to section 3 (c) of the Displaced Persons Act of 1948, as amended (62 Stat. 1009, 64 Stat. 219).

(f) Priority of access to unused portions of a quota. In determining

whether an alien shall have access to an unused preference portion of a quota after the preference portion of the quota to which he is primarily entitled has been exhausted, priority shall be given to aliens within each of the preference classes in the order of their preference as specified in the act, until the unused portion or portions of the quota shall have been exhausted. No quota number shall be made available for the issuance of an immigrant visa to a nonpreference quota immigrant if there is a sufficient demand on the part of qualified preference-quota immigrants to exhaust the quota.

(Sec. 203, 66 Stat. 178; 8 U. S. C. 1153) [22 F. R. 10813, Dec. 27, 1957, as amended by Dept. Reg. 108.351, 22 F. R. 10918, Dec. 28, 1957]

§ 42.12 Annual determination of quota numbers available under each quota. For the purposes of section 203 (a) of the act and § 42.11, the full quota for each quota area for each quota year shall be considered to be the quota as proclaimed by the President under section 201 (b) or 202 (e) of the act, less the quota numbers authorized to be taken from, or otherwise previously used under such quota by authority of law before the beginning of each quota year, as provided in section 201 (e) of the act, or in any other provision of law.

§ 42.13 Determination of quota to which an immigrant is chargeable. (a) An immigrant born in a quota area shall be chargeable to the quota of such quota area unless (1) he is classifiable as a nonquota immigrant under section 101 (a) (27) of the act, (2) he is classifiable as a nonquota immigrant under section 4, 9, 12, or 15 of the Act of September 11, 1957 (Public Law 85-316, 71 Stat. 639), (3) his case falls within one of the exceptions to the general rule of quota chargeability as provided in section 202 of the Immigration and Nationality Act, or (4) he is a Chinese person who is chargeable to the quota for Chinese persons as provided in § 42.15.

(b) A quota immigrant child accompanied by his alien parent may be charged to the quota of the accompanying parent, as provided in section 202 (a) (1) of the act, regardless of the ancestry of such child or of his accompanying alien parent, and regardless of whether the child was born in the AsiaPacific triangle or in a subquota area inside or outside of such triangle. This rule shall apply in such manner as to permit a child born in a subquota area to be charged, as provided in section 202 (a) (1) of the act, to a governing country's quota with his accompanying parent who is chargeable to such governing country's quota, even if the child was born in a subquota area under the same governing country's quota and the subquota is exhausted.

(c) An alien born in a quota area in which neither of his parents was born and in which his parents were, at the time of such alien's birth, merely visiting temporarily, or in which one or both of his parents were stationed after having been sent there temporarily under orders or instructions of an employer, principal, or superior authority foreign to such country in connection with the business or profession of such employer, principal, or superior authority, may, except as otherwise provided in section 202 (a) (5) of the act, be charged to the quota of either parent, as provided in section 202 (a) (4) of the act.

(d) A quota immigrant spouse who is not attributable by as much as one half of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle may, as provided in section 202 (a) (2) of the act, be charged to the quota of his accompanying spouse, including the

Asia-Pacific quota, the quota for Chinese persons, or any other Asia-Pacific triangle quota.

(Sec. 202, 66 Stat. 176; 8 U. S. C. 1152) [22 F. R. 10813, Dec. 27, 1957, as amended by Dept. Reg. 108.351, 22 F. R. 10918, Dec. 28, 1957]

§ 42.14

ASIANS

Asia-Pacific triangle-(a) Persons born in a quota area in the triangle. A quota immigrant, regardless of his ancestry, who was born in a quota area lying wholly within the geographically delimited area specified in section 202 (b) of the act and referred to as the Asia-Pacific triangle, shall be chargeable to the quota of the quota area of his birth, unless he falls within one of the exceptions to the general rule of quota chargeability, as specified in section 202 of the act, or unless he is chargeable to the quota for Chinese persons as provided in § 42.15.

(b) Persons indigenous to, but born outside of, the Asia-Pacific triangle. A quota immigrant who was born outside of the Asia-Pacific triangle and who is attributable by as much as one-half of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle shall be chargeable to a quota as specified in section 202 (b) of the act, unless he is chargeable to the quota for Chinese persons as provided in § 42.15.

(c) Asia-Pacific quota. Quota immigrants in the following categories, other than Chinese persons, and except as provided in § 42.13 (b), shall be chargeable to the Asia-Pacific quota of one hundred annually:

(1) A quota immigrant attributable by as much as one-half of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle, if born within a colony or other dependent area situate wholly within said triangle;

(2) A quota immigrant born outside the Asia-Pacific triangle who is attributable by as much as one-half of his ancestry to a people or peoples indigenous to one or more colonies or other dependent areas situate wholly within the Asia-Pacific triangle;

(3) A quota immigrant born outside the Asia-Pacific triangle who is attributable by as much as one-half of his ancestry to peoples indigenous to two or more separate quota areas situate wholly within the Asia-Pacific triangle; and

(4) A quota immigrant born outside the Asia-Pacific triangle who is attributable by as much as one-half of his ancestry to peoples indigenous to a quota area or areas and one or more colonies and other dependent areas situate wholly within the Asia-Pacific triangle.

(d) Aliens chargeable to Asia-Pacific quota. No alien shall be chargeable to the Asia-Pacific quota, except one who falls within one of the categories enumerated under subparagraphs (1) to (4) inclusive, of paragraph (c) of this section, and who is attributable by as much as one-half of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle.

(e) Pacific Islands (trust territory, United States administered). The quota proclaimed for "Pacific Islands (trust territory, United States administered)" to which an immigrant is chargeable in accordance with the provisions of section 202 of the act shall be distinguished from the Asia-Pacific quota which is referred to in paragraph (c) of this section. (Sec. 202, 66 Stat. 176; 8 U. S. C. 1152)

§ 42.15 Quotas for Chinese persons and for China-(a) Quota for Chinese persons. A Chinese person who is classiflable as a quota immigrant shall be chargeable, regardless of the place of his birth, to the quota for Chinese persons of 105 annually authorized under section 201 (a) of the act, unless such person is a child chargeable to the quota of an accompanying parent as provided in section 202 (a) (1) of the act.

(b) Quota for China. An alien, other than a Chinese person, who was born in China and who is classifiable as a quota immigrant shall be chargeable to the quota for China regardless of his ancestry, unless such alien falls within paragraph (1), (2), (3), or (4) of section 202 (a) of the act: Provided, That if such alien is attributable by as much as onehalf of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle he may be excepted from chargeability to the quota for China only if he is a child chargeable to the quota of an accompanying parent as provided in section 202 (a) (1) of the act.

§ 42.16 Quota preferences applicable to quotas of quota areas within AsiaPacific triangle. The provisions of section 203 (a) of the act concerning the classes of quota immigrants and the preferences within such classes, as de

scribed in § 42.11, shall apply to all quotas, including all quotas for quota areas within the Asia-Pacific triangle, which shall include the quota for Chinese persons.

§ 42.17 Nonquota status for natives of Asia-Pacific triangle: Exceptions. The provisions of section 101 (a) (27) of the act defining the nonquota classes, except the provisions of subparagraph (C) thereof relating to certain natives of Western Hemisphere countries, shall be applicable to qualified immigrants including Chinese persons and others who are attributable by as much as one-half of their ancestry to a people or peoples indigenous to the Asia-Pacific triangle: Provided, That the child of an immigrant parent who is entitled to nonquota status under the provisions of section 101 (a) (27) (C) of the act, if accompanying or following to join such a parent, shall also be entitled to nonquota status under that section of the act, notwithstanding the fact that such child may be a Chinese person or may be attributable by as much as one-half of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle.

(Sec. 202, 66 Stat. 176; 8 U. S. C. 1152)

§ 42.18 Subquotas—(a) Definition. The term "subquota" refers to that portion of the quota of a governing country which may be made available, subject to a limitation of 100 annually, to quota immigrants born in any colony or other component or dependent area overseas from such governing country.

(b) Immigrants chargeable to subquotas. Any quota immigrant born in a colony or other component or dependent area overseas from the governing country shall be chargeable to the subquota of such country, except as provided in paragraph (c) of this section, or § 42.13 (b).

(c) Exceptions to subquota chargeability. (1) Any quota immigrant born in a colony or other component or dependent area overseas from the governing country, who is a Chinese person or who is attributable by as much as onehalf of his ancestry to a people or peoples indigenous to the Asia-Pacific triangle, shall not be chargeable to a subquota, but shall be chargeable to the Chinese quota if a Chinese person, or to another appropriate quota, as provided in section 202 (b) of the act, and §§ 42.14 and 42.15.