(d) An alien member of the armed forces of the United States who is in the uniform of, or who bears documents identifying him as a member of, such armed forces, who has been previously lawfully admitted for permanent residence, and who is proceeding to the United States under official orders or permit of such armed forces.

(e) Any alien lawfully admitted for permanent residence who is not required under the regulations of the Attorney General to present a valid immigrant visa upon returning to the United States.

(f) An alien who shall leave Hawaii, Alaska, 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, except as limited by the proviso contained in section 212 (d) (7) of the act in the cases of aliens admitted to Hawaii.

APPLICATIONS

immigrant

§ 42.30 Application for visa-(a) Form and content of application. Every alien applying for an immigrant visa shall make application therefor on Form 256. In the application the immigrant shall furnish the information required under the provisions of section 222 (a) of the act, and such additional information as may be required in the application form. The requirement of the act that an immigrant shall state in his application his race and ethnic classification does not pertain to his religion.

(b) Persons required to make separate application. (1) Each alien shall be required to make a separate application for an immigrant visa;

(2) An alien under 14 years of age, or one physically incapable of executing an application, may have his application for an immigrant visa executed in his behalf by a parent or guardian. If the alien has no parent or guardian, the application may be executed by any person having lawful custody of, or a legitimate interest in, such alien.

(c) Personal appearance. Every applicant for an immigrant visa, including an alien whose application is executed by another person, shall be required to appear personally at the consular office in connection with his application.

(d) Photographs. Each applicant shall be required to furnish, with his application for an immigrant visa 3 identical

copies of his photograph. The photographs shall reflect a reasonable likeness of the alien as of the time they are furnished, be 2 by 2 inches in size, unmounted, show a full front view without head covering, and shall be printed on a light background. Each copy of such photograph shall be signed by the person making an application in such a way as not to obscure the alien's features. One copy of such photograph shall be attached to Form 256a and another to Form 256b. The third copy shall be enclosed in a sealed envelope which shall be appended to Form 256a.

(e) Place of application. Every alien applying for an immigrant visa shall make application at a United States consular office in the consular district in which he has his residence: Provided, That a consular officer shall at the direction of the Secretary of State, or may in his discretion, accept an application for an immigrant visa from an alien having no residence in a consular district if such alien is physically present therein.

(f) Completion of visa application. The consular officer to whom formal application is made for an immigrant visa shall make certain that all pertinent questions on the application form are answered and all applicable blank spaces are filled out. The consular officer shall have authority to require, in his discretion, that an applicant for an immigrant visa answer any questions pertaining to arrests, police or criminal record, or other facts in his case which are deemed to be material to his application. Such additional statements shall be attached to Form 256 and made a part of the alien's visa application and shall be covered by the alien's oath to, or affirmation of, the application. The applicant shall be required to read the application when it is completed, or it shall be read to him in his language, or he shall otherwise be apprised of its full contents, and he shall be asked whether he is willing to subscribe thereto. If the alien is not willing to subscribe to the application unless changes are made in the information stated therein, a new application containing the necessary information as stated by the alien shall be prepared.

(g) Signature and seal. Form 256 shall be signed in the presence of the consular officer by the applicant in the appropriate spaces in accordance with the manner in which he affixes his signature. The application shall be sworn

to, or affirmed, by the applicant before the consular officer, who shall be satisfied that the applicant understands, and is willing to subscribe to, its contents. The consular officer shall then sign such application, indicate his title, and affix the seal of his office in the designated places.

(h) Fee receipt notation. The receipt of the prescribed fee ($5) for the furnishing and verification of each application for an immigrant visa shall be evidenced by a rubber-stamped or typed notation placed on the reverse side of Form 256a opposite the space formerly reserved for the application fee number, and properly completed in the following form: Service No.

Tariff Item No.

Fee Paid: U. S. $_

Local CY. equiv.

(Sec. 222, 66 Stat. 193; 8 U. S. C. 1202)

§ 42.31 Immigrant preceding his family; informal examination of members of family. (a) In the case of an applicant for an immigrant visa who proposes to precede his family to the United States, the consular officer may arrange for an informal examination of the other members of such applicant's family in order to determine whether there exists at that time any mental, physical, or other ground of ineligibility on their part to receive an immigrant visa;

(b) In the event any member of such family is found upon informal examination to be ineligible to receive an immigrant visa, the alien who intends to precede his family to the United States shall be so informed, and required by the consular officer to acknowledge in writing that he has been so informed;

(c) A determination in connection with an informal examination that an alien appears to be eligible for a visa shall carry no assurance that the alien concerned will be issued an immigrant visa in the future. The question of eligibility to receive such a visa is one which must finally be determined at the time of formal application.

§ 42.35 Supporting documents in immigrant cases; burden of proof—(a) Burden of proof. An alien who applies for an immigrant visa shall have the burden of establishing not only that he is entitled to the classification he seeks, but also that he is otherwise eligible to receive an immigrant visa under the immigration laws and the provisions of this part.

(b) Supporting documents. An alien applying for an immigrant visa shall be required to furnish with his application 2 copies of a police certificate; 2 certified copies of any existing prison record, military record, and record of his birth; and 2 certified copies of all other records or documents concerning him or his case, which the consular officer may deem to be necessary.

(1) The term "police certificate”, as used in this section, means a certification by the appropriate police authorities stating what their records show concerning the alien, including any and all arrests, the reasons therefor, and the disposition of each case of which there is a record.

(2) The term "prison record", as used in this section, means an official document containing a report of the applicant's record of confinement in a penal or correctional institution, including his demeanor during such confinement.

(3) The term "military record", as used in this section, means an official document containing a record of the applicant's service and conduct while in military service, including any convictions of crime before military tribunals as distinguished from other criminal courts. A certificate of discharge from the military forces or an enrollment book belonging to the applicant shall not be acceptable in lieu of the official military record unless it shows the alien's complete record while in military service as hereinbefore indicated in this subparagraph. The applicant may, however, in any event be required to present for inspection such a discharge certificate or enrollment book if deemed necessary by the consular officer to establish the applicant's eligibility to receive an immigrant visa.

(4) The term "record of birth", as used in this section, means a birth certificate showing the date and place of birth and the parentage of an alien, issued by the official custodian of birth records in the country of the applicant's birth and based upon the original registration of birth. An alien who has only one copy of his birth certificate and cannot obtain another may present two certified or photostatic copies thereof, but the original shall be offered for inspection by the consular officer who may return it to the alien.

(5) The term "other records or documents", as used in this section, includes

official records which are pertinent to a determination of the applicant's identity, classification, or any other matter reiating to his eligibility to receive an immigrant visa.

(c) Unobtainable documents. (1) If an immigrant establishes to the satisfaction of the consular officer that any document or record required under this section is unobtainable, the consular officer may permit the immigrant to submit, in lieu of such document or record, other satisfactory evidence of the fact to which such document or record would, if obtainable, pertain. A document or other record shall be considered "unobtainable" if it cannot be procured without causing to the applicant or a member of his family actual hardship, other than normal delay and inconvenience.

(2) If the consular officer determines that a supporting document, as referred to in paragraph (b) of this section, actually is unobtainable, although the catalog of available documents prepared by the Department shows that it is available, he shall affix to each copy of the visa application a statement bearing his signature and the seal of his office and setting forth in detail his reasons for considering the record or document to be unobtainable, and for accepting the particular secondary evidence attached to the visa.

(d) Authenticity of records and documents. If a consular officer has reason to believe that a particular record or document required under the provisions of this section and submitted by an applicant is not authentic or has been altered or tampered with in any material manner, he shall require or take such action as may be necessary to determine its authenticity, or to ascertain the facts to which such document purports to relate in the alien's case.

(Sec. 222, 66 Stat. 193; 8 U. S. C. 1202)

PASSPORTS

NOTE: Under the provisions of section 212 (a) (26) of the Immigration and Nationality Act, a nonimmigrant alien who makes application for a visa or for admission into the United States is required to be in possession of a passport which is valid for a minimum period of six months from the date of expiration of the initial period of his admission into the United States or his contemplated initial period of stay authorizing him to return to the country from which he came or to proceed to and enter some other country during such period. The regulations of the Secretary of State (22 CFR 42.36 (a)) further provide

that every alien who applies for an immigrant visa and who is subject to the passport requirement must be in possession of a passport which is valid for at least sixty days beyond the period of validity of the immigrant visa issued to him. By reason of the foregoing requirements, certain foreign governments have entered into an agreement with the Government of the United States whereby their passports are recognized as valid for the return of the bearer to the country of the foreign-issuing authority for a period of six months beyond the expiration date specified in the passport. These agreements have the effect of extending the validity period of the foreign passport an additional six months notwithstanding the expiration date indicated in the passport. Notice is hereby given that the following foreign governments have concluded such an agreement with the Government of the United States:

Austria (Reisepass only), Brazil, Canada, Ceylon, Cuba, Dominican Republic, Ethiopia, Germany (Reisepass only), Guatemala, Honduras, Iceland, India, Mexico, The Netherlands, Pakistan, Portugal, United Kingdom (nonimmigrants only).

§ 42.36 Passport requirement for immigrants-(a) Requirement. Except as provided in paragraph (b) of this section, every alien applying for an immigrant visa shall present to the consular officer a passport, as defined in section 101 (a) (30) of the act and § 42.1 (f), which shall be valid for at least sixty days beyond the period of validity of the immigrant visa issued to such alien.

(b) Exceptions. An immigrant within any of the following categories shall not be required to present a passport in applying for an immigrant visa:

(1) An immigrant who is a stateless person;

(2) An immigrant who is a national of, and is applying for an immigrant visa outside of, a Communist-controlled country, and who, because of his opposition to Communism, is unwilling to make application for a passport to, or unable to obtain a passport from, the government of such country;

(3) An immigrant lawfully admitted for permanent residence, who is returning to the United States from a temporary visit abroad;

(4) An immigrant who is a member of the Armed Forces of the United States;

(5) An immigrant who is the parent, spouse, or unmarried son or daughter under twenty-one years of age, of a United States citizen;

(6) An immigrant who is the spouse or unmarried son or daughter under

twenty-one years of age of an alien lawfully admitted for permanent residence;

(7) An immigrant who is qualified for and eligible to receive a first preference quota visa, unless such immigrant is applying for a visa in the country of which he is a national and the possession of a passport is required for departure from such country;

(8) An immigrant who has been preexamined in the United States by the Immigration and Naturalization Service and who is applying for an immigrant visa in Canada;

(9) An immigrant who establishes that he is unable to obtain a passport, who is not within any of the categories specified in the paragraph, and in whose case the passport requirement imposed by this section or by the regulations of the Attorney General shall have been waived by the Attorney General and the Secretary of State, as evidenced by a specific instruction from the Department to the consular officer.

(c) Immigrants included in single passport. A passport may include any person or persons whose inclusion is authorized under the laws or regulations of the issuing governmental authority: Provided, That a photograph of each such person fourteen years of age or over shall have been attached to the passport.

EXAMINATION AND FINGERPRINTING

§ 42.37 Physical and mental examination of immigrants. (a) Prior to the issuance of an immigrant visa to any alien, the consular officer shall require such alien to submit to a physical and mental examination in order to determine his eligibility to receive such a visa.

(b) At consular offices where medical officers of the United States Public Health Service are on duty, the alien's examination shall be conducted by such officers. If a medical officer of the United States Public Health Service is not available, the required examination shall be conducted by a reputable and competent physician selected by the alien from a panel of such physicians approved by the consular officer. The consular officer shall bring to the attention of the panel of physicians the regulations of the United States Public Health Service governing the medical examination of aliens, including laboratory tests, and shall advise visa applicants, when laboratory facilities for the required tests are not

available, that such tests must be made at the United States port of entry and may be a basis for the alien's exclusion. (Sec. 221, 66 Stat. 191; 8 U. S. C. 1201)

§ 42.38 Registration and fingerprinting of immigrants—(a) Authority. Every alien applying for an immigrant visa shall be fingerprinted on standard fingerprint Form AR-4, except a child under 14 years of age at the time of application for an immigrant visa.

(b) Advance fingerprints. An alien may be required by the consular officer at the time such alien makes preliminary or informal application for an immigrant visa, to have a set of his fingerprints taken on Form AR-4 in the event such procedure is considered necessary for the purpose of identification, or investigation. Consular officers may, where necessary, use the fingerprint card of an applicant for an immigrant visa in order to ascertain from the appropriate local or any other authorities whether they have any pertinent information concerning the applicant's eligibility to receive a visa.

(c) Alien registration. Every alien executing an application for an immigrant visa on Form 256 is thereby automatically registered, as required by section 221 (b) of the act, if the visa is issued.

(Sec. 221, 66 Stat. 191; 8 U. S. C. 1201) ISSUANCE OF IMMIGRANT VISAS

§ 42.40 Authority to issue, refuse, and revoke, immigrant visas-(a) Authority to issue. Consular officers are authorized to issue immigrant visas in accordance with the authority contained in sections 221 (a) and 224 of the act, and in accordance with the procedure prescribed in § 42.41.

Consular of

(b) Authority to refuse. ficers are authorized to refuse immigrant visas in accordance with the authority contained in section 221 (g) of the act. The term "reason to believe", as used in section 221 (g) of the act, shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive an immigrant visa as provided in the act and as implemented by the regulations contained in this part.

(c) Authority to revoke. Consular officers are authorized to revoke immigrant visas in accordance with the authority contained in section 221 (i) of the act

and on one or more of the specific grounds set forth, and in accordance with the procedure specified in § 42.44. (Secs. 221, 224, 66 Stat. 191, 195; 8 U. S. C. 1201, 1204)

§ 42.41 Procedure in issuing immigrant visa-(a) Insertion of pertinent data. In issuing an immigrant visa, the pertinent information shall be inserted in the designated blank spaces provided on the visa side of Form 256. The dates to be inserted in the appropriate spaces on the visa shall be in a form which shows the day, month, and year, in that order, and the name of the month shall be spelled out-such as; "24 December 1952". A symbol specified in § 42.3 shall be used to indicate the classification of the immigrant and the visa. If the visa is being issued upon the basis of a petition approved by the Attorney General, the number and date of approval of such petition shall be inserted in the space provided for the visa petition number on the visa side of Form 256.

(b) Numbering. Nonquota immigrant visas may be numbered in consecutive order at each consular office, beginning a new series on December 24, 1952, and thereafter on July 1 of each year, if the consular officer in charge considers the numbering of nonquota visas to be desirable. A quota immigrant visa shall bear the quota number assigned to the consular officer for use in issuing the visa to the alien concerned.

(c) Fee receipt notation. The receipt of the prescribed fee ($20) for the issuance of each immigrant visa shall be evidenced by a rubber-stamped or typed notation properly completed in the same form as provided in § 42.30 (h), and placed on the visa part of Form 256a and 256b under the word "seal." This notation shall be made before the impression seal is affixed and the words "Fee No." shall be cancelled.

(d) Signature and seal. The consular officer who issues an immigrant visa shall affix his signature, indicate his title, and impress the seal of his office on the visa side of Form 256a in a manner which partly covers the photograph and the fee stamp. Thereupon, Form 256a shall become an immigrant visa and shall be issued by delivery to the immigrant or his authorized agent or representative.

(e) Passport of unrecognized government. No seal, stamp, or notation of any

kind shall be placed in a passport or other travel document issued by a government not recognized de jure by the United States.

(Sec. 221, 66 Stat. 191; 8 U. S. C. 1201) [22 F. R. 10813, Dec. 27, 1957, as amended by Dept. Reg. 108.351, 22 F. R. 10918, Dec. 28, 1957]

INELIGIBLE IMMIGRANTS

§ 42.42 Classes of aliens ineligible to receive immigrant visas. (a) The following implementation of section 212 of the act shall govern the issuance or refusal of immigrant visas in pertinent

cases:

[Reserved]

(1) Feeble-mindedness. (2) Insanity. [Reserved] (3) One or more attacks of insanity. [Reserved]

(4) Psychopathic personality, epilepsy, or mental defect. [Reserved]

(5) Narcotic drug addicts or chronic alcoholics. [Reserved]

(6) Tuberculosis, leprosy, or dangerous contagious disease. A determination of ineligibility to receive an immigrant visa under the provisions of sections 212 (a) (1) to (6), inclusive, of the act, shall be based upon the finding of a competent medical examiner as referred to in § 42.37: Provided, That in the case of an alien who applies for an immigrant visa at a consular office where no medical officer of the United States Public Health Service has been assigned or detailed, and the consular officer knows or has reason to believe that such alien is a drug addict, a chronic alcoholic, or is afflicted with psychopathic personality by reason of sexual deviation, a finding of ineligibility to receive an immigrant visa under the provisions of section 212 (a) (4) or (5) of the act may be based on facts or circumstances other than the finding of an examining physician.

(7) Physical defect, disease or disability affecting alien's ability to earn a living. An alien within the purview of section 212 (a) (7) of the act may be issued an immigrant visa, if otherwise qualified therefor, upon receipt of notice by the consular officer from the Department of the giving of a bond or undertaking, as provided in section 221 (g) of the act.

(8) Paupers, professional beggars, or vagrants. [Reserved]

(9) Crime involving moral turpitude, (i) An alien shall not be ineligible to receive a visa under the provisions of section 212 (a) (9) of the act (a) solely