obtained permission from the Immigration and Naturalization Service to reapply for admission.

[Subparagraph (16) amended by Dept. Reg. 108.441, 25 F.R. 7018, July 23, 1960]

(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.

[Subparagraph (17) amended by Dept. Reg. 108.441, 25 F.R. 7018, July 23, 1960]

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

(19) Fraud and misrepresentation. (i) 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 restrictions of the United States 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 1948, as Displaced Persons Act of mended, for the purpose of gaining ad

mission 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 pro- '. curement, 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)

[Subparagraph (19) amended by Dept. Reg. 108.441, 25 F.R. 7018, July 23, 1960] Prior Amendments 1959: 24 F.R. 11081, Dec. 31.

(20) Immigrant documentary requirements. (Section 212(a) (20) of the Act inapplicable:)

(21) Non-compliance with section 203 of the Act. (Section 212(a) (21) of the

Act inapplicable.)

(22) Aliens ineligible to citizenship or who departed to avoid service in the Armed Forces. An alien shall be refused a nonimmigrant 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.

[Subparagraph (22) amended by Dept. Reg. 108.422, 24 F.R. 11082, Dec. 31, 1959] (23) Narcotics traffickers. An alien shall be ineligible to receive a nonimmigrant 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.

[Subparagraph (23) amended by Dept. Reg. 108.441, 25 FR. 7019, July 23, 1960] Prior Amendments 1960: 25 F.R. 4579, May 25.

(24) Aliens arriving in foreign contiguous territory or adjacent islands on nonsignatory transportation lines. The provisions of section 212 (a) (24) of the Act shall not render an alien ineligible to receive a nonimmigrant visa inasmuch as the Attorney General upon the recommendation of the Secretary of State has waived this ground of ineligibility for nonimmigrants under the authority contained in section 212(d) (3) (A) of the Act.

(25) Illiterates. (Section 212(a) (25) of the Act inapplicable: section 212(d) (1).)

(26) Nonimmigrant documentary requirements. (i) A passport which is valid indefinitely for the return of the bearer to the country whose government issued such passport shall be deemed to have the required minimum period of validity as specified in section 212 (a) (26) of the Act.

(ii) A crew-list visa issued in accordance with § 41.127 is considered to constitute a valid nonimmigrant visa within the meaning of section 212(a) (26) (B) of the Act.

CROSS REFERENCE: For waivers of and exemptions from documentary requirements see $41.5, 41.6, and 41.91(f).

(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 to 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."

[Subparagraph (28) (1) amended by Dept. Reg. 108.422, 24 F.R. 11082, Dec. 31, 1959]

(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 ineligibilty 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.

on

(iv) If an alien continues or continued his membership in or affiliation with a proscribed organization 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) 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.

[Subdivisions (iv) and (v) amended by Dept. Reg. 108.477, 25 F.R. 9243, Sept. 28, 1960]

Prior Amendment

1959: 24 F.R. 11082, Dec. 31.

(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 did 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.

[Subdivision (vi) amended by Dept. Reg. 108.441, 25 F.R. 7019, July 23, 1960] Prior Amendments

1959: 24 F.R. 11082, Dec. 31.

(vii) The words "actively opposed", as used in section 212(a) (28) (D) (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. [Subdivision (vii) amended by Dept. Reg. 108.469, 26 F.R. 6441, July 18, 1961]

Prior Amendments

1959: 24 F.R. 11082, Dec. 31.

(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) Aliens unable to establish nonimmigrant status. A nonimmigrant visa shall not be issued to an alien who has failed to overcome the presumption of immigrant status established by section 214(b) of the Act. An alien shall be considered to have established bona fide nonimmigrant status only if the consular officer is satisfied that his case falls within one of the nonimmigrant categories described in section 101(a) (15) of the Act or otherwise established by law or treaty.

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

(ii) 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 if required by the Act or the regulations contained in this part;

(v) The necessary fee is not paid for the issuance of a nonimmigrant visa; or

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

CODIFICATION: Paragraph (c) (1) was amended as follows:

1. Subdivision (ii) was amended by Dept. Reg. 108.422, 24 F.R. 11082, Dec. 31, 1959 and subsequently amended by Dept. Reg. 108.441, 25 F.R. 7019, July 23, 1960, and Dept. Reg. 108.469, 26 F.R. 6441, July 18, 1961.

2. Subdivision (iv) was amended by Dept. Reg. 108.433, 25 FR. 4579, May 25, 1960.

3. Former subdivision (v) was redesignated subdivision (vi) and a new subdivision (v) was added by Dept. Reg. 108.433, 25 F.R. 4579, May 25, 1960.

(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.

(d) Former exchange visitors. An alien who was admitted into the United Staves as an exchange visitor subsequent to June 4, 1956, or who otherwise acquired the status of an exchange visitor subsequent to June 4, 1956, including an alien granted an extension of the period of his temporary admission subsequent to September 20, 1956, shall not be eligible to apply for and receive a nonimmigrant visa under the provisions of section 101(a) (15) (H) of the Act notwithstanding the approval of a petition as provided in section 214 (c) of the Act unless (1) the consular officer is satisfied that for an aggregate of at least two years following the termination of his exchange visitor status the alien has resided and been physically present abroad in a foreign country as required by section 212(e) of the Act, or (2) the residence-abroad requirement of section 212(e) of the Act has been waived. (See §§ 63.6 and 63.7 of this chapter.)

(Sec. 212(e), 75 Stat. 527; 8 U.S.C. 1182) [Paragraph (d) amended by Dept. Reg. 108.471, 26 F.R. 9549, Oct. 10, 1961] Prior Amendments 1960: 25 FR. 7019, July 23.

(e) Grounds for refusal of visas applicable to certain nonimmigrant classes. (1) No visa may be issued in the A-1 or A-2 category to an alien who is considered by the Department to be persona non grata.

(2) Only those provisions of section 212(a) of the Act which are stated specifically with reference to each class apply to the following classes of non

immigrants: (i) Class A-1: Section 212 (a) (27) upon the direction of the President and the issuance of appropriate rules and regulations; (ii) Class A-2: Section 212 (a) (27) and (29); (iii) Class C-2: Section 212(a) (26) (A), (27), (28) and (29); (iv) Class C-3: Section 212(a) (26) (A), (27) and (29); (v) Class G-1: Section 212(a)(27); (vi) Classes G-2, G-3, and G-4: Section 212(a) (27) and (29); (vii) Class NATO-1: Section 212(a) (27); (viii) Classes NATO-2, NATO-3, NATO-4 and NATO-6; Section 212(a) (27) and (29).

[Subdivision (viii) amended by Dept. Reg. 108.433, 25 F.R. 4579, May 25, 1960]

(3) An alien within class A-3 or G-5 shall be subject to all grounds of refusal specified in section 212 of the Act which are applicable to nonimmigrants in general except paragraph (28) of subsection (a) of that section.

(f) Exception from passport validity requirement for certain nonimmigrants. A nonimmigrant alien in whose case the passport requirement of section 212(a) (26) has not been waived and

(1) Who is within one of the classes of nonimmigrants described in section 101(a) (15) (A) (i) and (ii) of the Act, or (2) Who is within one of the classes of nonimmigrants described in section 101 (a) (15) (G) (i), (ii), (iii), and (iv) of the Act, or

(3) Who is within a class of nonimmigrants classifiable under the visa symbol NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6,

shall present a passport which is valid for a sufficient period to enable the alien to apply for admission at a port of entry prior to its expiration.

[Paragraph (f) amended by Dept. Reg. 108.433, 25 F.R. 4579, May 25, 1960]

CROSS REFERENCE: For validity period of passport for alien classifiable under section 212(d)(8) of the Act, Dee § 41.6(e) (2). TEMPORARY ADMISSION OF INELIGIBLE

may, upon his own initiative, and shall, upon the request of the Secretary of State or upon the request of the alien, submit a report to the Department for possible transmission to the Attorney General pursuant to the provisions of section 212(d) (3) (A) of the Act in the case of an alien who is classifiable as a nonimmigrant but who is known or believed by the consular officer to be ineligible to receive a nonimmigrant visa under the provisions of section 212(a) of the Act, other than paragraph (27) or (29).

(b) A consular officer may, in certain categories defined by the Secretary of State, recommend directly to designated immigration officers that an alien's temporary admission be authorized under the provisions of section 212(d) (3) (A) of the Act.

(c) When the Attorney General authorizes the temporary admission of an ineligible alien as a nonimmigrant and the consular officer is so informed, the consular officer may proceed with the issuance of a nonimmigrant visa to the alien, subject to the conditions imposed by the Attorney General.

(Sec. 212, 66 Stat. 182; 8 U.S.C. 1182) [Dept. Reg. 108.48, 28 F.R. 274, Jan. 10, 1963] Prior Amendments 1959: 24 F.R. 11082, Dec. 31.

(a) An alien who is in possession of a diplomatic passport or its equivalent and who is within any of the following classes: (1) Heads of states and their alternates; (2) members of a reigning royal family; (3) governors-general, governors, high commissioners, and similar high administrative or executive officers of a territorial unit, and their alternates; (4) cabinet ministers and their assistants holding executive or administrative positions not inferior to that of the head of a departmental division, and their alternates; (5) presiding officers of chambers of national legislative bodies; (6) justices of the highest national court of a foreign country; (7) ambassadors, public ministers, other officers of the diplomatic service and consular officers of career; (8) military officers holding a rank not inferior to that of a brigadier general in the United States Army or Air Force and Naval officers holding a rank not inferior to that of a rear admiral in the United States Navy; (9) military, naval, air and other attachés and assistant attachés assigned to a foreign diplomatic mission; (10) officers of foreign-government delegations to international organizations so designated by Executive Order; (11) officers of foreign-government delegations to, and officers of, international bodies of an official nature, other than international organizations so designated by Executive Order; (12) officers of a diplomatic mission of a temporary character proceeding to or through the United States in the performance of their official duties; (13) officers of foreigngovernment delegations proceeding to or from a specific international conference of an official nature; (14) members of the immediate family of a principal alien who is within one of the classes described in subparagraphs (1) to (11) inclusive, of this paragraph; (15) members of the immediate family accompanying or following to join the principal alien who is within one of the classes described in subparagraphs (12) and (13) of this paragraph; (16) diplomatic couriers proceeding to or through the United States in the performance of their official duties;

[Paragraph (a) (6) amended by Dept. Reg. 108.422, 24 F.R. 11082, Dec. 31, 1959]

(b) Any other individual alien or class of aliens for whom the acceptance of an application for a diplomatic visa has been authorized by the Department or by the Chief of a United States Diplomatic Mission, the Deputy Chief of Mission, the Counselor for Consular Affairs or the principal officer of a consular post not under the jurisdiction of a diplomatic mission.

[Paragraph (b) amended by Dept. Reg. 108.492, 28 F.R. 3261, Apr. 4, 1963]

§ 41.104

Classes of aliens eligible to receive official visas.

A nonimmigrant within one of the following categories shall, if otherwise qualified, be eligible to receive an official visa irrespective of his classification under § 41.12:

(a) An alien within one of the following classes who is not eligible to receive a diplomatic visa:

(1) Aliens within a class described in 41.102 (a) who are ineligible to receive a diplomatic visa because they are not in possession of a diplomatic passport or its equivalent;

(2) Aliens classifiable under section 101(a) (15) (A) of the Act;

(3) Aliens classifiable under section 101 (a) (15) (G) of the Act, except those classifiable under section 101 (a) (15) (G) (iii) of the Act unless the government of which the alien is an accredited representative is recognized de jure by the United States;

(4) Aliens classifiable under section 101 (a) (15) (C) of the Act as nonimmigrants described in section 212(d) (8) of the Act;

(5) Members and members-elect of national legislative bodies;

(6) Justices of the lesser national and the highest state courts of a foreign country;