Code of Federal Regulations: Containing a Codification of Documents of ...

the relationship to accord preference status under section 203(a)(4) of the Act.

(7) Upon the marriage of a beneficiary accorded preference status as a son or daughter of a United States citizen under section 203(a)(1) of the Act; however, such petition is valid for the duration of the relationship to accord preference status under section 203(a)(4) of the Act.

(8) Upon the marriage of a beneficiary accorded a status as a son or daughter of a lawful resident alien under section 203(a)(2) of the Act.

(9) [Revoked]

(b) Petitions under section 203(a) (3) or (6). (1) Upon invalidation pursuant to 20 CFR Part 656 of the labor certification in support of the petition.

(2) Upon the death of the petitioner or beneficiary.

(3) Upon formal notice of withdrawal filed by the beneficiary with the officer who approved the petition in a third-preference case.

(4) Upon formal notice of withdrawal filed by the petitioner with the officer who approved the petition in a sixth-preference case.

(5) Upon termination of the employer's business in a sixth-preference case.

petitioner shall be informed of the decision with the reasons therefor and shall have 15 days after the service of the notification of decision within which to appeal as provided in Part 3 of this chapter, if the petition was filed for a preference under paragraph (1), (2), (4), or (5) of section 203(a) of the Act, or for an immediate relative as defined in section 201(b) of the Act other than a child as defined in section 101(b)(1)(F) of the Act, or as provided in Part 103 of this chapter, if the petition was filed for a preference under paragraph (3) or (6) of section 203(a) of the Act, or for a child as defined in section 101(b)(1)(F) of the Act, and the consular office having jurisdiction over the visa application shall be notified of the revocation. [37 F.R. 11470, June 8, 1972]

PART 211-DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

Sec.

211.1 Visas. 211.2 Passports 211.3 Expiration of immigrant visas, reentry permits, refugee travel document, and Forms I-151.

211.4 Recording the entry of certain immigrant children admitted without immigrant visas. 211.5 Alien commuters.

AUTHORITY: The provisions of this Part 211 issued under secs. 101, 103, 211, 212, 223, 235, 247, 66 Stat. 166, as amended, 173, 181, 182, as amended, 194, 198, 218; 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257.

§211.1 Visas.

(a) General. A valid unexpired immigrant visa shall be presented by each arriving immigrant alien applying for admission to the United States for lawful permanent residence, except as immigrant alien who: (1) Is a child born subsequent to the issuance of an immigrant visa to his accompanying parent and applies for admission during the validity of such a visa; or (2) is a child born during the temporary visit abroad of a mother who is a lawful permanent resident alien, or a national, of the United States, provided the child's application for admission to the United States is made within 2 years of his birth, the child is accompanied by his parent who is applying for readmission as a permanent resident upon the first return of the parent to the United States after the birth of the child, and the accompanying parent is found to be admissible to the United States.

PART 205-REVOCATION OF APPROVAL OF PETITIONS

$204.6 Effect of changed employment on priority date.

(a) Petition for third preference classification. When the beneficiary of an approved third preference petition no longer intends to accept employment with the prospective employer or the offer of employment is withdrawn, the petition shall be deemed invalid and the beneficiary shall no longer be entitled to a priority date as of the date of filing of the petition. However, upon submission of a new Job Offer for Alien Employment form, and an individual labor certification under section 212(a)(14) in the case of an occupation not listed in Schedule A, the petition shall be deemed reinstated with the original priority date. The provisions of the paragraph shall not apply when the original petition has been revoked under section 203(e) of the Act.

(b) Petition for sixth preference classification. When a new petition by another employer is approved in behalf of the beneficiary of a previously approved sixth-preference petition, and the beneficiary has accepted or intends to accept employment with the new petitioner, the beneficiary shall no longer be entitled to a priority date as of the date of filing of the original petition and that petition shall be deemed invalid. Instead, his priority date shall be the date of filing of the subsequently approved petition for sixth-preference classification. However, the original petition shall be deemed reinstated and the original priority date shall be restored if the beneficiary returns to the original petitioner's employment or established that he intends upon arrival in the United States to be employed by the original employed as specified in the original petition. The provisions of this paragraph shall not apply when the original petition has been revoked under section 203(e) of the Act. [41 F.R. 55849, Dec. 23, 1976]

$204.7 Preservation of benefits contained in

savings clause of Immigration and Nationality Act Amendments of 1976.

In order to be considered eligible for the benefits of the savings clause contained in section 9 of the Immigration and Nationality Act Amendments of 1976, an alien must show that the facts established prior to January 1, 1977 upon which the entitlement to such benefits was based continue to exist. [41 F.R. 55849, Dec. 23, 1976]

The approval of a petition made under section 204 of the Act and in accordance with Part 204 of this chapter is revoked as of the date of approval if the Secretary of State shall terminate the registration of any beneficiary pursuant to the provisions of section 203(e) of the Act or if any of the following circumstances occur before the beneficiary's journey to the United States commences or, if the beneficiary is an applicant for adjustment of status to that of a permanent resident, before the decision on his application becomes final:

(a) Relative petitions. (1) Upon formal notice of withdrawal filed by the petitioner with the officer who approved the petition.

(2) Upon the death of the petitioner or beneficiary.

(3) Upon the death of the petitioner unless the Attorney General in his discretion determines that for humanitarian reasons revocation would be inappropriate.

(4) Upon the legal termination of the relationship of husband and wife when a petition has accorded status as the spouse of a citizen or lawful resident alien, respectively, under section 201(b), or section 203(a)(2) of the Act.

(5) Upon a child beneficiary reaching the age of 21, when he has been accorded immediate relative status under section 201(b) of the Act; however, such petition is valid for the duration of the relationship to accord preference status under section 203(a)(1) of the Act if the beneficiary remains unmarried, or to accord preference status under section 203(a)(4) of the Act if he marries.

(6) Upon the marriage of a beneficiary accorded status as the child of a United States citizen under section 201(b) of the Act; however, such petition is valid for the duration of

the relationship to accord preference status under section 203(a)(4) of the Act.

(8) Upon the marriage of a beneficiary accorded a status as a son or daughter of a lawful resident alien under section 203(a)(2) of the Act.

(9) [Revoked]

(b) Petitions under section 203(a) (3) or (6). (1) Upon invalidation pursuant to 20 CFR Part 656 of the labor certification in support of the petition.

(2) Upon the death of the petitioner or beneficiary.

(3) Upon formal notice of withdrawal filed by the beneficiary with the officer who approved the petition in a third-preference case.

(4) Upon formal notice of withdrawal filed by the petitioner with the officer who approved the petition in a sixth-preference case. (5) Upon termination of the employer's business in a sixth-preference case.

(b) Aliens returning to an unrelinquished lawful permanent residence-(1) Form I-151, Alien Registration Receipt Card. In lieu of an immigrant visa, an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding one year may present Form I-151, Alien Registration Receipt Card, duly issued to him, provided that during such absence he did not travel to, in, or through any of the following places: Cuba and Communist portions of Korea or Viet-Nam, and except for children who have not attained the age of 16 at the time they apply for admission into the United States, Albania, Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Outer Mongolia, People's Republic of China, Poland, Romania, the Soviet Zone of Germany (“German Democratic Republic"), the Union of Soviet Socialist Republics, or Yugoslavia. The foregoing restrictions shall not apply when the alien has passed in direct and continuous transit through the Soviet Zone of Germany to Berlin from West Germany by automobile, rail, or plane and returned to West Germany; or when the alien has passed in direct and continuous transit through Yugoslavia to or from Austria, Greece, or Italy. An alien regularly serving as a crewman in any capacity required for normal operations and services aboard an aircraft or vessel of American registry who is returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding one year may, in lieu of an immigrant visa, present Form I-151, duly issued to him, notwithstanding travel to, in, or through any of the restricted places named in this subparagraph pursuant to his employment as a crewman. An alien who proceeded abroad temporarily without a reentry permit and in whose case subsequent to his departure from the United States the Department of State has approved travel to, in, or through Cuba, or Communist portions of Korea or Viet-Nam, may, in lieu of an immigrant visa or reentry permit, present Form I-151 together with the letter from the Department of State approving his travel to, in, or through the place or places named in the letter, if he is returning to an unrelinguished lawful permanent residence in the United States after a temporary absence abroad not exceeding one year. An alien who proceeded abroad temporarily without reentry permit and in whose case subsequent to his departure from and prior to his return to the United States the Service has approved travel to, in, or through any of the other place

or places named in this subparagraph for which Form I-151 is not valid may, in lieu of an immigrant visa or reentry permit, present Form I-151 together with the letter from an officer of the Service approving his travel to, in, or through the place or places named in the letter, if he is returning to an unrelinquished lawful permanent residence of the United States after a temporary absence abroad not exceeding one year. When returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad, a spouse or child of a member of the Armed Forces of the United States or of a civilian employee of the United States Government stationed foreign pursuant to official orders may, in lieu of an immigrant visa, present Form I-151, provided such spouse or child resided abroad while such member of the Armed Forces or such civilian employee was on overseas duty and is preceding or accompanying the member or employee, or is following to join the member or employee in the United States within 4 months of the member's or employee's return, and during the temporary absence did not travel to, in, or through any of the restricted places named in this subparagraph, except those named places concerning which the restrictions do not apply when an alien has passed in direct and continuous transit through such areas.

(2) Reentry permit. In lieu of an immigrant visa, an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad may present a valid, unexpired reentry permit duly issued to him. A lawful permanent resident alien who, prior to his departure from the United States for a temporary absence abroad, intends to travel to, in, or through any restricted place or places named in subparagraph (1) of this paragraph shall apply for a reentry permit. A reentry permit shall be invalid when presented by an alien who, during his temporary absence abroad, traveled to, in, or through Cuba, or Communist portions of Korea of Viet-Nam, unless his permit bears an endorsement, or he presents a letter issued to him by the Department of State, stating that the restriction with regard to any such place or places has been waived. A waiver of the restriction will not be authorized unless the Secretary of State has granted the alien permission to travel to, in, or through any such place or places. A refugee travel document issued pursuant to Part 223a of this chapter to a lawful permanent resident shall be regarded as a reentry permit.

(3) Waiver of visas. An immigrant alien returning to an unrelinquished lawful per

manent residence in the United States after a temporary absence abroad who satisfies the district director in charge of the port of entry that there is good cause for his failure to present an immigrant visa, Form I-151, or reentry permit may, upon application on Form I-193, be granted a waiver of that requirement. If the alien has traveled to, in, or through Cuba, or Communist portions of Korea or Viet-Nam, a waiver will not be authorized unless the Secretary of State has granted the alien permission to travel to, in, or through any such place or places. If the returning resident alien is not presenting Form I-151 because he has lost it, a Form I-90, (application for a replacement Form I-151) in duplicate, may be filed with the district director having jurisdiction over the port of entry who may in his discretion grant or deny without appeal a waiver of the required immigrant visa, reentry permit or Form I-151, by an immigrant alien who is returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding one year; filing the I-90 will serve not only as an application for replacement but also as an application for waiver of passport and visa without the necessity of a separate filing of Form I-193. An alien who is granted a waiver under this part upon presentation of Form I-90 shall, after admission into the United States, comply with the requirements of §264.1(c) of this chapter.

(c) Immigrants having occupational status defined in section 101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry permit, or Form I-151 shall be invalid when presented by an alien who has an occupational status under section 101(a)(15) (A), (E), or (G) of the Act, unless he has previously submitted, or submits at the time he applies for admission to the United States, the written waiver required by section 247(b) of the Act and Part 247 of this chapter.

[31 F.R. 13387, Oct. 15, 1966, as amended at 32 F.R. 408, Jan. 14, 1967; 36 F.R. 1247, Jan. 27, 1971; 36 F.R. 22145, Nov. 20, 1971; 38 F.R. 8238, Mar. 30, 1973; 40 F.R. 21700, May 19, 1975; 40 F.R. 34106, Aug. 14, 1975]

§211.2 Passports.

A passport valid for the bearer's entry into a foreign country at least 60 days beyond the expiration date of this immigrant visa shall be presented by each immigrant except an immigrant who (a) is the parent, spouse, or un

married son or daughter of a United States citizen or of an alien lawful permanent resident of the United States, or (b) is a child born during the temporary visit abroad of a mother who is a lawful permanent resident alien, or a national, of the United States, provided the child's application for admission to the United States is made within two years of his birth, the child is accompanied by his parent who is applying for readmission as a permanent resident upon the first return of the parent to the United States after the birth of the child, and the accompanying parent is found to be admissible to the United States, or (c) is returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad, or (d) is a stateless person or a person who because of his opposition to Communism is unwilling or unable to obtain a passport from the country of his nationality or is the accompanying spouse or unmarried son or daughter of such immigrant, or (e) is a third-preference immigrant, or (f) is a member of the Armed Forces of the United States, or (g) satisfies the district director in charge of the port of entry that there is good cause for failure to present the required document, in which case an application for waiver shall be made on Form I-193. [29 F.R. 10578, July 30, 1964, as amended at 30 F.R. 14776, Nov. 30, 1965]

§211.3 Expiration of immigrant visas, reentry permits, refugee travel document, and Forms I-151.

An immigrant visa, reentry permit, refugee travel document, or Form I-151 shall be regarded as unexpired if the rightful holder embarked or enplaned before the expiration of his immigrant visa, reentry permit, or refugee travel document, or, with respect to Form I151, before the first anniversary of the date on which he departed from the United States: Provided, That the vessel or aircraft on which he so embarked or enplaned arrives in the United States or foreign contiguous territory on a continuous voyage. The continuity of the voyage shall not be deemed to have been interrupted by scheduled or emergency stops of the vessel or aircraft en route to the United States or foreign contiguous territory, or by a layover in foreign contiguous territory necessitated solely for the purpose of effecting a transportation connection to the United States. [29 F.R. 10578, July 30, 1964, as amended at 38 F.R. 8238, Mar. 30, 1973]

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