§211.4 Recording the entry of certain immigrant children admitted without immigrant visas.

When an immigrant alien who: (a) Is a child born subsequent to the issuance of an immigrant visa to his accompanying parent; or (b) is a child born during the temporary visit abroad of a mother who is a lawful permanent resident, or a national, of the United States, is admitted to the United States for lawful permanent residence without an immigrant visa, the admission shall be recorded on Form I-181.

[32 F.R. 9625, July 4, 1967. Redesignated at 41 F.R. 55849, Dec. 23, 1976]

§211.5 Alien commuters.

(a) General. Notwithstanding any other provision of this part, an alien lawfully admitted for permanent residence may commence or continue to reside in foreign contiguous territory and commute as a special immigrant defined in section 101(a)(27)(A) of the Act to his place of employment in the United States to engage in daily or seasonal work which, on the whole, is regular and stable: Provided, That at the time of each reentry he presents a valid Form I-151 in lieu of an immigrant visa and passport. An alien commuter engaged in seasonal work would be presumed to have taken up residence in the United States if he is present in this country for more than six months, in the aggregate, during any continuous 12-month period. An alien commuter's address report under section 265 of the Act must show his actual residence address even though it is not in the United States.

(b) Loss of commuter status. An alien commuter who has been out of regular employment in the United States for a continuous period of six months shall be deemed to have lost his status as an alien lawfully admitted for permanent residence, notwithstanding temporary entries in the interim for other than employment purposes, unless his employment in the United States was interrupted for reasons beyond his control other than lack of a job opportunity. Upon loss of status, Form I-151 shall become invalid and shall be surrendered to an immigration officer.

(c) Eligibility for benefits under the immigration and nationality laws. Until he has taken up residence in the United States, an alien commuter cannot satisfy the residence requirements of the naturalization laws and cannot qualify for any benefits under the immigration

laws on his own behalf or on behalf of his relatives other than as specified in paragraph (a). When an alien commuter takes up residence in the United States, he shall no longer be regarded as a commuter. He may facilitate proof of having taken up such residence by notifying the Service as soon as possible, preferably at the time of his first reentry for that purpose. Application for issuance of a new alien registration receipt card to show that he has taken up residence in the United States shall be made on Form I-90.

(d) Labor disputes. When the Secretary of Labor determines and announces that a labor dispute involving a work stoppage or layoff of employees is in progress at a named place of employment, Form I-151 shall not be acceptable in lieu of an immigrant visa or reentry permit when presented by an alien commuter who has departed for and seeks reentry from any foreign place and who, prior to his departure or during his temporary absence abroad has in any manner entered into an arrangement to return to the United States for the primary purpose, or seeks reentry with the intention of accepting employment at the place where the Secretary of Labor has determined that a labor dispute exists, or of continuing employment which commenced at such place subsequent to the date of the Secretary of Labor's determination.

[40 F.R. 34106, Aug. 14, 1975. Redesignated and amended at 41 F.R. 55849, Dec. 23, 1976]

PART 212-DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE.

Sec.

212.1 Documentary requirements for nonimmigrants.

212.2 Consent to reapply for admission after deportation, removal or departure at Govern

ment expense.

212.3 Application for the exercise of discretion under section 212(c).

212.4 Applications for the exercise of discretion under section 212(d)(3).

212.5 Parole of aliens into the United States. 212.6 Nonresident alien border crossing cards. 212.7 Waiver of certain grounds of excludability. 212.8 Certification requirement of section 212(a)(14).

AUTHORITY: The provisions of this Part 212 issued under secs. 101, 103, 212, 214, 235, 236, 238, 242, 66 Stat. 166, 173, 182, as amended, 189, 198, 200, 202, 208, as amended, 8 U.S.C. 1101, 1103, 1182, 1184, 1225, 1226, 1228, 1252, 1182b, 1182c.

§212.1 Documentary requirements for nonimmigrants.

A valid unexpired visa and an unexpired passport, valid for the period set forth in section 212(a)(26) of the Act, shall be presented by each arriving nonimmigrant alien except that the passport validity period for an applicant for admission who is a member of a class described in section 102 of the Act is not required to extend beyond the date of his application for admission if so admitted, and except as otherwise provided in the Act, this chapter, and for the following classes:

(a) Canadian nationals, and aliens having a common nationality with nationals of Canada or with British subjects in Bermuda, Bahamian nationals or British subjects resident in Bahamas, Cayman Islands, and Turks and Caicos Islands. A visa is not required of a Canadian national, and a passport is not required of such a national except after a visit outside of the Western Hemisphere. A visa is not required of an alien having a common nationality with Canadian nationals or with British subjects in Bermuda, who has his residence in Canada or Bermuda, and a passport is not required of such an alien except after a visit outside of the Western Hemisphere. A visa and a passport are required of a Bahamian national or a British subject who has his residence in the Bahamas except that a visa is not required of such an alien who, prior to or at the time of embarkation for the United States on a vessel or aircraft, satisfies the examining United States immigration officer at Nassau, Bahamas, that he is clearly and beyond a doubt entitled to admission in all other respects. A visa is not required of a British subject who has his residence in, and arrives directly from, the Cayman Islands or the Turks and Caicos Islands and who presents a current certificate from the Clerk of Court of the Cayman Islands or the Turks and Caicos Islands indicating no criminal record.

(b) British, French, and Netherlands nationals, and nationals of certain adjacent islands of the Caribbean which are independent countries. A visa is not required of a British, French, or Netherlands national-or of a national of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who has his residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or Trinidad and Tobago, who: (1) Is proceeding to the United States as an agricultural worker; or (2) is the beneficiary of a valid,

unexpired indefinite certification granted by the Department of Labor for employment in the Virgin Islands of the United States and is proceeding to the Virgin Islands of the United States for such purpose, or is the spouse or child of such an alien accompanying or following to join him. A visa is not required of a national of the British Virgin Islands who has his residence in the British Virgin Islands, and who is proceeding to the Virgin Islands of the United States.

(c) Mexican nationals. A visa and a passport are not required of a Mexican national who is in possession of a border crossing card on Form I-186 and is applying for admission as a temporary visitor for business or pleasure from contiguous territory; or is entering solely for the purpose of applying for a Mexican passport or other official Mexican document at a Mexican consular office on the United States side of the border. A visa is not required of a Mexican national who is in possession of a border crossing card and is applying for admission to the United States as a temporary visitor for business or pleasure from other than contiguous territory. A visa is not required of a Mexican national who is a crewman employed on an aircraft belonging to a Mexican company authorized to engage in commercial transportation into the United States.

(c-1) Aliens entering pursuant to International Boundary and Water Commission Treaty. A visa and a passport are not required of an alien employed either directly or indirectly on the construction, operation, or maintenance of works in the United States undertaken in accordance with the treaty concluded on February 3, 1944, between the United States and Mexico regarding the functions of the International Boundary and Water Commission, and entering the United States temporarily in connection with such employment.

(d) Natives and residents of the Trust Territory of the Pacific Islands. A visa and a passport are not required of a native and resident of the Trust Territory of the Pacific Islands who has proceeded in direct and continuous transit from the Trust Territory to the United States.

(e) Direct transits—(1) Transit without visa. A passport and visa are not required of an alien who is being transported in immediate and continuous transit through the United States in accordance with the terms of an agreement entered into between the transportation line and the Service under the provisions of section 238(d) of the Act on Form I-426 to insure such immediate and continuous

transit through, and departure from, the United States en route to a specifically designated foreign country: Provided, That such alien is in possession of a travel document or documents establishing his identity and nationality and ability to enter some country other than the United States. This waiver of visa and passport requirements is not available to an alien who is a citizen of Cuba. This waiver of visa and passport requirements is not available to an alien who is a citizen of North Korea ("Democratic Peoples' Republic of Korea") or North Viet Nam ("Democratic Republic of Viet Nam"), and is a resident of one of said countries, and is, on a basis of reciprocity, available to a national of Albania, Bulgaria, Czechoslovakia, Estonia, the German Democratic Republic, Hungary, Latvia, Luthuania, Mongolian People's Republic, People's Republic of China, Poland, Romania, or the Union of Soviet Socialist Republics resident in one of said countries, only if he is transiting the United States by aircraft of a transportation line signatory to an agreement with the Service on Form 1-426 on a direct through flight which will depart directly to a foreign place from the port of arrival.

(2) Foreign government officials in transit. If an alien is of the class described in section 212(d)(8) of the Act only a valid unexpired visa and a travel document valid for entry into a foreign country for at least 30 days from the date of admission to the United States are required.

(f) Unforeseen emergency. A visa and a passport are not required of a nonimmigrant who, either prior to his embarkation at a foreign port or place or at the time of arrival at a port of entry in the United States, satisfies the district director at the port of entry (after consultation with and concurrence by the Director of the Visa Office of the Department of State) that, because of an unforeseen emergency, he was unable to obtain the required documents, in which case a waiver application shall be made on Form 1-193. The district director or the Deputy Commissioner may at any time revoke a waiver previously authorized pursuant to this paragraph and notify the nonimmigrant in writing to that effect. Any waiver of the visa requirement heretofore or hereafter granted pursuant to section 212(d)(4)(A) of the Act in the case of a national or resident of Cuba who embarks for the United States on or after November 16, 1963, shall not be valid unless such national or resident proceeds directly from Cuba to the United States and

has been inspected in Cuba by officials of the United States Immigration and Naturalization Service and of the United States Public Health Service immediately prior to his departure for the United States, irrespective of whether such national or resident had prior notice of these conditions.

(g) Fiancees or fiances of U.S. citizens. Notwithstanding any of the provisions of this part, an alien seeking admission as a fiancee or fiance of a U.S. citizen pursuant to section 101(a)(15)(K) of the Act shall be in possession of a nonimmigrant visa issued by an American consular officer classifying the alien under that section.

(h) [Reserved]

(i) Officers authorized to act upon recommendations of United States consular officers for waiver of visa and passport requirements. All district directors, the officers in charge at Blaine, Wash.; Noyes, Minn.; Niagara Falls, N.Y.; Calexico, Calif.; San Diego Border Station, Calif.; San Diego, Calif.; Douglas, Ariz., Naco, Ariz.; Nogales, Ariz.; San Luis, Ariz., Brownsville, Tex.; Del Rio, Tex.; Eagle Pass, Tex.; Hidalgo, Tex.; Laredo, Tex., and Roma, Tex., and all officers in charge of Service offices outside the United States are authorized to act upon recommendations made by U.S. consular officers or by officers of the Visa Office, Department of State, pursuant to the provisions of 22 CFR 41.7 for waiver of visa and passport requirements under the provisions of section 212(d)(4)(A) of the Act. The District Director at Washington, D.C., has jurisdiction in such cases recommended to the Service at the seat of Government level by the Department of State. Neither an application nor fee are required if the concurrence in a passport or visa waiver is requested by a U.S. consular officer or by an officer of the Visa Office. The district director or the Deputy Commissioner, may at any time revoke a waiver previously authorized pursuant to this paragraph and notify the nonimmigrant alien in writing to that effect.

(j) Cancellation of nonimmigrant visas by immigration officers. Upon receipt of advice from the Department of State that a nonimmigrant visa has been revoked on invalidated, and request by that Department for such action, immigration officers shall place an appropriate endorsement thereon.

[26 F.R. 12066, Dec. 16, 1961; 27 F.R. 2360, Mar. 13, 1962; 28 F.R. 11533, Oct. 30, 1963; 28 F.R. 12202, Nov. 16, 1963; 32 F.R. 3731, Mar. 4, 1967; 32 F.R. 7743, May 27, 1967; 32 F.R. 9625, July 4,

1967; 32 F.R. 10433, July 15, 1967; 33 F.R. 3370, Feb. 27, 1968; 35 F.R. 5958, Apr. 10, 1970; 37 F.R. 7697, Apr. 21, 1972; 37 F.R. 11052, June 2, 1972; 38 F.R. 18868, July 16, 1973; 38 F.R. 21172, Aug. 6, 1973; 39 F.R. 27555, July 30, 1974; 39 F.R. 38890, Nov. 4, 1974; 40 F.R. 30470, July 21, 1975; 40 F.R. 33431, Aug. 8, 1975]

at

§212.2 Consent to reapply for admission after deportation, removal or departure Government expense.

(a) Alien applying to consular officer for nonimmigrant visa or nonresident border crossing card. Permission to reapply for admission to the United States after deportation or removal for an alien who is applying or will apply to a consular officer for a nonimmigrant visa or a nonresident border crossing card shall be requested through the consular officer and may be granted only in accordance with section 212(d)(3)(A) of the Act and § 212.4. However, the alien may apply for such permission on Form 1-212 submitted to the consular officer, if the consular officer is willing to accept such application and if that officer, in forwarding Form I-212 for decision to the district director having jurisdiction over the place where the deportation or removal proceedings were held, recommends to the district director that the alien be permitted to apply on Form I-212.

(b) Applicant for nonimmigrant visa under section 101(a)(15)(K) of the Act. Notwithstanding the provisions of paragraph (a) of this section, an applicant for a nonimmigrant visa under section 101(a)(15)(K) of the Act who is the beneficiary of a valid visa petition approved by the Service to accord classification under that section shall apply for permission to reapply for admission to the United States after deportation or removal by submitting Form I-212 to the consular officer. The consular officer will forward the Form I-212 to the Service officer having jurisdiction over the area within which the consular officer is located. If the alien is ineligible on grounds which may be waived under section 212(g), (h), or (i) of the Act upon the applicant's marriage to the U.S. citizen petitioner, the consular officer will also forward his recommendation whether the benefits of section 212(d)(3)(A) of the Act shall be accorded to authorize the applicant's temporary admission to the United States despite those grounds.

(c) Applicant for immigrant visa. An applicant for an immigrant visa applying for permission to reapply shall file Form I-212 with the district director having jurisdiction over the

place where the deportation ог removal proceedings were held, except that when Form I-212 is filed in conjunction with a request for a waiver under section 212(g), (h), or (i) of the Act, the Form I-212 and the application for the waiver shall be filed simultaneously with the American consul who will forward it to the appropriate Service officer abroad having jurisdiction over the area within which the consul is located.

(d) Applicant for adjustment of status. An applicant for adjustment of status under section 245 of the Act and Part 245 of this chapter applying for permission to reapply in conjunction with his application for adjustment of status shall file Form I-212 with the district director having jurisdiction over the place where the alien resides. If the application under section 245 of the Act has been initiated, renewed, or is pending in a proceeding before a special inquiry officer, the district director shall refer the Form I-212 to the special inquiry officer for adjudication.

(e) Applicant for admission at port of entry. Permission to reapply for admission to the United States after deportation or removal for an alien seeking admission at a port of entry shall be requested by such alien by filing Form I-192 with the district director having jurisdiction over the port of entry if the alien is seeking temporary admission, or Form I-212 if the alien is seeking lawful admission for permanent residence. However, the district director may in his discretion authorize an alien seeking temporary admission at a port of entry to apply on Form I-212 for permission to reapply after deportation or removal.

(f) Other applicants. An applicant for permission to reapply for admission under circumstances other than those described in paragraph (a), (b), (c), (d), or (e) of this section shall file Form I-212 with the district director having jurisdiction over the place where the deportation or removal proceedings were held, or with the district director who exercised or is exercising jurisdiction over the most recent proceeding relating to the applicant. If the Service file relating to the applicant is no longer within the district in which the application is filed, the application shall be forwarded for decision to the district director in whose district the file is located.

(g) Decision. An applicant who has submitted Form I-212 shall be notified of the decision and, if the application is denied, of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103

of this chapter. Denial of the application, except in the case of an applicant seeking to be granted advance permission to reapply for admission prior to his departure from the United States, shall be without prejudice to the renewal of the application in the course of proceedings before a special inquiry officer under section 242 of the Act and this chapter. (h) Retroactive approval. The approval of a Form 1-212 application filed by an alien seeking admission to the United States at a port of entry, or by an alien in conjunction with an application for adjustment of status under section 245 of the Act, shall be considered as retroactive to the date on which the alien embarked or reembarked at a place outside the United States or attempted to be admitted from foreign contiguous territory.

(i) Advance approval. The approval of an application filed by an alien whose departure will execute an order of deportation shall be conditioned upon his departure from the United States; otherwise, the approval shall not be conditioned or limited. However, the grant of permission to reapply does not waive inadmissibility under section 212(a) (16) or (17) of the Act resulting from exclusion, deportation, or removal proceedings which are instituted subsequent to the date permission to reapply is granted.

[36 F.R. 11635, June 17, 1971, as amended at 39 F.R. 10885, Mar. 22, 1974]

$212.3 Application for the exercise of discretion under section 212(c).

An application for the exercise of discretion under section 212(c) of the act shall be submitted on Form I-191 to the district director in charge of the area in which the applicant's intended or actual place of residence in the United States is located prior to, at the time of, or at any time subsequent to the applicant's arrival in the United States. The applicant shall be notified of the decision and if the application is denied of the reason therefor and of his right to appeal to the Board within 15 days after the mailing of the notification of decision in accordance with the provisions of Part 3 of this chapter. If denied, the denial shall be without prejudice to renewal of the application in the course of proceedings before a special inquiry officer under sections 235, 236, and 242 of the act and this chapter. An application for the exercise of discretion under section 212(c) of the Act may be submitted by the applicant to a special inquiry officer in the course of proceedings before him under sec

tions 235, 236, and 242 of the Act and this chapter, and shall be adjudicated by the special inquiry officer in such proceedings, regardless of whether the applicant has made such application previously to the district director. When an appeal may not be taken from a decision of a special inquiry officer excluding an alien, but the alien has applied for the exercise of discretion under section 212(c) of the act, the alien may appeal to the Board from a denial of such application in accordance with the provisions of §236.5(b) of this chapter.

[23 F.R. 141, Jan. 8, 1958, as amended at 23 F.R. 2670, Apr. 23, 1958; 23 F.R. 9122, Nov. 26, 1958; 30 F.R. 14526, Nov. 20, 1965]

§212.4 Applications for the exercise of discretion under section 212(d)(3).

(a) Applications under section 212(d)(3)(A). District directors in the United States and officers in charge outside the United States in Hong Kong, B.C.C.; Frankfurt, Germany; Mexico, D.F., Mexico; and Rome, Italy, districts are authorized to act upon recommendations made by consular officers for the exercise of discretion under section 212(d)(3)(A) of the Act. The District Director, Washington, D.C., has jurisdiction in such cases recommended to the Service at the seat-of-government level by the Department of State. When a consular officer or other State Department official recommends that the benefits of section 212(d)(3)(A) of the Act be accorded an alien, neither an application nor fees shall be required. The recommendation shall specify (1) the reasons for inadmissibility and each section of law under which the alien is inadmissible; (2) each intended date of arrival; (3) the length of each proposed stay in the United States; (4) the purpose of each stay; (5) the number of entries which the alien intends to make, and (6) the justification for exercising the authority contained in section 212(d)(3) of the Act. If the alien desires to make multiple entries and the consular officer or other State Department official believes that the circumstances justify the issuance of a visa valid for multiple entries rather than for a specified number of entries, and recommends that the alien be accorded an authorization valid for multiple entries, the information required by items (2) and (3) shall be furnished only with respect to the initial entry. Item (2) does not apply to a bona fide crewman. The consular officer or other State Department official shall be notified of the decision on his recommen