an extension. In extending the period of validity, the officer shall make an appropriate notation on the visa of the new expiration date, sign the document with title indicated, and impress the seal of the office thereon.

(c) No fee for extension of period of validity. No fee shall be charged for extending the period of validity of an immigrant visa.

(d) Age and marital status in relation to validity of certain immigrant visas. In accordance with § 42.64(b), the validity of a visa may not extend beyond a date sixty days prior to the expiration of the passport. The period of validity of a visa issued to an immigrant as a child shall not extend beyond the day immediately proceding the date on which the alien becomes 21 years of age. The consular officer shall warn an alien, when appropriate, that the alien will be admissible as such an immigrant only if unmarried and under 21 years of age at the time of application for admission at a U.S. port of entry. The consular officer shall also warn an alien issued a visa as a first or second preference immigrant as an unmarried son or daughter of a citizen or lawful permanent resident of the United States that the alien will be admissible as such an immigrant only if unmarried at the time of application for admission at a U.S. port of entry.

§ 42.73 Procedure in issuing visas.

(a) Insertion of data. In issuing an immigrant visa, the issuing office shall insert the pertinent information in the designated blank spaces provided on Form OF-155A, Immigrant Visa and Alien Registration, in accordance with the instructions contained in this section.

(1) A symbol as specified in § 42.11 shall be used to indicate the classification of the immigrant.

(2) An immigrant visa issued to an alien subject to numerical limitations shall bear a number allocated by the Department. The foreign state or dependent area limitation to which the alien is chargeable shall be entered in the space provided.

(3) No entry need be made in the space provided for foreign state or other applicable area limitation on

visas issued to immediate relatives under INA 201(b) or special immigrants under INA 101(a)(27), but such visas may be numbered if a post voluntarily uses a consecutive post numbering system.

(4) The date of issuance and the date of expiration of the visa shall be inserted in the proper places on the visa and show the day, month, and year in that order, with the name of the month spelled out, as in "24 December 1986."

(5) In the event the passport requirement has been waived under § 42.2, a notation shall be inserted in the space provided for the passport number, setting forth the authority (section and paragraph) under which the passport was waived.

(6) A signed photograph shall be attached in the space provided on Form OF-155A by the use of a legend machine, unless specific authorization has been granted by the Department to use the impression seal.

(b) Documents comprising an immigrant visa. An immigrant visa consists of Form OF-155A and Form OF-230, Application for Immigrant Visa and Alien Registration, properly executed, and a copy of each document required pursuant to § 42.63.

(c) Arrangement of visa documentation. Form OF-155A shall be placed immediately above Form OF-230 and the supporting documents attached thereto. Any document required to be attached to the visa, if furnished to the consular officer by the alien's sponsor or other person with a request that the contents not be divulged to the visa applicant, shall be placed in an envelope and sealed with the impression seal of the consular office before being attached to the visa. If an immigrant visa is issued to an alien in possession of a United States reentry permit, valid or expired, the consular officer shall attach the permit to the immigrant visa for disposition by INS at the port of entry. (Documents having no bearing on the alien's qualifications or eligiblity to receive a visa may be returned to the alien or to the person who furnished them.)

(d) Signature, seal, and issuance of visa. The consular officer shall sign the visa (Form OF-155A) and impress

the seal of the office on it so as to partially cover the photograph and the signature. The immigrant visa shall then be issued by delivery to the immigrant or the immigrant's authorized agent or representative.

§ 42.74 Issuance of new or replacement visas.

(a) New immigrant visa for an alien not subject to numerical limitation. An immediate relative under INA 201(b), or a special immigrant under INA 101(a)(27), who establishes that a visa has been lost or mutilated or has expired, or that the alien will be unable to use it during the period of its validity, may be issued a new visa at the same or any other consular office, if the consular officer then finds the alien qualified. The alien must pay anew the statutory application and issuance fees. Prior to issuing a new immigrant visa at a consular office other than the one that issued the original visa, the consular officer must also ascertain whether the original issuing office knows of any reason why a new visa should not be issued.

(b) Replacement immigrant visa for an alien subject to numerical limitation. An immigrant documented under INA 203(a) who was or will be unable to use the visa during the period of its validity because of reasons beyond the alien's control and for which the alien is not responsible may be issued a replacement immigrant visa under the original number during the same fiscal year in which the original visa was issued (provided the number has not been returned to the Department), if the consular officer then finds the alien qualified. The alien must pay anew the statutory application and issuance fees. Prior to issuing a replacement immigrant visa at a consular office other than the one that issued the original visa, the consular officer must also ascertain whether the original issuing office knows of any reason why a replacement visa should not be issued. In issuing a visa under this paragraph, the consular officer shall insert the word "REPLACE" on Form OF-155A, Immigrant Visa and Alien Registration, before the word "IMMIGRANT" in the title of the visa.

(c) Duplicate visas issued within the validity period of the original visa. If the validity of a visa previously issued has not yet terminated and the original visa has been lost or mutilated, a duplicate visa may be issued containing all of the information appearing on the original visa, including the original issuance and expiration dates. The applicant shall execute a new application and provide copies of the supporting documents submitted in support of the original application. The alien must pay anew the application and issuance fees. In issuing a visa under this paragraph, the consular officer shall insert the word "DUPLICATE" on Form OF-155A before the word "IMMIGRANT" in the title of the visa.

Subpart I-Refusal, Revocation, and Termination of Registration

§ 42.81 Procedure in refusing individual visas.

(a) Issuance or refusal mandatory. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer shall either issue or refuse the visa. Every refusal shall be in conformance with the provisions of 22 CFR 40.6.

(b) Refusal procedure. A consular officer may not refuse an immigrant visa until Form OF-230, Application for Immigrant Visa and Alien Registration, has been executed by the applicant. When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrative relief is available. Each document related to the refusal shall then be attached to Form OF-230 for retention in the refusal files. Any documents not related to the refusal shall be returned to the applicant. If the grounds of ineligibility

may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal has not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.

(c) Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.

(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988]

§ 42.82 Revocation of visas.

(a) Grounds for revocation. Consular officers are authorized to revoke an immigrant visa under the following circumstances:

(1) The consular officer knows, or after investigation is satisfied, that the visa was procured by fraud, a willfully false or misleading representation, the willful concealment of a material fact, or other unlawful means;

(2) The consular officer obtains information establishing that the alien was otherwise ineligible to receive the particular visa at the time it was issued; or

(3) The consular officer obtains information establishing that, subsequent to the issuance of the visa, a ground of ineligibility has arisen in the alien's case.

(b) Notice of proposed revocation. The bearer of an immigrant visa which is being considered for revocation shall, if practicable, be notified of the proposed action, given an opportunity to show cause why the visa should not be revoked, and requested to present the visa to the consular office indicated in the notification of proposed cancellation.

(c) Procedure in revoking visas. An immigrant visa which is revoked shall be canceled by writing the word "REVOKED" plainly across the face of the visa. The cancellation shall be dated and signed by the consular officer taking the action. The failure of an alien to present the visa for cancellation does not affect the validity of any action taken to revoke it.

(d) Notice to carriers. Notice of revocation of a visa shall be given to the master, commanding officer, agent, owner, charterer, or consignee of the carrier or transportation line on which it is believed the alien intends to travel to the United States, unless the visa has been canceled as provided in paragraph (c) of this section.

(e) Notice to Department. The consular officer shall promptly submit notice of the revocation, including a full report of the facts in the case, to the Department for transmission to the INS. A report is not required if the

visa has been physically canceled prior to the alien's departure for the United States.

(f) Record of action. Upon the revocation of an immigrant visa, the consular officer shall make appropriate notation for the post file of the action taken, including a statement of the reasons therefor, and if the revocation of the visa is effected at other than the issuing office, a report of the action taken shall be sent to that office.

(g) Reconsideration of revocation. (1) The consular officer shall consider any evidence submitted by the alien or the alien's attorney or representative in connection with a request that the revocation of the visa be reconsidered. If the officer finds that the evidence is sufficient to overcome the basis for the revocation, a new visa shall be issued. A memorandum regarding the action taken and the reasons therefore shall be placed in the consular files and appropriate notification made promptly to the carriers concerned, the Department, and the issuing office if notice of revocation has been given in accordance with paragraphs (d), (e), and (f) of this section.

(2) In view of the provisions of § 42.71(b) providing for the refund of fees when the visa has not been used as a result of action by the U.S. Government, no fees shall be collected in connection with the application for or issuance of such a reinstated visa.

§ 42.83 Termination of registration.

(a) Termination following failure of applicant to apply for visa. In accordance with INA 203(e), an alien's registration for an immigrant visa shall be terminated if, within one year following the scheduling of an appointment for final interview, the applicant fails to apply for an immigrant visa.

(b) Termination following visa refusal. An alien's registration for an immigrant visa shall be terminated if, within one year following the refusal of the immigrant visa application under INA 221(g), the alien has failed to present to a consular officer evidence purporting to overcome the basis for refusal.

paragraph (a) or (b) of this section, the consular officer at the post where the alien is registered shall notify the alien of the termination. The consular officer shall also inform the alien of the right to have the registration reinstated if the alien, before the end of the second year after the missed appointment date if paragraph (a) applies, and before the end of the second year after the INA 221(g) refusal if paragraph (b) applies, establishes to the satisfaction of the consular officer that the failure to apply for an immigrant visa or to present evidence purporting to overcome the ineligibility under INA 221(g) was due to circumstances beyond the alien's control.

(d) Reinstatement of registration. If the consular officer is satisfied that an alien, as provided for in paragraph (c) of this section, has established that failure to apply as scheduled for an immigrant visa or to present evidence purporting to overcome ineligibility under INA 221(g) was due to circumstances beyond the alien's control, the consular officer shall reinstate the alien's registration for an immigrant visa. Any petition approved under INA 204(b) which had been automatically revoked as a result of the termination of registration shall be considered to be automatically reinstated if the registration is reinstated.

(e) Interpretation of “circumstances beyond alien's control". For the purpose of this section, the term "circumstances beyond the alien's control" includes, but is not limited to, an illness or other physical disability preventing the alien from traveling, a refusal by the authorities of the country of an alien's residence to grant the alien permission to depart as an immigrant, and foreign military service.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988]

(c) Notice of termination. Upon the termination of registration under

Sec.

43.4 Control of numerical limitation. 43.5 Eligibility to receive a visa.

AUTHORITY: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec. 109(b)(1), 91 Stat. 847; Sec. 314, 100 Stat. 3359, 8 U.S.C. 1153 Note; Sec. 2, 102 Stat. 3359.

SOURCE: 52 FR 1450, Jan. 14, 1987 (interim rule) and 52 FR 17948, May 13, 1987 (final rule), unless otherwise noted.

§ 43.1 General.

Except as specifically provided in this part, the provisions of the Immigration and Nationality Act, as amended, and of Part 42 of this chapter shall apply to application for, consideration of, and issuance or refusal of, immigrant visas under section 314 of Pub. L. 99-603.

§ 43.2 Definition.

The following definition shall be applicable to this part: "Adversely affected country" means a foreign state whose average annual rate of immigration to the United States during the period from July 1, 1966, to September 30, 1985, was less than its average annual rate of immigration to the United States during the period from July 1, 1953, to June 30, 1965. A foreign state's average annual rate of immigration to the United States during the periods described in the preceding sentence shall be determined by totaling the number of natives of the foreign state who were admitted to the United States for permanent residence, as reported in the Annual Reports of the Immigration and Naturalization Service, for each such period and dividing each total by the number of fiscal years in the period. For the purposes of this definition a colony or component or dependent area of a foreign state overseas from such foreign state shall be treated as a separate foreign state.

§ 43.3 Registration of applicants and priority date.

(a) Limitations on registration. An alien shall not be eligible to register under this section unless he is a native of an adversely affected country as defined in § 43.2 of this part. Applications for registration will be accepted only from 12:01 a.m. January 21, 1987,

until Midnight January 27, 1987. Applications received before January 21 or after January 27 will not be considered. If the Department thereafter determines that it is necessary to establish a further period for registration in order to ensure that the number of qualified applicants is sufficient to permit allocation of all immigrant visa numbers authorized by section 314 of Pub. L. 99-603, the Department will so provide by Public Notice in the FEDERAL REGISTER.

(b) Place of registration. Every alien who is a native of an adversely affected country who desires to register as an applicant for a visa under section 314 of Pub. L. 99-603 shall apply for registration by mail to: NP-5, P.O. Box 96097, Washington, DC 20090-6097, U.S.A. Hand-delivered applications, telegrams, envelopes sent by registered mail, Federal Express, USPS Certified Mail or other courier services will not be accepted. Only one application may be submitted in each envelope and, in the event an envelope contains two or more applications, only the first application removed from that envelope will be accepted and processed.

(c) Application for registration. An applicant for registration under this section shall apply for registration by submitting the following information. (1) Name;

(2) Date of birth;

(3) Place of birth (including city and county, province or other political subdivision, and country);

(4) Name(s), date(s) and place(s) of birth of spouse and child(ren), if any; (5) Mailing address; and

(6) Location of consular office nearest to current residence or, if in the United States, nearest to last foreign residence prior to entry into the U.S.

(d) Derivative registration. An application for registration submitted in accordance with paragraphs (a) and (b) of this section shall be considered to include automatically the spouse or child of the applicant, whether or not such spouse or child is named in the application if, in case of a spouse, the marriage to the applicant took place prior to the applicant's admission to the United States for permanent residence or, in the case of a child, the