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portation, including an alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under Part 242 of this chapter shall become final upon dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time alloted for an appeal when no appeal is taken; or, if such an order is issued by the Board or approved by the Board upon certification, it shall be final as of the date of the Board's decision. § 243.2 Warrant of deportation.

A warrant of deportation based upon the final administrative order of deportation in the alien's case shall be issued by a district director. The district director shall exercise the authority contained in section 243 of the Act to determine at whose expense the alien shall be deported and whether his mental or physical condition requires personal care and attendance en route to his destination.

§ 243.3 Expulsion.

Once the warrant of deportation is issued an alien, if not in the physical custody of the Service, shall be given not less than 72 hours' advance notice in writing of the time and place of his surrender completely ready for deportation. If the alien fails to surrender as directed, he shall be deported without further notice when located. Notwithstanding the filing of an application for a stay of deportation, an alien shall surrender as directed unless he shall receive notice prior to the surrender date that a stay has been granted.

§ 243.4 Stay of deportation.

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Any request by an alien under a final administrative order of deportation for a stay of deportation, except a request for withholding of deportation pursuant to section 243 (h) of the Act, shall be filed on Form I-246 with the district director having jurisdiction over the place where the alien is at the time of filing. district director, in his discretion, may grant a stay of deportation for such time and under such conditions as he may deem appropriate. Written notice of the disposition of the alien's request shail be served upon him, but neither the making of the request nor the failure to receive notice of the decision thereon shall relieve or excuse the alien from presenting himself for deportation at the time and place designated for his de

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A district director may permit an alien ondered deported to depart at his own expense to a destination of his own choice. Any alien who has departed from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law, except that an alien who departed before the expiration of the voluntary departure time granted in connection with an alternate order of deportation shall not be considered to have been so deported.

[29 F.R. 6485, May 19, 1964]

§ 243.6 Notice to transportation line.

When a transportation line is responsible for the expenses of an alien's deportation, notification shall be made to such line on Form I-284, when applicable, and Form I-288. If special care and attention is required, notification to this effect shall be placed on Form I-288. § 243.7 Special care and attention for aliens.

When a transportation line is responsible for the expenses of an alien's deportation, the alien shall be delivered to the master, commanding officer, or the officer in charge of the vessel or aircraft on which the alien will be deported, who shall be given Forms I-287, I-287A, and I-287B. The reverse of Form I-287A shall be signed by the officer of the vessel or aircraft to whom the alien has been delivered and immediately returned to the immigration officer effecting delivery. Form I-287B shall be retained by the receiving officer and subsequently filled out by the agents or persons therein designated and returned by mail to the district director named on the form. The transportation line shall at its own expense forward the alien from the foreign port of disembarkation to the final destination specified on Form I-287. The special care and attention shall be continued to such final destination, except when the foreign public officers decline to allow such attendant to proceed and themselves take charge of the alien, in which case this fact shall be recorded by the transportation line on the reverse

of Form I-287B. If the transportation line fails, refuses, or neglects to provide the necessary special care and attention or comply with the directions of Form I-287, the district director shall thereafter and without notice employ suitable persons, at the expense of the transportation line, and effect such deportation. § 243.8 Imposition of sanctions.

The provisions of section 243(g) of the Act have been applied to residents of the Union of Soviet Socialist Republics, Czechoslovakia, and Hungary; those

provisions do not apply to an alien who is residing in Estonia, Latvia, or Lithuania who is not a national, citizen, or subject of the Union of Soviet Socialist Republics. The sanctions imposed on residents of the Union of Soviet Socialist Republics, Czechoslovakia, and Hungary pursuant to section 243(g) may be waived in an individual case for the beneficiary of a petition accorded a status under section 201(b) or section 203 (a) of the Act. The sanctions also may be waived upon an individual request by the Department of State in behalf of a visa applicant. Upon approval of a visa petition or upon an individual request by the Department of State in behalf of a visa applicant, the district director will determine whether sanctions shall be waived. However, the regional commissioner or the Deputy Associate Commissioner, Travel Control, direct that any case or class of cases be referred to him for such determination. The consular officer shall be notified of any determination made with respect to the waiver of sanctions if a visa petition is approved. If the sanctions are not waived, the notice informing the petitioner that the petition has been approved shall also notify him that the sanctions imposed by section 243 (g) of the Act have not been waived.

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§ 244.1 Application.

Pursuant to Part 242 of this chapter and section 244 of the Act, a special inquiry officer in his discretion may authorize the suspension of an alien's deportation, or authorize an alien to depart voluntarily from the United States in lieu of deportation within such time and under such conditions as the district director shall direct if the alien establishes that he is willing and has the immediate means with which to depart promptly from the United States. An application for suspension of deportation shall be made on Form I-256A.

[26 F.R. 12113, Dec. 19, 1961, as amended at 32 F.R. 3340, Feb. 28, 1967]

§ 244.2 Extension of time to depart.

A request by an alien for an extension of time within which to depart voluntarily shall be filed with the district director having jurisdiction over the alien's place of residence. Written notice of the district director's decision shall be served upon the alien, and no appeal may be taken therefrom. [25 F.R. 582, Jan. 23, 1960]

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(a) General. An alien who on arrival in the United States was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act. An alien who is a native of any country of the Western Hemisphere or of any adjacent island named in section 101 (b) (5) of the Act is not eligible for the bene

fits of section 245 of the Act. An alien who has been allocated an immigrant visa number and who entered the United States conditionally pursuant to section 203 (a) (7) of the Act is not eligible for the benefits of section 245 of the Act unless he qualifies as an immediate relative pursuant to section 201(b) of the Act on the basis of a visa petition approved in his behalf or as a special immigrant within the meaning of section 101 (a) (27) of the Act.

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(b) Exchange aliens. Pursuant section 212(e) of the Act, an alien who has or has had the status of an exchange alien or of a nonimmigrant under section 101 (a) (15) (J) of the Act is not eligible for the benefits of section 245 of the Act, section 13 of the Act of September 11, 1957, or section 1 of the Act of November 2, 1966, unless he has complied with the foreign-residence requirements of section 212(e) of the Act or has been granted a waiver thereof.

(c) Officials and treaty aliens. An alien who has a nonimmigrant status under paragraph (15) (A), (15) (E), or (15) (G) of section 101 (a) of the Act, or has an occupational status which would, if he were seeking admission to the United States, entitle him to a nonimmigrant status under any of such paragraphs of section 101 (a) of the Act is not eligible for the benefits of section 245 of the Act, section 13 of the Act of September 11, 1957, or section 1 of the Act of November 2, 1966, unless he first executes and submits with his application the written waiver required by section 247(b) of the Act and Part 247 of this chapter. A member of the immediate family of an alien having status under section 101 (a) (15) (A) or (G) of the Act, and a spouse or child of an alien having status under section 101(a) (15) (E) the Act may apply for adjustment of status only if such member, spouse, or child executes the written waiver required by section 247(b) of the Act, irrespective of whether the principal alien also applies for adjustment and executes such waiver.

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(d) Immediate relatives under section 201(b) and preference aliens under section 203 (a) (1) through 203(a) (7). An applicant who claims immediate relative status under section 201(b) or preference status under section 203 (a) (1) through 203 (a) (6) of the Act is not eligible for the benefits of section 245 of the Act unless he is the beneficiary of a valid unexpired visa petition filed in

accordance with Part 204 of this chapter and approved to accord him such status. An alien who claims preference status under the proviso to section 203 (a) (7) of the Act is not eligible for the benefis of section 245 of the Act and as provided in § 245.4, unless the district director has approved the alien's Application for Classification as a Refugee under the Proviso to Section 203 (a) (7), Immigration and Nationality Act.

(e) Nonpreference aliens. An applicant who is a nonpreference alien seeking adjustment of status for the purpose of engaging in gainful employment in the United States, and who is not exempted under § 212.8 (b) of this chapter from the labor certification requirement of section 212(a) (14) of the Act, is ineligible for the benefits of section 245 of the Act unless an individual labor certification is issued by the Secretary of Labor or his designated representative, or unless the applicant establishes that his occupation is included in the current list of categories of employment in Schedule A, 29 CFR Part 60, for which the Secretary of Labor has issued a blanket certification under section 212 (a) (14).

(f) Concurrent applications to overcome exclusionary grounds. Except as provided in Parts 235 and 249 of this chapter, an application under this part shall be the sole method of requesting the exercise of discretion under sections 212 (g), (h), and (i) of the Act, insofar as they relate to the excludability of an alien in the United States. An applicant for adjustment under this part may also apply for the benefits of section 212(c) of the Act, for permission to reapply after deportation or removal and for the benefits of section 212(a) (28) (I) (ii) of the Act.

(g) Availability of immigrant visas under section 245. If the applicant for adjustment of status under section 245 of the Act is a preference or nonpreference alien, the current Department of State Visa Office Bulletin on Availability of Immigrant Visa Numbers will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 if the applicant has a priority date on the waiting list which is not more than 90 days later than the date shown in the bulletin. The priority date of an applicant who is claiming eligibility for preference classification by virtue of a valid visa petition

approved in his behalf shall be fixed by the date on which such approved petition was filed. The priority date of a nonpreference applicant shall be fixed by the following factors, whichever is the earliest: (1) The priority date accorded the applicant by the consular officer as a nonpreference immigrant; (2) the date on which application Form I-485 is filed, if the applicant establishes that the provisions of section 212(a) (14) of the Act do not apply to him or that he is qualified in the categories of employment currently listed in Schedule A, 29 CFR 60, for which the Secretary of Labor has issued a blanket certification; or (3) the date of issuance of an individual certification by the Secretary of Labor pursuant to section 212(a) (14) of the Act, if such individual certification is required.

An application for adjustment as a preference or nonpreference alien shall not be approved until an immigrant visa number has been allocated by the Department of State. Information as to the immediate availability of an immigrant visa may be obtained at the nearest Service office.

[30 F.R. 14778, Nov. 30, 1965, as amended at 31 F.R. 535; Jan. 15, 1966; 31 F.R. 2373, Feb. 4, 1966; 31 F.R. 5119, Mar. 30, 1966; 31 F.R. 15235, Dec. 6, 1966; 32 F.R. 853, Jan. 25, 1967; 32 F.R. 4341, Mar. 22, 1967; 32 F.R. 9632, July 4, 1967]

§ 245.2 Application.

(a) General. An application for adjustment of status under section 245 of the Act or section 1 of the Act of November 2, 1966, by an alien after he has been served with an order to show cause or warrant of arrest shall be made and considered only in proceedings under Part 242 of this chapter. In any other case, an alien who believes that he meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, and § 245.1, shall apply to the district director having jurisdiction over his place of residence. The application under section 245 of the Act shall be made on Form I-485, while the application under section 1 of the Act of November 2, 1966, shall be made on Form I-485A. Each application shall be accompanied by executed Form G-325A, if the applicant has reached his 14th birthday, which shall be considered as part of the application. An application under this paragraph shall be accompanied by the documents specified in the instructions which are attached to the application. In determining the date of "last

arrival" within the meaning of section 1 of the Act of November 2, 1966, in the case of an applicant who was inspected and admitted or paroled into the United States subsequent to January 1, 1959, and who subsequently departed temporarily with no intention of abandoning his residence in the United States and was readmitted or reparoled into the United States upon his return, the date of the applicant's arrival after such temporary absence or absences shall not be included. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter.

(b) Application by nonpreference alien seeking adjustment of status for purpose of engaging in gainful employment—(1) Alien whose occupation is included in Schedules A or C, 29 CFR Part 60, or who is a member of the professions or has exceptional ability in the sciences or arts. An applicant for adjustment of status as a nonpreference alien under section 245 of the Act must submit Forms ES-575A with his application, if he is qualified for and will be engaged in an occupation currently listed in Schedule A or C, 29 CFR Part 60, or if he is a member of the professions or has exceptional ability in the sciences or the arts. The Forms ES575A must be executed in accordance with the instructions for completion of that form, and must be accompanied by the evidence of the applicant's qualifications specified in the instructions attached to the application for adjustment of status. The other documents specified in paragraph (a) of this section must also be submitted in support of the application for adjustment of status. If the applicant is clearly qualified for and will be engaged in an occupation currently listed in Schedule C, the district director will refer Form ES-575A and evidence of the applicant's qualifications to the Administrator, Bureau of Employment Security, U.S. Department of Labor for determination with respect to issuance of a certification. The district director will similarly refer Form ES-575A and evidence of the applicant's qualifications when the applicant is clearly qualified as a member of the professions or as a person with exceptional ability in the sciences or the arts, unless the appli

cant's profession or occupation is included in the categories of employment currently listed in Schedule A, 29 CFR Part 60, for which the Secretary of Labor has issued a blanket certification under section 212(a) (14) of the Act. The district director may also request the Secretary of Labor or his designated representative to furnish an advisory opinion of the applicant's occupational qualifications in any specific case.

(2) Other nonpreference aliens who will engage in gainful employment. If the applicant for adjustment as a nonpreference alien under section 245 of the Act is not a member of a profession, is not a person with exceptional ability in the sciences or the arts, and is unqualified for a category of employment currently listed in Schedule A or C, 29 CFR Part 60, he must submit with his application a certification of the Secretary of Labor issued under section 212 (a) (14) of the Act. The applicant's employer or prospective employer may apply for the certification to the local State Employment Service.

(c) Application under section 2 of the Act of November 2, 1966. An application by a native or citizen of Cuba or by his spouse or child residing in the United States with him, who was lawfully adImitted to the United States for permanent residence prior to November 2, 1966, and who desires such admission to be recorded as of an earlier date pursuant to section 2 of the Act of November 2, 1966, shall be made on Form I-485A. The application shall be accompanied by the Alien Registration Receipt Card, Form I-151, issued to the applicant in connection with his lawful admission for permanent residence, and shall be submitted to the district director having jurisdiction over the applicant's place of residence in the United States. The decision on the application shall be made by the district director. No appeal shall lie from his decision. If the application is approved, the applicant will be furnished with a replacement of his Form I-151 bearing the new date as of which the lawful admission for permanent residence has been recorded.

[30 F.R. 14778, Nov. 30, 1965, as amended at 31 F.R. 5119, Mar. 30, 1966; 31 F.R. 15235, Dec. 6, 1966; 32 F.R. 853, Jan. 25, 1967; 32 F.R. 2883, Feb. 15, 1967]

§ 245.3 Adjustment of status under section 13 of the Act of September 11, 1957.

An application for the benefits of section 13 of the Act of September 11, 1957, shall be filed on Form I-485 with the district director having jurisdiction over the applicant's place of residence. The benefits of section 13 of the Act of September 11, 1957, shall be accorded only to an alien admitted to the United States under the provisions of either section 101(a) (15) (A) (i) or (ii) or 101(a) (15) (G) (i) or (ii) of the Act who performed diplomatic or semidiplomatic duties and to members of his immediate family. Aliens whose duties were of a custodial, clerical, or manual nature, and members of their immediate families, are not eligible. In view of the annual limitation of 50 on the number of aliens whose status may be adjusted under section 13 of the Act of September 11, 1957, an alien who is prima facie eligible for adjustment of status to that of a lawful permanent resident under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. An applicant for the benefits of section 13 of the Act of September 11, 1957 shall not be subject to the labor certification requirement of section 212(a) (14) of the Act. The applicant 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. [30 F.R. 14779, Nov. 30, 1965, as amended at 31 F.R. 6196, April 22, 1966; 32 F.R. 9632, July 4, 1967]

§ 245.4 Adjustment of status under the proviso to section 203 (a) (7) of the Act.

The provisions of section 245 of the Act and this part shall govern the adjustment of status provided for in the proviso to section 203 (a) (7) of the Act. Processing of applications for adjustment under the proviso to section 203 (a) (7) and this section shall be initiated in each district in the chronological order in which the applicants last arrived in the United States. An alien who claims he is entitled to a preference status pursuant to the proviso to section 203 (a) (7) of the Act shall execute and attach to his application for adjustment

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