8 CFR Part 212 — Documentary Requirements: Nonimmigrants; Waivers; Admission of Certain Inadmissible Aliens; Parole

PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); Title VII of Pub. L. 110-229 (8 U.S.C. 1185 note); Pub. L. 115-218; 8 CFR part 2. Section 212.1(q) and (r) also issued under section 702, Pub. L. 110-229, 122 Stat. 754, 854. Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted. § 212.0 Definitions. For purposes of § 212.1 and § 235.1 of this chapter: Adjacent islands Cruise ship Ferry Pleasure vessel United States U.S. citizen United States qualifying tribal entity [73 FR 18415, Apr. 3, 2008] § 212.1 Documentary requirements for nonimmigrants. A valid unexpired visa that meets the requirements of part 215, subpart B, of this chapter, if applicable, and an unexpired passport, 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) Citizens of Canada or Bermuda, Bahamian nationals or British subjects resident in certain islands Canadian citizens. (i) NEXUS Program. (ii) FAST Program. (iii) SENTRI Program. (iv) Canadian Indians. (v) Children. (A) Children Under Age 16. (B) Groups of Children Under Age 19. ( 1 ( i ( ii ( iii ( iv ( 2 ( 3 (2) Citizens of the British Overseas Territory of Bermuda. (3) Bahamian nationals or British subjects resident in the Bahamas. (4) British subjects resident in the Cayman Islands or in the Turks and Caicos Islands. (b) Nationals of the British Virgin Islands. (1) The alien is seeking admission solely to visit the Virgin Islands of the United States; or (2) At the time of embarking on an aircraft at St. Thomas, U.S. Virgin Islands, the alien meets each of the following requirements: (i) The alien is traveling to any other part of the United States by aircraft as a nonimmigrant visitor for business or pleasure (as described in section 101(a)(15)(B) of the Act); (ii) The alien satisfies the examining U.S. immigration officer at the port-of-entry that he or she is clearly and beyond doubt entitled to admission in all other respects; and (iii) The alien presents a current certificate issued by the Royal Virgin Islands Police Force indicating that he or she has no criminal record. (c) Mexican nationals. (i) Is applying for admission as a temporary visitor for business or pleasure from Mexico at a land port-of-entry, or arriving by pleasure vessel or ferry, if the national is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card issued by the Department of State, containing a machine-readable biometric identifier; or. (ii) Is applying for admission from contiguous territory or adjacent islands at a land or sea port-of-entry, if the national is a member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in possession of a Form I-872 American Indian Card. (2) A visa shall not be required of a Mexican national who: (i) Is in possession of a Form DSP-150, with a biometric identifier, issued by the DOS, and a passport, and is applying for admission as a temporary visitor for business or pleasure from other than contiguous territory; (ii) Is a crew member employed on an aircraft belonging to a Mexican company owned carrier authorized to engage in commercial transportation into the United States; or (iii) Bears a Mexican diplomatic or official passport and who is a military or civilian official of the Federal Government of Mexico entering the United States for 6 months or less for a purpose other than on assignment as a permanent employee to an office of the Mexican Federal Government in the United States, and the official's spouse or any of the official's dependent family members under 19 years of age, bearing diplomatic or official passports, who are in the actual company of such official at the time of admission into the United States. This provision does not apply to the spouse or any of the official's family members classifiable under section 101(a)(15)(F) or (M) of the Act. (3) A Mexican national who presents a BCC at a POE must present the DOS-issued DSP-150 containing a machine-readable biometric identifier. The alien will not be permitted to cross the border into the United States unless the biometric identifier contained on the card matches the appropriate biometric characteristic of the alien. (4) Mexican nationals presenting a combination B-1/B-2 nonimmigrant visa and border crossing card (or similar stamp in a passport), issued by DOS prior to April 1, 1998, that does not contain a machine-readable biometric identifier, may be admitted on the basis of the nonimmigrant visa only, provided it has not expired and the alien remains admissible. A passport is also required. (5) Aliens entering pursuant to International Boundary and Water Commission Treaty. (d) Citizens of the Freely Associated States, formerly Trust Territory of the Pacific Islands. (e) Aliens entering Guam pursuant to section 14 of Pub. L. 99-396, “Omnibus Territories Act.” (i) Is classifiable as a vistor for business or pleasure; (ii) Is solely entering and staying on Guam for a period not to exceed fifteen days; (iii) Is in possession of a round-trip nonrefundable and nontransferable transportation ticket bearing a confirmed departure date not exceeding fifteen days from the date of admission to Guam; (iv) Is in possession of a completed and signed Visa Waiver Information Form (Form I-736); (v) Waives any right to review or appeal the immigration officer's determination of admissibility at the port of entry at Guam; and (vi) Waives any right to contest any action for deportation, other than on the basis of a request for asylum. (2) An alien is eligible for the waiver provision if all of the eligibility criteria in paragraph (e)(1) of this section have been met prior to embarkation and the alien is a citizen of a country that: (i) Has a visa refusal rate of 16.9% or less, or a country whose visa refusal rate exceeds 16.9% and has an established preinspection or preclearance program, pursuant to a bilateral agreement with the United States under which its citizens traveling to Guam without a valid United States visa are inspected by the Immigration and Naturalization Service prior to departure from that country; (ii) Is within geographical proximity to Guam, unless the country has a substantial volume of nonimmigrant admissions to Guam as determined by the Commissioner and extends reciprocal privileges to citizens of the United States; (iii) Is not designated by the Department of State as being of special humanitarian concern; and (iv) Poses no threat to the welfare, safety or security of the United States, its territories, or commonwealths. Any potential threats to the welfare, safety, or security of the United States, its territories, or commonwealths will be dealt with on a country by country basis, and a determination by the Commissioner of the Immigration and Naturalization Service that a threat exists will result in the immediate deletion of that country from the listing in paragraph (e)(3) of this section. (3)(i) The following geographic areas meet the eligibility criteria as stated in paragraph (e)(2) of this section: Australia, Brunei, Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, Republic of Korea, Singapore, Solomon Islands, Taiwan (residents thereof who begin their travel in Taiwan and who travel on direct flights from Taiwan to Guam without an intermediate layover or stop except that the flights may stop in a territory of the United States enroute), the United Kingdom (including the citizens of the colony of Hong Kong), Vanuatu, and Western Samoa. The provision that flights transporting residents of Taiwan to Guam may stop at a territory of the United States enroute may be rescinded whenever the number of inadmissible passengers arriving in Guam who have transited a territory of the United States enroute to Guam exceeds 20 percent of all the inadmissible passengers arriving in Guam within any consecutive two-month period. Such rescission will be published in the Federal Register. (ii) For the purposes of this section, the term citizen of a country (4) Admission under this section renders an alien ineligible for: (i) Adjustment of status to that of a temporary resident or, except as provided by section 245(i) of the Act or as an immediate relative as defined in section 201(b) of the Act, to that of a lawful permanent resident. (ii) Change of nonimmigrant status; or (iii) Extension of stay. (5) A transportation line bringing any alien to Guam pursuant to this section shall: (i) Enter into a contract on Form I-760, made by the Commissioner of the Immigration and Naturalization Service in behalf of the government; (ii) Transport only an alien who is a citizen and in possession of a valid passport of a country enumerated in paragraph (e)(3) of this section; (iii) Transport only an alien in possession of a round-trip, nontransferable transportation ticket: (A) Bearing a confirmed departure date not exceeding fifteen days from the date of admission to Guam, (B) Valid for a period of not less than one year, (C) Nonrefundable except in the country in which issued or in the country of the alien's nationality or residence, (D) Issued by a carrier which has entered into an agreement described in part (5)(i) of this section, and (E) Which the carrier will unconditionally honor when presented for return passage; and (iv) Transport only an alien in possession of a completed and signed Visa Waiver Information Form I-736. (f) Direct transits. (3) Foreign government officials in transit. (g) Unforeseen emergency. (h) Nonimmigrant spouses, fiancées, fiancés, and children of U.S. citizens. (i) Visa Waiver Program. (j) Officers authorized to act upon recommendations of United States consular officers for waiver of visa and passport requirements. (k) Cancellation of nonimmigrant visas by immigration officers. (l) Treaty traders and investors. (m) Aliens in S classification. (n) [Reserved] (o) Alien in T-2 through T-6 classification. (Secs. 103, 104, 212 of the Immigration and Nationality Act, as amended (8 U.S.C. 1103, 1104, 1132)) (p) Alien in U-1 through U-5 classification. (q) Aliens admissible under the Guam-CNMI Visa Waiver Program Eligibility for Program. (i) Be a national of a country or geographic area listed in paragraph (q)(2) of this section; (ii) Be classifiable as a visitor for business or pleasure; (iii) Be solely entering and staying on Guam or the CNMI for a period not to exceed forty-five days; (iv) Be in possession of a round trip ticket that is nonrefundable and nontransferable and bears a confirmed departure date not exceeding forty-five days from the date of admission to Guam or the CNMI. “Round trip ticket” includes any return trip transportation ticket issued by a participating carrier, electronic ticket record, airline employee passes indicating return passage, individual vouchers for return passage, group vouchers for return passage for charter flights, or military travel orders which include military dependents for return to duty stations outside the United States on U.S. military flights; (v) On or after November 29, 2024, receive electronic travel authorization pursuant to paragraph (q)(9) of this section; prior to this date, receive electronic travel authorization pursuant to paragraph (q)(9) of this section or be in possession of a completed and signed Guam-CNMI Visa Waiver Information Form (CBP Form I-736); (vi) Be in possession of a completed and signed I-94 (see § 1.4), Arrival-Departure Record (CBP Form I-94); (vii) Be in possession of a valid unexpired ICAO compliant, machine readable passport issued by a country that meets the eligibility requirements of paragraph (q)(2) of this section; (viii) Have not previously violated the terms of any prior admissions. Prior admissions include those under the Guam-CNMI Visa Waiver Program, the prior Guam Visa Waiver Program, the Visa Waiver Program as described in section 217(a) of the Act and admissions pursuant to any immigrant or nonimmigrant visa; (ix) Waive any right to review or appeal an immigration officer's determination of admissibility at the port of entry into Guam or the CNMI; (x) Waive any right to contest any action for deportation or removal, other than on the basis of: An application for withholding of removal under section 241(b)(3) of the INA; withholding or deferral of removal under the regulations implementing Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; or, an application for asylum if permitted under section 208 of the Act. (2) Program Countries and Geographic Areas General Eligibility Criteria. (B) A country or geographic area may not participate in the Guam-CNMI Visa Waiver Program if it has been designated a Country of Particular Concern under the International Religious Freedom Act of 1998 by the Department of State, or identified by the Department of State as a source country of refugees designated of special humanitarian concern to the United States; (C) A country or geographic area may not participate in the Guam-CNMI Visa Waiver Program if that country, not later than three weeks after the issuance of a final order of removal, does not accept for repatriation any citizen, former citizen, or national of the country against whom a final executable order of removal is issued. Nothing in this subparagraph creates any duty for the United States or any right for any alien with respect to removal or release. Nothing in this subparagraph gives rise to any cause of action or claim under this paragraph or any other law against any official of the United States or of any State to compel the release, removal or reconsideration for release or removal of any alien. (D) DHS may make a determination regarding a country's eligibility based on other factors including, but not limited to, rate of refusal for nonimmigrant visas, rate of overstays, cooperation in information exchange with the United States, electronic travel authorizations, and any other factors deemed relevant by DHS. (ii) Eligible Countries and Geographic Areas. see (A) Hong Kong Special Administrative Region (Hong Kong). (B) Taiwan. (iii) Significant Economic Benefit Criteria. (iv) Additional Eligible Countries or Geographic Areas Based on Significant Economic Benefit. (3) Suspension of Program Countries or Geographic Areas. (ii) A country or geographic area may be suspended from the Guam-CNMI Visa Waiver Program if that country or geographic area is designated as a Country of Particular Concern under the International Religious Freedom Act of 1998 by the Department of State, or identified by the Department of State as a source country of refugees designated of special humanitarian concern to the United States, pending an evaluation and determination by the Secretary. (iii) A country or geographic area may be suspended from the Guam-CNMI Visa Waiver Program by the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State, based on the evaluation of all factors the Secretary deems relevant including, but not limited to, electronic travel authorization, procedures for reporting lost and stolen passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit systems and information exchange. (4) Ineligibility due to admission under the Guam-CNMI Visa Waiver Program. (i) Adjustment of status to that of a temporary resident or, except as provided by section 245(i) of the Act or as an immediate relative as defined in section 201(b) of the Act, to that of a lawful permanent resident. (ii) Change of nonimmigrant status; or (iii) Extension of stay. (5) Requirements for transportation lines. (i) Enter into a contract on CBP Form I-760, made by the Commissioner of Customs and Border Protection on behalf of the government; (ii) Transport an alien who is a citizen or national and in possession of a valid unexpired ICAO compliant, machine readable passport of a country enumerated in paragraph (q)(2) of this section; (iii) Transport an alien only if the alien is in possession of a round trip ticket as defined in paragraph (q)(1)(iv) of this section bearing a confirmed departure date not exceeding forty-five days from the date of admission to Guam or the CNMI which the carrier will unconditionally honor when presented for return passage. This ticket must be: (A) Valid for a period of not less than one year, (B) Nonrefundable except in the country in which issued or in the country of the alien's nationality or residence, and (C) Issued by a carrier which has entered into an agreement described in paragraph (q)(5) of this section. (iv) On or after November 29, 2024, transport an alien who has received electronic travel authorization pursuant to paragraph (q)(9) of this section; prior to this date, transport an alien who has received electronic travel authorization pursuant to paragraph (q)(9) of this section or an alien in possession of a completed and signed Guam-CNMI Visa Waiver Information Form (CBP Form I-736), and (v) Transport an alien in possession of completed I-94, Arrival-Departure Record (CBP Form I-94) (see § 1.4). (6) [Reserved] (7) Maintenance of status—satisfactory departure. (8) Inadmissibility and Deportability Determinations of inadmissibility. (B) The removal of an alien under this section may be deferred if the alien is paroled into the custody of a Federal, State, or local law enforcement agency for criminal prosecution or punishment. This section in no way diminishes the discretionary authority of the Secretary enumerated in section 212(d) of the Act. (C) Refusal of admission under this paragraph shall not constitute removal for purposes of the Act. (ii) Determination of deportability. (B) Removal by DHS under paragraph (q)(8)(ii)(A) of this section is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act. (iii) Removal of inadmissible aliens who arrived by air or sea. (9) Electronic Travel Authorization Travel authorization required. (ii) Time. (iii) Required elements. (iv) Duration General rule. (B) Exception. (C) Changes to the validity period. Federal Register. (v) New travel authorization required. (A) The alien is issued a new passport; (B) The alien's name changes; (C) The alien's gender changes; (D) The alien's country of citizenship changes; or (E) The circumstances underlying the alien's previous responses to any of the Guam-CNMI Visa Waiver Information Form (Form I-736) questions requiring a “yes” or “no” response (eligibility questions) have changed. (vi) Limitations Current authorization period. (B) Not a determination of visa eligibility. (C) Revocation. (10) Severability. (r) Aliens admissible under the Commonwealth of the Northern Mariana Islands (CNMI) Economic Vitality & Security Travel Authorization Program (EVS-TAP) Description. (2) Eligibility. (i) Be a national of the PRC; (ii) Be classifiable as a visitor for business or pleasure; (iii) Be solely entering and staying on the CNMI for a period not to exceed 14 days; (iv) Be in possession of a round trip ticket that is nonrefundable and nontransferable and bears a confirmed departure date not exceeding 14 days from the date of admission to the CNMI. “Round trip ticket” includes any return trip transportation ticket issued by a participating carrier, electronic ticket record, airline employee passes indicating return passage, individual vouchers for return passage, group vouchers for return passage for charter flights, or military travel orders which include military dependents for return to duty stations outside the United States on U.S. military flights; (v) Receive an electronic travel authorization from CBP pursuant to paragraph (r)(9) of this section; (vi) Be in possession of a completed and signed I-94 (see § 1.4), Arrival-Departure Record (CBP Form I-94); (vii) Be in possession of a valid unexpired ICAO compliant, machine readable passport issued by the PRC; (viii) Have not previously violated the terms of any prior admissions or parole; (ix) Waive any right to review or appeal an immigration officer's determination of admissibility at the port of entry into the CNMI; and (x) Waive any right to contest any action for deportation or removal, other than on the basis of: an application for withholding of removal under section 241(b)(3) of the INA; withholding or deferral of removal under the regulations implementing Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; or, after December 31, 2029, an application for asylum if permitted under section 208 of the Act. (3) Suspension or Discontinuation of Program. (ii) The Secretary, in consultation with the Secretary of the Interior and the Secretary of State, may also discontinue the CNMI EVS-TAP based on the evaluation of all factors the Secretary deems relevant including, but not limited to, electronic travel authorization, procedures for reporting lost and stolen passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange. (4) Ineligibility due to admission under the CNMI EVS-TAP. (i) Adjustment of status to that of a temporary resident or, except as provided by section 245(i) of the Act or as an immediate relative as defined in section 201(b) of the Act, to that of a lawful permanent resident. (ii) Change of nonimmigrant status; or (iii) Extension of stay. (5) Requirements for transportation lines. (i) Enter into a contract on CBP Form I-760, made by the Commissioner of U.S. Customs and Border Protection on behalf of the government; (ii) Transport an alien only if the alien is a national of the PRC and is in possession of a valid unexpired ICAO compliant, machine readable passport issued by the PRC; (iii) Transport an alien only if the alien is in possession of a round trip ticket as defined in paragraph (r)(2)(iv) of this section bearing a confirmed departure date not exceeding 14 days from the date of admission to the CNMI which the carrier will unconditionally honor when presented for return passage. This ticket must be: (A) Valid for a period of not less than one year, (B) Nonrefundable except in the country in which issued or in the country of the alien's nationality or residence, and (C) Issued by a carrier which has entered into an agreement described in paragraph (r)(5) of this section. (iv) Transport an alien only if the alien has received electronic travel authorization from CBP pursuant to paragraph (r)(9) of this section. (6) [Reserved] (7) Maintenance of status satisfactory departure. (8) Inadmissibility and Deportability Determinations of inadmissibility. (B) The removal of an alien under this section may be deferred if the alien is paroled into the custody of a Federal, State, or local law enforcement agency for criminal prosecution or punishment. This section in no way diminishes the discretionary authority of the Secretary enumerated in section 212(d) of the Act. (C) Refusal of admission under this paragraph shall not constitute removal for purposes of the Act. (ii) Determination of deportability. (B) Removal by DHS under paragraph (r)(8)(ii)(A) of this section is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act. (iii) Removal of inadmissible aliens who arrived by air or sea. (9) Electronic Travel Authorization Travel authorization required. (ii) Time. (iii) Required elements. (iv) Duration General rule. (B) Exceptions. (C) Changes to the validity period. Federal Register. (v) New travel authorization required. (A) The alien is issued a new passport; (B) The alien's name changes; (C) The alien's gender changes; (D) The alien's country of citizenship changes; or (E) The circumstances underlying the alien's previous responses to any of the CNMI EVS-TAP questions requiring a “yes” or “no” response (eligibility questions) have changed. (vi) Limitations Current authorization period. (B) Not a determination of visa eligibility. (C) Revocation. (10) Severability. (11) Implementation date. Federal Register [26 FR 12066, Dec. 16, 1961] Editorial Note: For Federal Register www.govinfo.gov. § 212.2 Consent to reapply for admission after deportation, removal or departure at Government expense. (a) Evidence. (b) Alien applying to consular officer for nonimmigrant visa or nonresident alien border crossing card. (2) The consular officer shall forward the application to the district director with jurisdiction over the place where the deportation or removal proceedings were held. (c) Special provisions for an applicant for nonimmigrant visa under section 101(a)(15)(K) of the Act. (i) Be the beneficiary of a valid visa petition approved by the Service; and (ii) File the application on the form designated by USCIS with the fee prescribed in 8 CFR 106.2, in accordance with the form instructions with the consular officer for permission to reapply for admission to the United States after deportation or removal. (2) The consular officer must forward the application to the designated USCIS office. If the alien is ineligible on grounds which, upon the applicant's marriage to the United States citizen petitioner, may be waived under section 212 (g), (h), or (i) of the Act, the consular officer must also forward a recommendation as to whether the waiver should be granted. (d) Applicant for immigrant visa. (e) Applicant for adjustment of status. (f) Applicant for admission at port of entry. (g) Other applicants. (2) An alien who is an applicant for parole authorization under 8 CFR 245.15(t)(2) or 8 CFR 245.13(k)(2) and requires consent to reapply for admission after deportation, removal, or departure at Government expense, or a waiver under section 212(g), 212(h), or 212(i) of the Act, must file the requisite waiver form concurrently with the parole request. (h) Decision. (i) Retroactive approval. (i) The date on which the alien embarked or reembarked at a place outside the United States; or (ii) The date on which the alien attempted to be admitted from foreign contiguous territory. (2) If the alien filed Form I-212 in conjunction with an application for adjustment of status under section 245 of the Act, the approval of the application shall be retroactive to the date on which the alien embarked or reembarked at a place outside the United States. (j) Advance approval. [56 FR 23212, May 21, 1991, as amended at 64 FR 25766, May 12, 1999; 65 FR 15854, Mar. 24, 2000; 74 FR 26937, June 5, 2009; 76 FR 53787, Aug. 29, 2011; 85 FR 46922, Aug. 3, 2020; 89 FR 65165, Aug. 9, 2024] § 212.3 Application for the exercise of discretion under section 212(c). (a) Jurisdiction. (b) Filing of application. (c) Decision of the District Director. (d) Validity. (e) Filing or renewal of applications before an Immigration Judge. (2) The Immigration Judge may grant or deny an application for advance permission to return to an unrelinquished domicile under section 212(c) of the Act, in the exercise of discretion, unless otherwise prohibited by paragraph (f) of this section. (3) An alien otherwise entitled to appeal to the Board of Immigration Appeals may appeal the denial by the Immigration Judge of this application in accordance with the provisions of § 3.36 of this chapter. (f) Limitations on discretion to grant an application under section 212(c) of the Act. An application for advance permission to enter under section 212 of the Act shall be denied if: (1) The alien has not been lawfully admitted for permanent residence; (2) The alien has not maintained lawful domicile in the United States, as either a lawful permanent resident or a lawful temporary resident pursuant to section 245A or section 210 of the Act, for at least seven consecutive years immediately preceding the filing of the application; (3) The alien is subject to exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), or (3)(E) of section 212(a) of the Act; (4) The alien has been convicted of an aggravated felony, as defined by section 101(a)(43) of the Act, and has served a term of imprisonment of at least five years for such conviction; or (5) The alien applies for relief under section 212(c) within five years of the barring act as enumerated in one or more sections of section 242B(e) (1) through (4) of the Act. (g) Relief for certain aliens who were in deportation proceedings before April 24, 1996. [56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61 FR 59825, Nov. 25, 1996; 66 FR 6446, Jan. 22, 2001; 74 FR 26938, June 5, 2009; 76 FR 53787, Aug. 29, 2011; 85 FR 46922, Aug. 3, 2020] § 212.4 Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3). (a) Applications under section 212(d)(3)(A) General. (i) The reasons for inadmissibility and each section of law under which the alien is inadmissible; (ii) Each intended date of arrival; (iii) The length of each proposed stay in the United States; (iv) The purpose of each stay; (v) The number of entries which the alien intends to make; and (vi) 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 (ii) and (iii) shall be furnished only with respect to the initial entry. Item (ii) does not apply to a bona fide crewman. The consular officer or other State Department official shall be notified of the decision on his recommendation. No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official. (2) Authority of consular officers to approve section 212(d)(3)(A) recommendations pertaining to aliens inadmissible under section 212(a)(28)(C). (b) Applications under section 212(d)(3)(B). (c) Terms of authorization General. (i) Each section of law under which the alien is inadmissible; (ii) The intended date of each arrival, unless the applicant is a bona fide crewman. However, if the authorization is valid for multiple entries rather than for a specified number of entries, this information shall be specified only with respect to the initial entry; (iii) The length of each stay authorized in the United States, which shall not exceed the period justified and shall be subject to limitations specified in 8 CFR part 214. However, if the authorization is valid for multiple entries rather than for a specified number of entries, this information shall be specified only with respect to the initial entry; (iv) The purpose of each stay; (v) The number of entries for which the authorization is valid; (vi) Subject to the conditions set forth in paragraph (c)(2) of this section, the dates on or between which each application for admission at POEs in the United States is valid; (vii) The justification for exercising the authority contained in section 212(d)(3) of the Act; and (viii) That the authorization is subject to revocation at any time. (2) Conditions of admission. (ii) The period for which the alien's admission is authorized pursuant to this section shall not exceed the period justified, or the limitations specified, in 8 CFR part 214 for each class of nonimmigrant, whichever is less. (3) Validity. (ii) An authorization issued in conjunction with an application for a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the DOS shall be valid for a period not to exceed the validity of the biometric BCC for applications for admission at U.S. POEs and shall be valid for multiple entries. (iii) A multiple entry authorization for a person other than a crew member or applicant for a Form DSP-150 may be made valid for a maximum period of 5 years for applications for admission at U.S. POEs. (iv) An authorization that was previously issued in conjunction with Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is noted on the card may remain valid. Although the waiver may remain valid, the non-biometric border crossing card portion of this document is not valid after that date. This waiver authorization shall cease if otherwise revoked or voided. (v) A single-entry authorization to apply for admission at a U.S. POE shall not be valid for more than 6 months from the date the authorization is issued. (vi) An authorization may not be revalidated. Upon expiration of the authorization, a new application and authorization are required. (d) Admission of groups inadmissible under section 212(a)(28) for attendance at international conferences. (e) Inadmissibility under section 212(a)(1)(A)(iii). (f) Inadmissibility under section 212(a)(1) for aliens inadmissible due to HIV General. (2) Conditions. (i) The applicant has tested positive for HIV; (ii) The applicant is not currently exhibiting symptoms indicative of an active, contagious infection associated with acquired immune deficiency syndrome; (iii) The applicant is aware of, has been counseled on, and understands the nature, severity, and the communicability of his or her medical condition; (iv) The applicant's admission poses a minimal risk of danger to the public health in the United States and poses a minimal risk of danger of transmission of the infection to any other person in the United States; (v) The applicant will have in his or her possession, or will have access to, as medically appropriate, an adequate supply of antiretroviral drugs for the anticipated stay in the United States and possesses sufficient assets, such as insurance that is accepted in the United States, to cover any medical care that the applicant may require in the event of illness at any time while in the United States; (vi) The applicant's admission will not create any cost to the United States, or a state or local government, or any agency thereof, without the prior written consent of the agency; (vii) The applicant is seeking admission solely for activities that are consistent with the B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant classification; (viii) The applicant is aware that no single admission to the United States will be for a period that exceeds 30 days (subject to paragraph (f)(5) of this section); (ix) The applicant is otherwise admissible to the United States and no other ground of inadmissibility applies; (x) The applicant is aware that he or she cannot be admitted under section 217 of the Act (Visa Waiver Program); (xi) The applicant is aware that any failure to comply with any condition of admission set forth under this paragraph (f) will thereafter make him or her ineligible for authorization under this paragraph; and (xii) The applicant, for the purpose of admission pursuant to authorization under this paragraph (f), waives any opportunity to apply for an extension of nonimmigrant stay (except as provided in paragraph (f)(5) of this section), a change of nonimmigrant status, or adjustment of status to that of permanent resident. (A) Nothing in this paragraph (f) precludes an alien admitted under this paragraph (f) from applying for asylum pursuant to section 208 of the Act. (B) Any alien admitted under this paragraph (f) who applies for adjustment of status under section 209 of the Act after being granted asylum must establish his or her eligibility to adjust status under all applicable provisions of the Act and 8 CFR part 209. Any applicable ground of inadmissibility must be waived by approval of an appropriate waiver(s) under section 209(c) of the Act and 8 CFR 209.2(b). (C) Nothing within this paragraph (f) constitutes a waiver of inadmissibility under section 209 of the Act or 8 CFR part 209. (3) Nonimmigrant visa. (4) Application at U.S. port. (5) Admission limited; satisfactory departure. (6) Failure to comply. (7) Additional limitations. (8) Option for case-by-case determination. (g) Action upon alien's arrival. (h) Authorizations issued to crewmen without limitation as to period of validity. (i) Revocation. (j) Alien witnesses and informants Waivers under section 212(d)(1) of the Act. (2) Grounds of removal. [29 FR 15252, Nov. 13, 1964] Editorial Note: For Federal Register www.govinfo.gov. § 212.5 Parole of aliens into the United States. (a) The authority of the Secretary to continue an alien in custody or grant parole under section 212(d)(5)(A) of the Act shall be exercised by the Assistant Commissioner, Office of Field Operations; Director, Detention and Removal; directors of field operations; port directors; special agents in charge; deputy special agents in charge; associate special agents in charge; assistant special agents in charge; resident agents in charge; field office directors; deputy field office directors; chief patrol agents; district directors for services; and those other officials as may be designated in writing, subject to the parole and detention authority of the Secretary or his designees. The Secretary or his designees may invoke, in the exercise of discretion, the authority under section 212(d)(5)(A) of the Act. (b) Parole from custody. (1) Aliens who have serious medical conditions in which continued detention would not be appropriate; (2) Women who have been medically certified as pregnant; (3) Aliens who are defined as minors in § 236.3(b) of this chapter and are in DHS custody. The Executive Assistant Director, Enforcement and Removal Operations; directors of field operations; field office directors, deputy field office directors; or chief patrol agents shall follow the guidelines set forth in § 236.3(j) of this chapter and paragraphs (b)(3)(i) through (ii) of this section in determining under what conditions a minor should be paroled from detention: (i) Minors may be released to a parent, legal guardian, or adult relative (brother, sister, aunt, uncle, or grandparent) not in detention. (ii) Minors may be released with an accompanying parent or legal guardian who is in detention. (iii) If the Service cannot locate a relative in or out of detention to sponsor the minor, but the minor has identified a non-relative in detention who accompanied him or her on arrival, the question of releasing the minor and the accompanying non-relative adult shall be addressed on a case-by-case basis; (4) Aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or (5) Aliens whose continued detention is not in the public interest as determined by those officials identified in paragraph (a) of this section. (c) In the case of all other arriving aliens, except those detained under § 235.3(b) or (c) of this chapter and paragraph (b) of this section, those officials listed in paragraph (a) of this section may, after review of the individual case, parole into the United States temporarily in accordance with section 212(d)(5)(A) of the Act, any alien applicant for admission, under such terms and conditions, including those set forth in paragraph (d) of this section, as he or she may deem appropriate. An alien who arrives at a port-of-entry and applies for parole into the United States for the sole purpose of seeking adjustment of status under section 245A of the Act, without benefit of advance authorization as described in paragraph (f) of this section shall be denied parole and detained for removal in accordance with the provisions of § 235.3(b) or (c) of this chapter. An alien seeking to enter the United States for the sole purpose of applying for adjustment of status under section 210 of the Act shall be denied parole and detained for removal under § 235.3(b) or (c) of this chapter, unless the alien has been recommended for approval of such application for adjustment by a consular officer at an Overseas Processing Office. (d) Conditions. (1) The giving of an undertaking by the applicant, counsel, or a sponsor to ensure appearances or departure, and a bond may be required on Form I-352 in such amount as may be deemed appropriate; (2) Community ties such as close relatives with known addresses; and (3) Agreement to reasonable conditions (such as periodic reporting of whereabouts). (e) Termination of parole Automatic. (2)(i) On notice. (ii) An alien who is granted parole into the United States after enactment of the Immigration Reform and Control Act of 1986 for other than the specific purpose of applying for adjustment of status under section 245A of the Act shall not be permitted to avail him or herself of the privilege of adjustment thereunder. Failure to abide by this provision through making such an application will subject the alien to termination of parole status and institution of proceedings under sections 235 and 236 of the Act without the written notice of termination required by § 212.5(e)(2)(i) of this chapter. (iii) Any alien granted parole into the United States so that he or she may transit through the United States in the course of removal from Canada shall have his or her parole status terminated upon notice, as specified in 8 CFR 212.5(e)(2)(i), if he or she makes known to an immigration officer of the United States a fear of persecution or an intention to apply for asylum. Upon termination of parole, any such alien shall be regarded as an arriving alien, and processed accordingly by the Department of Homeland Security. (f) Advance authorization. (g) Parole for certain Cuban nationals. (h) Effect of parole of Cuban and Haitian nationals. (2) A national of Cuba or Haiti shall not be considered to have been paroled in the special status for nationals of Cuba or Haiti, referred to in section 501(e)(1) of the Refugee Education Assistance Act of 1980, Public Law 96-422, as amended, if the individual was paroled into the United States: (i) In the custody of a Federal, State or local law enforcement or prosecutorial authority, for purposes of criminal prosecution in the United States; or (ii) Solely to testify as a witness in proceedings before a judicial, administrative, or legislative body in the United States. [47 FR 30045, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982; 52 FR 16194, May 1, 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450, May 17, 1988; 61 FR 36611, July 12, 1996; 62 FR 10348, Mar. 6, 1997; 65 FR 80294, Dec. 21, 2000; 65 FR 82255, Dec. 28, 2000; 67 FR 39257, June 7, 2002; 68 FR 35152, June 12, 2003; 69 FR 69489, Nov. 29, 2004; 76 FR 53787, Aug. 29, 2011; 84 FR 44525, Aug. 23, 2019; 87 FR 18220, Mar. 29, 2022] § 212.6 Border crossing identification cards. (a) Application for Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the Department of State. (b) Use Application for admission with Non-resident Canadian Border Crossing Card, Form I-185, containing separate waiver authorization; Canadian residents bearing DOS-issued combination B-1/B-2 visa and border crossing card (or similar stamp in a passport). (ii) A Canadian resident who presents a combination B-1/B-2 visa and border crossing card (or similar stamp in a passport) issued by the DOS prior to April 1, 1998, that does not contain a machine-readable biometric identifier, may be admitted on the basis of the nonimmigrant visa only, provided it has not expired and the alien remains otherwise admissible. (2) Application for admission by a national of Mexico—Form DSP-150 issued by the DOS; DOS-issued combination B-1/B-2 visa and border crossing card (or similar stamp in a passport). (ii) The bearer of a combination B-1/B-2 nonimmigrant visa and border crossing card (or similar stamp in a passport) issued by DOS prior to April 1, 1998, that does not contain a machine-readable biometric identifier, may be admitted on the basis of the nonimmigrant visa only, provided it has not expired and the alien remains otherwise admissible. A passport is also required. (iii) Any alien seeking admission as a visitor for business or pleasure, must also present a valid passport with his or her border crossing card, and shall be issued a Form I-94 (see § 1.4) if the alien is applying for admission from: (A) A country other than Mexico or Canada, or (B) Canada if the alien has been in a country other than the United States or Canada since leaving Mexico. (c) Validity. (d) Voidance for reasons other than expiration of the validity of the form At a POE. (ii) If the applicant chooses not to have a hearing, the Form DSP-150 or combined B-1/B-2 visitor visa and non-biometric BCC (or similar stamp in a passport) issued by the DOS, shall be voided and physically cancelled. The alien to whom the card or stamp was issued by the DOS shall be notified of the action taken and the reasons for such action by means of Form I-275, Withdrawal of Application for Admission/Consular Notification, delivered in person or by mailing the Form I-275 to the last known address. The DOS shall be notified of the cancellation of the biometric Form DSP-150 or combined B-1/B-2 visitor visa and non-biometric BCC (or similar stamp in a passport) issued by DOS, by means of a copy of the original Form I-275. Nothing in this paragraph limits the Service's ability to remove an alien pursuant to 8 CFR part 235 where applicable. (2) Within the United States. (3) In Mexico or Canada. (4) Grounds. (e) Replacement. [67 FR 71448, Dec. 2, 2002, as amended at 78 FR 18472, Mar. 27, 2013] § 212.7 Waiver of certain grounds of inadmissibility. (a)(1) Application. (2) Termination of application for lack of prosecution. (3) Decision. (4) Validity. (ii) Except for K-1 and K-2 nonimmigrants and aliens lawfully admitted for permanent residence on a conditional basis, an immigrant waiver of inadmissibility is valid indefinitely, even if the applicant later abandons or otherwise loses lawful permanent resident status. (iii) For a K-1 or K-2 nonimmigrant, approval of the waiver is conditioned on the K-1 nonimmigrant marrying the petitioner; if the K-1 nonimmigrant marries the K nonimmigrant petitioner, the waiver becomes valid indefinitely, subject to paragraph (a)(4)(iv) of this section, even if the applicant later abandons or otherwise loses lawful permanent resident status. If the K-1 does not marry the K nonimmigrant petitioner, the K-1 and K-2 nonimmigrants remain inadmissible for purposes of any application for a benefit on any basis other than the proposed marriage between the K-1 and the K nonimmigrant petitioner. (iv) For an alien lawfully admitted for permanent residence on a conditional basis under section 216 of the Act, removal of the conditions on the alien's status renders the waiver valid indefinitely, even if the applicant later abandons or otherwise loses lawful permanent resident status. Termination of the alien's status as an alien lawfully admitted for permanent residence on a conditional basis also terminates the validity of a waiver of inadmissibility based on sections 212(h) or 212(i) of the Act that was granted to the alien. Separate notification of the termination of the waiver is not required when an alien is notified of the termination of residence under section 216 of the Act, and no appeal will lie from the decision to terminate the waiver on this basis. If the alien challenges the termination in removal proceedings, and the removal proceedings end in the restoration of the alien's status, the waiver will become effective again. (v) Nothing in this subsection precludes USCIS from reopening and reconsidering a decision if the decision is determined to have been made in error. (b) Section 212(g) waivers for certain medical conditions Application. (2) Section 212(a) (1) or (3) (certain mental conditions) Arrangements for submission of medical report. (ii) Submission of statement. (A) The specified facility or specialist agrees to evaluate the alien's mental status and prepare a complete report of the findings of such evaluation. (B) The alien, the alien's sponsoring family member, or another responsible person has made complete financial arrangements for payment of any charges that may be incurred after arrival for studies, care, training and service; (C) The Director, Division of Quarantine, Center for Prevention Services, Centers for Disease Control, Atlanta, GA. 30333 shall be furnished: ( 1 ( 2 (D) The alien shall be in an outpatient, inpatient, study, or other specified status as determined by the responsible local physician or specialist during the initial evaluation. (3) Assurances: Bonds. (c) Section 212(e). (2) An alien is also subject to the foreign residence requirement of section 212(e) of the Act if at the time of admission to the United States as an exchange visitor or at the time of acquisition of exchange visitor status after admission to the United States, the alien was a national or lawful permanent resident of a country which the Director of the United States Information Agency had designated, through public notice in the Federal Register, (3) An alien is also subject to the foreign residence requirement of section 212(e) of the Act if he or she was admitted to the United States as an exchange visitor on or after January 10, 1977 to receive graduate medical education or training, or following admission, acquired such status on or after that date for that purpose. However, an exchange visitor already participating in an exchange program of graduate medical education or training as of January 9, 1977 who was not then subject to the foreign residence requirement of section 212(e) and who proceeds or has proceeded abroad temporarily and is returning to the United States to participate in the same program, continues to be exempt from the foreign residence requirement. (4) A spouse or child admitted to the United States or accorded status under section 101(a)(15)(J) of the Act to accompany or follow to join an exchange visitor who is subject to the foreign residence requirement of section 212(e) of the Act is also subject to that requirement. (5) An alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon his/her spouse or child who is a citizen of the United States or a lawful permanent resident alien, or that he or she cannot return to the country of his or her nationality or last residence because he or she will be subject to persecution on account of race, religion, or political opinion, may apply for a waiver on the form designated by USCIS. The alien's spouse and minor children, if also subject to the foreign residence requirement, may be included in the application, provided the spouse has not been a participant in an exchange program. (6) Each application based upon a claim to exceptional hardship must be accompanied by the certificate of marriage between the applicant and his or her spouse and proof of legal termination of all previous marriages of the applicant and spouse; the birth certificate of any child who is a United States citizen or lawful permanent resident alien, if the application is based upon a claim of exceptional hardship to a child, and evidence of the United States citizenship of the applicant's spouse or child, when the application is based upon a claim of exceptional hardship to a spouse or child who is a citizen of the United States. (7) Evidence of United States citizenship and of status as a lawful permanent resident shall be in the form provided in part 204 of this chapter. An application based upon exceptional hardship shall be supported by a statement, dated and signed by the applicant, giving a detailed explanation of the basis for his or her belief that his or her compliance with the foreign residence requirement of section 212(e) of the Act, as amended, would impose exceptional hardship upon his or her spouse or child who is a citizen of the United States or a lawful permanent resident thereof. The statement shall include all pertinent information concerning the incomes and savings of the applicant and spouse. If exceptional hardship is claimed upon medical grounds, the applicant shall submit a medical certificate from a qualified physician setting forth in terms understandable to a layman the nature and effect of the illness and prognosis as to the period of time the spouse or child will require care or treatment. (8) An application based upon the applicant's belief that he or she cannot return to the country of his or her nationality or last residence because the applicant would be subject to persecution on account of race, religion, or political opinion, must be supported by a statement, dated and signed by the applicant, setting forth in detail why the applicant believes he or she would be subject to persecution. (9) Waivers under Pub. L. 103-416 based on a request by a State Department of Public Health (or equivalent). (i) Eligiblity criteria. (A) They were admitted to the United States under section 101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June 1, 2002, to pursue graduate medical education or training in the United States. (B) They have entered into a bona fide, full-time employment contract for 3 years to practice medicine at a health care facility located in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals (“HHS-designated shortage area”); (C) They agree to commence employment within 90 days of receipt of the waiver under this section and agree to practice medicine for 3 years at the facility named in the waiver application and only in HHS-designated shortage areas. The health care facility named in the waiver application may be operated by: ( 1 ( 2 ( 3 (D) The Department of Public Health, or its equivalent, in the State where the health care facility is located has requested the Director, USIA, to recommend the waiver, and the Director, USIA, submits a favorable waiver recommendation to the Service; and (E) Approval of the waiver will not cause the number of waivers granted pursuant to Pub. L. 103-416 and this section to foreign medical graduates who will practice medicine in the same state to exceed 20 during the current fiscal year. (ii) Decision on waivers under Pub. L. 103-416 and notification to the alien Approval. (B) Denial. (iii) Conditions. (iv) Failure to fulfill the three-year employment contract due to extenuating circumstances. Under section 214(l)(1)(B) of the Act, however, the Service, in the exercise of discretion, may excuse early termination of the foreign medical graduate's 3-year period of employment with the health care facility named in the waiver application due to extenuating circumstances. Extenuating circumstances may include, but are not limited to, closure of the health care facility or hardship to the alien. In determining whether to excuse such early termination of employment, the Service shall base its decision on the specific facts of each case. In all cases, the burden of establishing eligibility for a favorable exercise of discretion rests with the foreign medical graduate. Depending on the circumstances, closure of the health care facility named in the waiver application may, but need not, be considered an extenuating circumstance excusing early termination of employment. Under no circumstances will a foreign medical graduate be eligible to apply for change of status to another nonimmigrant category, for an immigrant visa or for status as a lawful permanent resident prior to completing the requisite 3-year period of employment for a health care facility located in an HHS-designated shortage area. (v) Required evidence. (vi) Notification requirements. (A) Amended H-1B petitions. (B) New H-1B petitions. ( 1 ( 2 ( 3 ( 4 (C) Review of amended and new H-1B petitions for foreign medical graduates granted waivers under Pub. L. 103-416 and who seek to have early termination of employment excused due to extenuating circumstances 1 Amended H-1B petitions. ( 2 New H-1B petitions. (D) Failure to notify the Service of any material changes in employment. (10) The applicant and his or her spouse may be interviewed by an immigration officer in connection with the application and consultation may be had with the Director, United States Information Agency and the sponsor of any exchange program in which the applicant has been a participant. (11) The applicant shall be notified of the decision, and if the application is denied, of the reasons therefor and of the right of appeal in accordance with the provisions of part 103 of this chapter. However, no appeal shall lie from the denial of an application for lack of a favorable recommendation from the Secretary of State. When an interested United States Government agency requests a waiver of the two-year foreign-residence requirement and the Director, United States Information Agency had made a favorable recommendation, the interested agency shall be notified of the decision on its request and, if the request is denied, of the reasons thereof, and of the right of appeal. If the foreign country of the alien's nationality or last residence has furnished statement in writing that it has no objection to his/her being granted a waiver of the foreign residence requirement and the Director, United States Information Agency has made a favorable recommendation, the Director shall be notified of the decision and, if the foreign residence requirement is not waived, of the reasons therefor and of the foregoing right of appeal. However, this “no objection” provision is not applicable to the exchange visitor admitted to the United States on or after January 10, 1977 to receive graduate medical education or training, or who acquired such status on or after that date for such purpose; except that the alien who commenced a program before January 10, 1977 and who was readmitted to the United States on or after that date to continue participation in the same program, is eligible for the “no objection” waiver. (d) Criminal grounds of inadmissibility involving violent or dangerous crimes. (e) Provisional unlawful presence waivers of inadmissibility. (1) Jurisdiction. (2) Provisional unlawful presence waiver; in general. (ii) A pending or an approved provisional unlawful presence waiver does not support the filing of any application for interim immigration benefits, such as employment authorization or an advance parole document. Any application for an advance parole document or employment authorization that is submitted in connection with a provisional unlawful presence waiver application will be rejected. (3) Eligible aliens. (i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver; (ii) Provides biometrics to USCIS at a location in the United States designated by USCIS; (iii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview; (iv) Has a case pending with the Department of State, based on: (A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or (B) Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered; (v) Will depart from the United States to obtain the immigrant visa; and (vi) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act. (4) Ineligible aliens. (i) The alien is under the age of 17; (ii) The alien does not have a case pending with the Department of State, based on: (A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or (B) Selection by the Department of State to participate in the Diversity Visa program under section 203(c) of the Act for the fiscal year for which the alien registered; (iii) The alien is in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver; (iv) The alien is subject to an administratively final order of removal, deportation, or exclusion under any provision of law (including an in absentia (v) CBP or ICE, after service of notice under 8 CFR 241.8, has reinstated a prior order of removal under section 241(a)(5) of the Act, either before the filing of the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending; or (vi) The alien has a pending application with USCIS for lawful permanent resident status. (5) Filing. (ii) An application for a provisional unlawful presence waiver will be rejected and the fee and package returned to the alien if the alien: (A) Fails to pay the required filing fee or correct filing fee for the provisional unlawful presence waiver application; (B) Fails to sign the provisional unlawful presence waiver application; (C) Fails to provide his or her family name, domestic home address, and date of birth; (D) Is under the age of 17; (E) Does not include evidence of: ( 1 ( 2 ( 3 (F) Fails to include documentation evidencing: ( 1 ( 2 (6) Biometrics. (ii) Failure to appear for biometric services. (7) Burden and standard of proof. (8) Adjudication. (9) Notice of decision. (ii) Denial of an application for a provisional unlawful presence waiver is not a final agency action for purposes of section 10(c) of the Administrative Procedure Act, 5 U.S.C. 704. (10) Withdrawal of waiver applications. (11) Appeals and motions to reopen. (12) Approval and conditions. (i) Does not take effect unless, and until, the alien who applied for and obtained the provisional unlawful presence waiver: (A) Departs from the United States; (B) Appears for an immigrant visa interview at a U.S. Embassy or consulate; and (C) Is determined to be otherwise eligible for an immigrant visa by the Department of State in light of the approved provisional unlawful presence waiver. (ii) Waives, upon satisfaction of the conditions described in paragraph (e)(12)(i), the alien's inadmissibility under section 212(a)(9)(B) of the Act only for purposes of the application for an immigrant visa and admission to the United States as an immigrant based on the approved immigrant visa petition upon which a provisional unlawful presence waiver application is based or selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered, with such selection being the basis for the alien's provisional unlawful presence waiver application; (iii) Does not waive any ground of inadmissibility other than, upon satisfaction of the conditions described in paragraph (e)(12)(i), the grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of the Act. (13) Validity. (14) Automatic revocation. (i) The Department of State denies the immigrant visa application after completion of the immigrant visa interview based on a finding that the alien is ineligible to receive an immigrant visa for any reason other than inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of the Act. This automatic revocation does not prevent the alien from applying for a waiver of inadmissibility for unlawful presence under section 212(a)(9)(B)(v) of the Act and 8 CFR 212.7(a) or for any other relief from inadmissibility on any other ground for which a waiver is available and for which the alien may be eligible; (ii) The immigrant visa petition approval associated with the provisional unlawful presence waiver is at any time revoked, withdrawn, or rendered invalid but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition; (iii) The immigrant visa registration is terminated in accordance with section 203(g) of the Act, and has not been reinstated in accordance with section 203(g) of the Act; or (iv) The alien enters or attempts to reenter the United States without inspection and admission or parole at any time after the alien files the provisional unlawful presence waiver application and before the approval of the provisional unlawful presence waiver takes effect in accordance with paragraph (e)(12) of this section. (Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C. 1103, 1153, 1182) [29 FR 12584, Sept. 4, 1964] Editorial Note: For Federal Register www.govinfo.gov. §§ 212.8-212.9 [Reserved] § 212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240. [76 FR 53787, Aug. 29, 2011] § 212.11 [Reserved] § 212.12 Parole determinations and revocations respecting Mariel Cubans. (a) Scope. Mariel Cuban Service (b) Parole authority and decision. (1) Parole decisions. (2) Additional delegation of authority. (c) Review Plan Director. (d) Recommendations to the Associate Commissioner for Enforcement. (1) Review Panels. (2) Criteria for Review. (i) The detainee is presently a nonviolent person; (ii) The detainee is likely to remain nonviolent; (iii) The detainee is not likely to pose a threat to the community following his release; and (iv) The detainee is not likely to violate the conditions of his parole. (3) Factors for consideration. (i) The nature and number of disciplinary infractions or incident reports received while in custody; (ii) The detainee's past history of criminal behavior; (iii) Any psychiatric and psychological reports pertaining to the detainee's mental health; (iv) Institutional progress relating to participation in work, educational and vocational programs; (v) His ties to the United States, such as the number of close relatives residing lawfully here; (vi) The likelihood that he may abscond, such as from any sponsorship program; and (vii) Any other information which is probative of whether the detainee is likely to adjust to life in a community, is likely to engage in future acts of violence, is likely to engage in future criminal activity, or is likely to violate the conditions of his parole. (4) Procedure for review. (i) Record review. (ii) Personal interview. (iii) Panel recommendation. (e) Withdrawal of parole approval. (f) Sponsorship. (1) Placement by the Public Health Service in an approved halfway house or mental health project; (2) Placement by the Community Relations Service in an approved halfway house or community project; and (3) Placement with a close relative such as a parent, spouse, child, or sibling who is a lawful permanent resident or a citizen of the United States. (g) Timing of reviews. (1) Parole revocation cases. (2) Continued detention cases. (3) Discretionary reviews. (h) Revocation of parole. (1) The purposes of parole have been served; (2) The Mariel Cuban violates any condition of parole; (3) It is appropriate to enforce an order of exclusion or to commence proceedings against a Mariel Cuban; or (4) The period of parole has expired without being renewed. [52 FR 48802, Dec. 28, 1987, as amended at 59 FR 13870, Mar. 24, 1994; 65 FR 80294, Dec. 21, 2000] § 212.13 [Reserved] § 212.14 Parole determinations for alien witnesses and informants for whom a law enforcement authority (“LEA”) will request S classification. (a) Parole authority. (1) Grounds of eligibility. (i) Establishes its intention to file, within 30 days after the alien's arrival in the United States, an application for S nonimmigrant status on the form designated for such purposes, with the Assistant Attorney General, Criminal Division, Department of Justice, in accordance with the instructions on or attached to the form, which will include the names of qualified family members for whom parole is sought; (ii) Specifies the particular operational reasons and basis for the request, and agrees to assume responsibility for the alien during the period of the alien's temporary stay in the United States, including maintaining control and supervision of the alien and the alien's whereabouts and activities, and further specifies any other terms and conditions specified by the Service during the period for which the parole is authorized; (iii) Agrees to advise the Service of the alien's failure to report quarterly any criminal conduct by the alien, or any other activity or behavior on the alien's part that may constitute a ground of excludability or deportability; (iv) Assumes responsibility for ensuring the alien's departure on the date of termination of the authorized parole (unless the alien has been admitted in S nonimmigrant classification pursuant to the terms of paragraph (a)(2) of this section), provides any and all assistance needed by the Service, if necessary, to ensure departure, and verifies departure in a manner acceptable to the Service; (v) Provide LEA seat-of-government certification that parole of the alien is essential to an investigation or prosecution, is in the national interest, and is requested pursuant to the terms and authority of section 212(d)(5) of the Act; (vi) Agrees that no promises may be, have been, or will be made by the LEA to the alien that the alien will or may: (A) Remain in the United States in parole status or any other nonimmigrant classification; (B) Adjust status to that of lawful permanent resident; or (C) Otherwise attempt to remain beyond the authorized parole. The alien (and any family member of the alien who is 18 years of age or older) shall sign a statement acknowledging an awareness that parole only authorizes a temporary stay in the United States and does not convey the benefits of S nonimmigrant classification, any other nonimmigrant classification, or any entitlement to further benefits under the Act; and (vii) Provides, in the case of a request for the release of an alien from Service custody, certification that the alien is eligible for parole pursuant to § 235.3 of this chapter. (2) Authorization. (ii) Upon notification of approval of a request for parole, the LEA will advise the Commissioner of the date, time, and place of the arrival of the alien. The Commissioner will coordinate the arrival of the alien in parole status with the port director prior to the time of arrival. (iii) Parole will be authorized for a period of thirty (30) days to commence upon the alien's arrival in the United States in order for the LEA to submit the completed application to the Assistant Attorney General, Criminal Division. Upon the submission to the Assistant Attorney General of the completed application for S classification, the period of parole will be automatically extended while the request is being reviewed. The Assistant Attorney General, Criminal Division, will notify the Commissioner of the submission of the application. (b) Termination of parole General. (2) Termination of parole and admission in S classification. (i) Terminate the alien's parole status; (ii) Determine eligibility for waivers; and (iii) Admit the alien in S nonimmigrant classification pursuant to the terms and conditions of section 101(a)(15(S) of the Act and 8 CFR 214.2(t). (c) Departure. (d) Failure to comply with procedures. [60 FR 44265, Aug. 25, 1995, as amended at 76 FR 53787, Aug. 29, 2011] § 212.15 Certificates for foreign health care workers. (a) General certification requirements. (2) In the alternative, an eligible alien who seeks to enter the United States for the primary purpose of performing labor as a nurse may present a certified statement as provided in paragraph (h) of this section. (3) A certificate or certified statement described in this section does not constitute professional authorization to practice in that health care occupation. (b) Inapplicability of the ground of inadmissibility. (1) Physicians; (2) Aliens seeking admission to the United States to perform services in a non-clinical health care occupation. A non-clinical care occupation is one in which the alien is not required to perform direct or indirect patient care. Occupations which are considered to be non-clinical include, but are not limited to, medical teachers, medical researchers, and managers of health care facilities; (3) Aliens coming to the United States to receive training as an H-3 nonimmigrant, or receiving training as part of an F or J nonimmigrant program. (4) The spouse and dependent children of any immigrant or nonimmigrant alien; (5) Any alien applying for adjustment of status to that of a permanent resident under any provision of law other than under section 245 of the Act, or any alien who is seeking adjustment of status under section 245 of the Act on the basis of a relative visa petition approved under section 203(a) of the Act, or any alien seeking adjustment of status under section 245 of the Act on the basis of an employment-based petition approved pursuant to section 203(b) of the Act for employment that does not fall under one of the covered health care occupations listed in paragraph (c) of this section. (c) Covered health care occupations. (1) Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses. (2) Occupational Therapists. (3) Physical Therapists. (4) Speech Language Pathologists and Audiologists. (5) Medical Technologists (Clinical Laboratory Scientists). (6) Physician Assistants. (7) Medical Technicians (Clinical Laboratory Technicians) (d) Presentation of certificate or certified statements Aliens required to obtain visas. (2) Aliens not requiring a nonimmigrant visa. (e) Approved credentialing organizations for health care workers. Federal Register. (1) The Commission on Graduates of Foreign Nursing Schools (CGFNS) is authorized to issue certificates under section 212(a)(5)(C) of the Act for nurses, physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists (also known as clinical laboratory scientists), medical technicians (also known as clinical laboratory technicians), and physician assistants. (2) The National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certificates in the field of occupational therapy pending final adjudication of its credentialing status under this part. (3) The Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certificates in the field of physical therapy pending final adjudication of its credentialing status under this part. (f) Requirements for issuance of health care certification. (i) That the alien's education, training, license, and experience are comparable with that required for an American health care worker of the same type; (ii) That the alien's education, training, license, and experience are authentic and, in the case of a license, unencumbered; (iii) That the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States. This verification is not binding on the DHS; and (iv) Either that the alien has passed a test predicting success on the occupation's licensing or certification examination, provided such a test is recognized by a majority of states licensing the occupation for which the certification is issued, or that the alien has passed the occupation's licensing or certification examination. (2) A certificate issued under section 212(a)(5)(C) of the Act must contain the following: (i) The name, address, and telephone number of the credentialing organization, and a point of contact to verify the validity of the certificate; (ii) The date the certificate was issued; (iii) The health care occupation for which the certificate was issued; and (iv) The alien's name, and date and place of birth. (g) English language requirements. Federal Register. (2) The following aliens are exempt from the English language requirements: (i) Alien nurses who are presenting a certified statement under section 212(r) of the Act; and (ii) Aliens who have graduated from a college, university, or professional training school located in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, or the United States. (3) The following English testing services have been approved by the Secretary of HHS: (i) Educational Testing Service (ETS). (ii) Test of English in International Communication (TOEIC) Service International. (iii) International English Language Testing System (IELTS). (4) Passing English test scores for various occupations. (i) Occupational and physical therapists. (ii) Registered nurses and other health care workers requiring the attainment of a baccalaureate degree. (A) ETS: TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE: 50; (B) TOEIC Service International: TOEIC: 725; plus TWE: 4.0 and TSE: 50; or (C) IELTS: 6.5 overall with a spoken band score of 7.0. This would require the Academic module. (iii) Occupations requiring less than a baccalaureate degree. (A) ETS: TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE: 50; (B) TOEIC Service International: TOEIC: 700; plus TWE 4.0 and TSE: 50; or (C) IELTS: 6.0 overall with a spoken band score of 7.0. This would allow either the Academic or the General module. (h) Alternative certified statement for certain nurses. Federal Register. (2) An approved credentialing organization may issue a certified statement to an alien if each of the following requirements is satisfied: (i) The alien has a valid and unrestricted license as a nurse in a state where the alien intends to be employed and such state verifies that the foreign licenses of alien nurses are authentic and unencumbered; (ii) The alien has passed the National Council Licensure Examination for registered nurses (NCLEX-RN); (iii) The alien is a graduate of a nursing program in which the language of instruction was English; (iv) The nursing program was located in Australia, Canada (except Quebec), Ireland, New Zealand, South Africa, the United Kingdom, or the United States; or in any other country designated by unanimous agreement of CGFNS and any equivalent credentialing organizations which have been approved for the certification of nurses and which are listed at paragraph (e) of this section; and (v) The nursing program was in operation on or before November 12, 1999, or has been approved by unanimous agreement of CGFNS and any equivalent credentialing organizations that have been approved for the certification of nurses. (3) An individual who obtains a certified statement need not comply with the certificate requirements of paragraph (f) or the English language requirements of paragraph (g) of this section. (4) A certified statement issued to a nurse under section 212(r) of the Act must contain the following information: (i) The name, address, and telephone number of the credentialing organization, and a point of contact to verify the validity of the certified statement; (ii) The date the certified statement was issued; and (iii) The alien's name, and date and place of birth. (i) Streamlined certification process Nurses. (2) Occupational Therapists. (3) Physical therapists. (4) Speech language pathologists and audiologists. (j) Application process for credentialing organizations Organizations other than CGFNS. (i) Clearly describe and identify the organization seeking authorization to issue certificates; (ii) List the occupations for which the organization desires to provide certificates; (iii) Describe how the organization substantially meets the standards described at paragraph (k) of this section; (iv) Describe the organization's expertise, knowledge, and experience in the health care occupation(s) for which it desires to issue certificates; (v) Provide a point of contact; (vi) Describe the verification procedure the organization has designed in order for the DHS to verify the validity of a certificate; and (vii) Describe how the organization will process and issue in a timely manner the certificates. (2) Applications filed by CGFNS. (ii) Prior to issuing certificates for any other health care occupations, CGFNS must apply on the form designated by USCIS with the fee prescribed in 8 CFR 106.2 and in accordance with the form instructions for authorization to issue such certificates. The DHS will evaluate CGFNS' expertise with respect to the particular health care occupation for which authorization to issue certificates is sought, in light of CGFNS' statutory designation as a credentialing organization. (3) Procedure for review of applications by credentialing organizations. (ii) The DHS will notify the organization of the decision on its application in writing and, if the request is denied, of the reasons for the denial. Approval of authorization to issue certificates to foreign health care workers or certified statements to nurses will be made in 5-year increments, subject to the review process described at paragraph (l) of this section. (iii) If the application is denied, the decision may be appealed pursuant to 8 CFR 103.3. (k) Standards for credentialing organizations. (1) Structure of the organization. (ii)(A) The organization shall be independent of any organization that functions as a representative of the occupation or profession in question or serves as or is related to a recruitment/placement organization. (B) The DHS shall not approve an organization that is unable to render impartial advice regarding an individual's qualifications regarding training, experience, and licensure. (C) The organization must also be independent in all decision making matters pertaining to evaluations and/or examinations that it develops including, but not limited to: policies and procedures; eligibility requirements and application processing; standards for granting certificates and their renewal; examination content, development, and administration; examination cut-off scores, excluding those pertaining to English language requirements; grievance and disciplinary processes; governing body and committee meeting rules; publications about qualifying for a certificate and its renewal; setting fees for application and all other services provided as part of the screening process; funding, spending, and budget authority related to the operation of the certification organization; ability to enter into contracts and grant arrangements; ability to demonstrate adequate staffing and management resources to conduct the program(s) including the authority to approve selection of, evaluate, and initiate dismissal of the chief staff member. (D) An organization whose fees are based on whether an applicant receives a visa may not be approved. (iii) The organization shall include the following representation in the portion of its organization responsible for overseeing certification and, where applicable, examinations: (A) Individuals from the same health care discipline as the alien health care worker being evaluated who are eligible to practice in the United States; and (B) At least one voting public member to represent the interests of consumers and protect the interests of the public at large. The public member shall not be a member of the discipline or derive significant income from the discipline, its related organizations, or the organization issuing the certificate. (iv) The organization must have a balanced representation such that the individuals from the same health care discipline, the voting public members, and any other appointed individuals have an equal say in matters relating to credentialing and/or examinations. (v) The organization must select representatives of the discipline using one of the following recommended methods, or demonstrate that it has a selection process that meets the intent of these methods: (A) Be selected directly by members of the discipline eligible to practice in the United States; (B) Be selected by members of a membership organization representing the discipline or by duly elected representatives of a membership organization; or (C) Be selected by a membership organization representing the discipline from a list of acceptable candidates supplied by the credentialing body. (vi) The organization shall use formal procedures for the selection of members of the governing body that prohibit the governing body from selecting a majority of its successors. Not-for-profit corporations which have difficulty meeting this requirement may provide in their applications evidence that the organization is independent, and free of material conflicts of interest regarding whether an alien receives a visa. (vii) The organization shall be separate from the accreditation and educational functions of the discipline, except for those entities recognized by the Department of Education as having satisfied the requirement of independence. (viii) The organization shall publish and make available a document which clearly defines the responsibilities of the organization and outlines any other activities, arrangements, or agreements of the organization that are not directly related to the certification of health care workers. (2) Resources of the organization. (ii) The organization shall demonstrate the availability of financial and material resources to effectively and thoroughly conduct regular and ongoing evaluations on an international basis. (iii) If the health care field is one for which a majority of the states require a predictor test, the organization shall demonstrate the ability to conduct examinations in those countries with educational and evaluation systems comparable to the majority of states. (iv) The organization shall have the resources to publish and make available general descriptive materials on the procedures used to evaluate and validate credentials, including eligibility requirements, determination procedures, examination schedules, locations, fees, reporting of results, and disciplinary and grievance procedures. (3) Candidate evaluation and testing mechanisms. (ii) The organization shall use reliable evaluation/examination mechanisms to evaluate individual credentials and competence that is objective, fair to all candidates, job related, and based on knowledge and skills needed in the discipline. (iii) The organization shall conduct ongoing studies to substantiate the reliability and validity of the evaluation/examination mechanisms. (iv) The organization shall implement a formal policy of periodic review of the evaluation/examination mechanism to ensure ongoing relevance of the mechanism with respect to knowledge and skills needed in the discipline. (v) The organization shall use policies and procedures to ensure that all aspects of the evaluation/examination procedures, as well as the development and administration of any tests, are secure. (vi) The organization shall institute procedures to protect against falsification of documents and misrepresentation, including a policy to request each applicant's transcript(s) and degree(s) directly from the educational licensing authorities. (vii) The organization shall establish policies and procedures that govern the length of time the applicant's records must be kept in their original format. (viii) The organization shall publish and make available, at least annually, a summary of all screening activities for each discipline including, at least, the number of applications received, the number of applicants evaluated, the number receiving certificates, the number who failed, and the number receiving renewals. (4) Responsibilities to applicants applying for an initial certificate or renewal. (ii) The organization shall provide all applicants with copies of formalized application procedures for evaluation/examination and shall uniformly follow and enforce such procedures for all applicants. Instructions shall include standards regarding English language requirements. (iii) The organization shall implement a formal policy for the periodic review of eligibility criteria and application procedures to ensure that they are fair and equitable. (iv) Where examinations are used, the organization shall provide competently proctored examination sites at least once annually. (v) The organization shall report examination results to applicants in a uniform and timely fashion. (vi) The organization shall provide applicants who failed either the evaluation or examination with information on general areas of deficiency. (vii) The organization shall implement policies and procedures to ensure that each applicant's examination results are held confidential and delineate the circumstances under which the applicant's certification status may be made public. (viii) The organization shall have a formal policy for renewing the certification if an individual's original certification has expired before the individual first seeks admission to the United States or applies for adjustment of status. Such procedures shall be restricted to updating information on licensure to determine the existence of any adverse actions and the need to re-establish English competency. (ix) The organization shall publish due process policies and procedures for applicants to question eligibility determinations, examination or evaluation results, and eligibility status. (x) The organization shall provide all qualified applicants with a certificate in a timely manner. (5) Maintenance of comprehensive and current information. (ii) The organization shall also evaluate the licensing and credentialing system(s) of each country or licensing jurisdiction to determine which systems are equivalent to that of the majority of the licensing jurisdictions in the United States. (6) Ability to conduct examinations fairly and impartially. (7) Criteria for awarding and governing certificate holders. (ii) The organization shall have policies and procedures for the revocation of certificates at any time if it is determined that the certificate holder was not eligible to receive the certificate at the time that it was issued. If the organization revokes an individual's certificate, it must notify the DHS, via the Nebraska Service Center, and the appropriate state regulatory authority with jurisdiction over the individual's health care profession. The organization may not reissue a certificate to an individual whose certificate has been revoked. (8) Criteria for maintaining accreditation. (ii) The organization shall advise the DHS of any major changes in the evaluation of credentials and examination techniques, if any, or in the scope or objectives of such examinations. (iii) The organization shall, upon the request of the DHS, submit to the DHS, or any organization designated by the DHS, information requested of the organization and its programs for use in investigating allegations of non-compliance with standards and for general purposes of determining continued approval as an independent credentialing organization. (iv) The organization shall establish performance outcome measures that track the ability of the certificate holders to pass United States licensure or certification examinations. The purpose of the process is to ensure that certificate holders pass United States licensure or certification examinations at the same pass rate as graduates of United States programs. Failure to establish such measures, or having a record showing an inability of persons granted certificates to pass United States licensure examinations at the same rate as graduates of United States programs, may result in a ground for termination of approval. Information regarding the passage rates of certificate holders shall be maintained by the organization and provided to HHS on an annual basis, to the DHS as part of the 5-year reauthorization application, and at any other time upon request by HHS or the DHS. (v) The organization shall be in ongoing compliance with other policies specified by the DHS. (l) DHS review of the performance of certifying organizations. (m) Termination of certifying organizations. (2) If the DHS determines that an organization is not complying with the terms of its authorization or other adverse information relating to eligibility to issue certificates is uncovered during the course of a review or otherwise brought to the DHS' attention, or if the DHS determines that an organization currently authorized to issue certificates or certified statements has not submitted an application or provided all information required on the request within 6 months of July 25, 2003, the DHS will issue a Notice of Intent to Terminate authorization to issue certificates to the credentialing organization. The Notice shall set forth reasons for the proposed termination. (i) The credentialing organization shall have 30 days from the date of the Notice of Intent to Terminate authorization to rebut the allegations, or to cure the noncompliance identified in the DHS's notice of intent to terminate. (ii) DHS will forward to HHS upon receipt any information received in response to a Notice of Intent to Terminate an entity's authorization to issue certificates. Thirty days after the date of the Notice of Intent to Terminate, the DHS shall forward any additional evidence and shall request an opinion from HHS regarding whether the organization's authorization should be terminated. The DHS shall accord HHS' opinion great weight in determining whether the authorization should be terminated. After consideration of the rebuttal evidence, if any, and consideration of HHS' opinion, the DHS will promptly provide the organization with a written decision. If termination of credentialing status is made, the written decision shall set forth the reasons for the termination. (3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to the Associate Commissioner for Examinations. Termination of credentialing status shall remain in effect until and unless the terminated organization reapplies for credentialing status and is approved, or its appeal of the termination decision is sustained by the Administrative Appeals Office. There is no waiting period for an organization to re-apply for credentialing status. (n) Transition One year waiver. (ii) After July 26, 2004 (or, after July 26, 2005, in the case of a citizen of Canada or Mexico, who, before September 23, 2003, was employed as a TN or TC nonimmigrant health care worker and held a valid license from a U.S. jurisdiction), such discretion shall be applied on a case-by-case basis. (2) Conditions. (i) The admission, extension of stay, or change of status may not be for a period longer than 1 year from the date of the decision, even if the relevant provision of 8 CFR 214.2 would ordinarily permit the alien's admission for a longer period; (ii) The alien must obtain the certification required by paragraph (a) of this section within 1 year of the date of decision to admit the alien or to extend the alien's stay or change the alien's status; and, (iii) Any subsequent petition or application to extend the period of the alien's authorized stay or change the alien's nonimmigrant status must include proof that the alien has obtained the certification required by paragraph (a) of this section, if the extension or stay or change of status is sought for the primary purpose of the alien's performing labor in a health care occupation listed in paragraph (c) of this section. (3) Immigrant aliens. (4) Expiration of certificate or certified statement. (5) Revocation of certificate or certified statement. [68 FR 43915, July 25, 2003, as amended at 69 FR 43731, July 22, 2004; 74 FR 26938, June 5, 2009; 76 FR 53788, Aug. 29, 2011; 76 FR 73477, Nov. 29, 2011; 85 FR 46923, Aug. 3, 2020] § 212.16 Applications for exercise of discretion relating to T nonimmigrant status. (a) Requesting the waiver. (b) Treatment of waiver request. (1) National interest. (2) Connection to victimization. (3) Criminal grounds. (c) No appeal. (d) Revocation. [89 FR 34930, Apr. 30, 2024] § 212.17 Applications for the exercise of discretion relating to U nonimmigrant status. (a) Filing the waiver application. (b) Treatment of waiver application. (2) In the case of applicants inadmissible on criminal or related grounds, in exercising its discretion USCIS will consider the number and severity of the offenses of which the applicant has been convicted. In cases involving violent or dangerous crimes or inadmissibility based on the security and related grounds in section 212(a)(3) of the Act, USCIS will only exercise favorable discretion in extraordinary circumstances. (3) There is no appeal of a decision to deny a waiver. However, nothing in this paragraph is intended to prevent an applicant from re-filing a request for a waiver of ground of inadmissibility in appropriate cases. (c) Revocation. [72 FR 53035, Sept. 17, 2007, as amended at 76 FR 53788, Aug. 29, 2011] § 212.18 Applications for waivers of inadmissibility in connection with an application for adjustment of status by T nonimmigrant status holders. (a) Filing the waiver application. l (1) A completed Form I-485 application package; (2) The appropriate fee in accordance with 8 CFR 106.2 or an application for a fee waiver; and, as applicable, (3) Form I-601, Application for Waiver of Grounds of Excludability. (b) Treatment of waiver application. (2) If an applicant is inadmissible under section 212(a)(1) of the Act, USCIS may waive such inadmissibility if it determines that granting a waiver is in the national interest. (3) If any other applicable provision of section 212(a) renders the applicant inadmissible, USCIS may grant a waiver of inadmissibility if the activities rendering the applicant inadmissible were caused by or were incident to the victimization and USCIS determines that it is in the national interest to waive the applicable ground or grounds of inadmissibility. (c) Other waivers. (d) Revocation. [73 FR 75557, Dec. 12, 2008, as amended at 84 FR 41501, Aug. 14, 2019; 85 FR 46923, Aug. 3, 2020; 86 FR 14227, Mar. 15, 2021; 87 FR 55636, Sept. 9, 2022] § 212.19 Parole for entrepreneurs. (a) Definitions. (1) Entrepreneur (2) Start-up entity (3) Qualified government award or grant (4) Qualified investment (5) Qualified investor (i) The individual or organization made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such 5-year period of no less than $746,571; and (ii) Subsequent to such investment by such individual or organization, at least 2 such entities each created at least 5 qualified jobs or generated at least $622,142 in revenue with average annualized revenue growth of at least 20 percent. (6) Qualified job (7) Qualifying employee (8) Full-time employment (9) U.S. business entity (10) Material change (b) Initial parole Filing of initial parole request form. (2) Criteria for consideration In general. (ii) General criteria. (A) Demonstrating that the alien is an entrepreneur as defined in paragraph (a)(1) of this section and that his or her entity is a start-up entity as defined in paragraph (a)(2) of this section; and (B) Establishing that the alien's entity has: ( 1 ( 2 (iii) Alternative criteria. (c) Additional periods of parole Filing of re-parole request form. (2) Criteria for consideration In general. (ii) General criteria. (A) Demonstrating that the alien continues to be an entrepreneur as defined in paragraph (a)(1) of this section and that his or her entity continues to be a start-up entity as defined in paragraph (a)(2) of this section; and (B) Establishing that the alien's entity has: ( 1 ( 2 ( 3 (iii) Alternative criteria. (d) Discretionary authority; decision; appeals and motions to reopen Discretionary authority. (2) Initial parole. (3) Re-parole. (4) Appeals and motions to reopen. (e) Collection of biometric information. (f) Limitations. (g) Employment authorization. (h) Spouse and children. (2) The spouse and children of an entrepreneur granted parole under this section may be granted parole under this section for no longer than the period of parole granted to such entrepreneur. (3) The spouse of the entrepreneur parolee, after being paroled into the United States, may be eligible for employment authorization on the basis of parole under this section. To request employment authorization, an eligible spouse paroled into the United States must file an Application for Employment Authorization (Form I-765), in accordance with 8 CFR 274a.13 and form instructions. An Application for Employment Authorization must be accompanied by documentary evidence establishing eligibility, including evidence of the spousal relationship. (4) Notwithstanding 8 CFR 274a.12(c)(11), a child of the entrepreneur parolee may not be authorized for and may not accept employment on the basis of parole under this section. (i) Conditions on parole. (j) Reporting of material changes. (k) Termination of parole In general. (2) Automatic termination. (3) Termination on notice. (i) The facts or information contained in the request for parole were not true and accurate; (ii) The alien failed to timely file or otherwise comply with the material change reporting requirements in this section; (iii) The entrepreneur parolee is no longer employed in a central and active role by the start-up entity or ceases to possess a qualifying ownership stake in the start-up entity; (iv) The alien otherwise violated the terms and conditions of parole; or (v) Parole was erroneously granted. (4) Notice and decision. (l) Increase of investment and revenue amount requirements. www.uscis.gov. [82 FR 5286, Jan. 17, 2017, as amended at 85 FR 46923, Aug. 3, 2020; 86 FR 50841, Sept. 13, 2021; 89 FR 6396, Jan. 31, 2024; 89 FR 60301, July 25, 2024] § 212.20 Applicability of public charge inadmissibility. Link to an amendment published at 91 FR 45477, July 20, 2026. 8 CFR 212.20 through 212.23 address the public charge ground of inadmissibility under section 212(a)(4) of the Act. Unless the alien requesting the immigration benefit or classification has been exempted from section 212(a)(4) of the Act as listed in § 212.23(a), the provisions of §§ 212.20 through 212.23 of this part apply to an applicant for admission or adjustment of status to that of a lawful permanent resident. [87 FR 55636, Sept. 9, 2022] § 212.21 Definitions. Link to an amendment published at 91 FR 45477, July 20, 2026. For the purposes of §§ 212.20 through 212.23, the following definitions apply: (a) Likely at any time to become a public charge (b) Public cash assistance for income maintenance (1) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.; (2) Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program, 42 U.S.C. 601 et seq.; (3) State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names). (c) Long-term institutionalization at government expense (d) Receipt (of public benefits). (e) Government (f) Household: (1) The alien; (2) The alien's spouse, if physically residing with the alien; (3) If physically residing with the alien, the alien's parents, the alien's unmarried siblings under 21 years of age, and the alien's children as defined in section 101(b)(1) of the Act; (4) Any other individuals (including a spouse or child as defined in section 101(b)(1) of the Act not physically residing with the alien) who are listed as dependents on the alien's federal income tax return; and (5) Any other individual(s) who lists the alien as a dependent on their federal income tax return. [87 FR 55636, Sept. 9, 2022] § 212.22 Public charge inadmissibility determination. Link to an amendment published at 91 FR 45477, July 20, 2026. (a) Factors to consider Consideration of minimum factors: (i) Age; (ii) Health, as evidenced by a report of an immigration medical examination performed by a civil surgeon or panel physician where such examination is required (to which DHS will generally defer absent evidence that such report is incomplete); (iii) Family status, as evidenced by the alien's household size, based on the definition of household in § 212.21(f); (iv) Assets, resources, and financial status, as evidenced by the alien's household's income, assets, and liabilities (excluding any income from public benefits listed in § 212.21(b) and income or assets from illegal activities or sources such as proceeds from illegal gambling or drug sales); and (v) Education and skills, as evidenced by the alien's degrees, certifications, licenses, skills obtained through work experience or educational programs, and educational certificates. (2) Consideration of affidavit of support. (3) Consideration of current and/or past receipt of public benefits: (4) Disability alone not sufficient. (b) Totality of the circumstances. (c) Denial Decision. (d) Receipt of public benefits while an alien is in an immigration category exempt from public charge inadmissibility. (e) Receipt of benefits available to refugees. [87 FR 55636, Sept. 9, 2022] § 212.23 Exemptions and waivers for public charge ground of inadmissibility. Link to an amendment published at 91 FR 45477, July 20, 2026. (a) Exemptions. (1) Refugees at the time of admission under section 207 of the Act and at the time of adjustment of status to lawful permanent resident under section 209 of the Act; (2) Asylees at the time of grant under section 208 of the Act and at the time of adjustment of status to lawful permanent resident under section 209 of the Act; (3) Amerasian immigrants at the time of application for admission as described in sections 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, Public Law 100-202, 101 Stat. 1329-183, section 101(e) (Dec. 22, 1987), as amended, 8 U.S.C. 1101 note; (4) Afghan and Iraqi Interpreters, or Afghan or Iraqi nationals employed by or on behalf of the U.S. Government as described in section 1059(a)(2) of the National Defense Authorization Act for Fiscal Year 2006 Public Law 109-163 (Jan. 6, 2006), as amended, and section 602(b) of the Afghan Allies Protection Act of 2009, Public Law 111-8, title VI (Mar. 11, 2009), as amended, 8 U.S.C. 1101 note, and section 1244(g) of the National Defense Authorization Act for Fiscal Year 2008, as amended, Public Law 110-181 (Jan. 28, 2008); (5) Cuban and Haitian entrants applying for adjustment of status under section 202 of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (Nov. 6, 1986), as amended, 8 U.S.C. 1255a note; (6) Aliens applying for adjustment of status under the Cuban Adjustment Act, Public Law 89-732 (Nov. 2, 1966), as amended, 8 U.S.C. 1255 note; (7) Nicaraguans and other Central Americans applying for adjustment of status under section 202(a) and section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, 111 Stat. 2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255 note; (8) Haitians applying for adjustment of status under section 902 of the Haitian Refugee Immigration Fairness Act of 1998, Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), as amended, 8 U.S.C. 1255 note; (9) Lautenberg parolees as described in section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, 103 Stat. 1195, title V (Nov. 21, 1989), as amended, 8 U.S.C. 1255 note; (10) Special immigrant juveniles as described in section 245(h) of the Act; (11) Aliens who entered the United States prior to January 1, 1972, and who meet the other conditions for being granted lawful permanent residence under section 249 of the Act and 8 CFR part 249 (Registry); (12) Aliens applying for or reregistering for Temporary Protected Status as described in section 244 of the Act in accordance with section 244(c)(2)(A)(ii) of the Act and 8 CFR 244.3(a); (13) Nonimmigrants described in section 101(a)(15)(A)(i) and (ii) of the Act (Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family or Other Foreign Government Official or Employee, or Immediate Family), in accordance with section 102 of the Act and 22 CFR 41.21(d); (14) Nonimmigrants classifiable as C-2 (alien in transit to U.N. Headquarters) or C-3 (foreign government official), 22 CFR 41.21(d); (15) Nonimmigrants described in section 101(a)(15)(G)(i), (ii), (iii), and (iv), of the Act (Principal Resident Representative of Recognized Foreign Government to International Organization, and related categories), in accordance with section 102 of the Act and 22 CFR 41.21(d); (16) Nonimmigrants classifiable as NATO-1, NATO-2, NATO-3, NATO-4 (NATO representatives), and NATO-6 in accordance with 22 CFR 41.21(d); (17) Applicants for nonimmigrant status under section 101(a)(15)(T) of the Act, in accordance with § 212.16(b); (18) Except as provided in paragraph (b) of this section, individuals who are seeking an immigration benefit for which admissibility is required, including but not limited to adjustment of status under section 245(a) of the Act and section 245(l) of the Act and who: (i) Have a pending application that sets forth a prima facie case for eligibility for nonimmigrant status under section 101(a)(15)(T) of the Act, or (ii) Have been granted nonimmigrant status under section 101(a)(15)(T) of the Act, provided that the individual is in valid T nonimmigrant status at the time the benefit request is properly filed with USCIS and at the time the benefit request is adjudicated; (19) Except as provided in paragraph (b) of this section: (i) Petitioners for nonimmigrant status under section 101(a)(15)(U) of the Act, in accordance with section 212(a)(4)(E)(ii) of the Act; or (ii) Individuals who are granted nonimmigrant status under section 101(a)(15)(U) of the Act in accordance with section 212(a)(4)(E)(ii) of the Act, who are seeking an immigration benefit for which admissibility is required, including, but not limited to, adjustment of status under section 245(a) of the Act, provided that the individuals are in valid U nonimmigrant status at the time the benefit request is properly filed with USCIS and at the time the benefit request is adjudicated; (20) Except as provided in paragraph (b) of this section, any aliens who are VAWA self-petitioners under section 212(a)(4)(E)(i) of the Act; (21) Except as provided in paragraph (b) of this section, qualified aliens described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1641(c), under section 212(a)(4)(E)(iii) of the Act; (22) Applicants adjusting status who qualify for a benefit under section 1703 of the National Defense Authorization Act, Public Law 108-136, 117 Stat. 1392 (Nov. 24, 2003), 8 U.S.C. 1151 note (posthumous benefits to surviving spouses, children, and parents); (23) American Indians born in Canada determined to fall under section 289 of the Act; (24) Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Public Law 97-429 (Jan. 8, 1983); (25) Nationals of Vietnam, Cambodia, and Laos applying for adjustment of status under section 586 of Public Law 106-429 under 8 CFR 245.21; (26) Polish and Hungarian Parolees who were paroled into the United States from November 1, 1989 to December 31, 1991, under section 646(b) of the IIRIRA, Public Law 104-208, Div. C, Title VI, Subtitle D (Sept. 30, 1996), 8 U.S.C. 1255 note; (27) Applicants adjusting status who qualify for a benefit under Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, (28) Certain Syrian nationals adjusting status under Public Law 106-378; and (29) Any other categories of aliens exempt under any other law from the public charge ground of inadmissibility provisions under section 212(a)(4) of the Act. (b) Limited Exemption. (c) Waivers. (1) Applicants for admission as nonimmigrants under 101(a)(15)(S) of the Act; (2) Nonimmigrants admitted under section 101(a)(15)(S) of the Act applying for adjustment of status under section 245(j) of the Act (witnesses or informants); and (3) Any other category of aliens who are eligible to receive a waiver of the public charge ground of inadmissibility. [87 FR 55636, Sept. 9, 2022]

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