PART 1212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); Title VII of Pub. L. 110-229; Pub. L. 115-218. Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted. Duplicated from part 212 at 68 FR 9535, Feb. 28, 2003. Editorial Note: Nomenclature changes to part 1212 appear at 68 FR 9846, Feb. 28, 2003, and at 68 FR 10353, Mar. 5, 2003. § 1212.1 Documentary requirements for nonimmigrants. A valid unexpired visa and an unexpired passport, valid for the period set forth in section 212(a)(26) of the Act, shall be presented by each arriving nonimmigrant alien except that the passport validity period for an applicant for admission who is a member of a class described in section 102 of the Act is not required to extend beyond the date of his application for admission if so admitted, and except as otherwise provided in the Act, this chapter, and for the following classes: (a) Canadian nationals, and aliens having a common nationality with nationals of Canada or with British subjects in Bermuda, Bahamian nationals or British subjects resident in Bahamas, Cayman Islands, and Turks and Caicos Islands. (b) Certain Caribbean residents British, French, and Netherlands nationals, and nationals of certain adjacent islands of the Caribbean which are independent countries. (i) Is proceeding to the United States as an agricultural worker; (ii) Is the beneficiary of a valid, unexpired indefinite certification granted by the Department of Labor for employment in the Virgin Islands of the United States and is proceeding to the Virgin Islands of the United States for such purpose, or (iii) Is the spouse or child of an alien described in paragraph (b)(1)(i) or (b)(1)(ii) of this section, and is accompanying or following to join him or her. (2) Nationals of the British Virgin Islands. (i) The alien is seeking admission solely to visit the Virgin Islands of the United States; or (ii) At the time of embarking on an aircraft at St. Thomas, U.S. Virgin Islands, the alien meets each of the following requirements: (A) 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); (B) The alien satisfies the examining U.S. Immigration officer at the port-of-entry that he or she is clearly and beyond a doubt entitled to admission in all other respects; and (C) The alien presents a current Certificate of Good Conduct (c) Mexican nationals. (i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a machine-readable biometric identifier, issued by the DOS and is applying for admission as a temporary visitor for business or pleasure from contiguous territory. (ii) Is a Mexican national entering solely for the purpose of applying for a Mexican passport or other official Mexican document at a Mexican consular office on the United States side of the border. (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 Public Law 99-396, “Omnibus Territories Act” and 8 CFR 212.1(e). (i) Is classifiable as a visitor 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) The DHS regulations for waiver of the visa requirement for aliens entering Guam pursuant to section 14 of Public Law 99-396, prior to November 28, 2009, are set forth at 8 CFR 212.1(e). (3) [Reserved] (4) Admission under 8 CFR 212.1(e) renders an alien ineligible for: (i) Adjustment of status to that of a temporary resident or, except under the provisions of section 245(i) of the Act or as an immediate relative as defined in section 201(b), to that of a lawful permanent resident; (ii) Change of nonimmigrant status; or (iii) Extension of stay. (f) Direct transits Transit without visa. Provided, (2) Unavailability to transit. (3) Foreign government officials in transit. (g) Unforeseen emergency. (h) Nonimmigrant spouses, fiancées, fiancés, and children of U.S. citizens. (i) Visa Waiver Pilot 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) Alien in Q-2 classification. (o) Alien in T-2 through T-4 classification. (p) [Reserved] (q) Aliens admissible under the Guam-CNMI Visa Waiver Program and 8 CFR 212.1(q) Eligibility for Program. (i) Be a national of a country or geographic area listed in 8 CFR 212.1(q)(2); (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) 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, 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 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; and (xi) If a resident of Taiwan, possess a Taiwan National Identity Card and a valid Taiwan passport with a valid re-entry permit issued by the Taiwan Ministry of Foreign Affairs. (2) Implementing regulations. (3) [Reserved] (4) Admission under 8 CFR 212.1(q). (i) Adjustment of status to that of a temporary resident or, except as provided by section 245(i) of the Act, other than 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)-(7) [Reserved] (8) Inadmissibility and Deportability Determinations of inadmissibility. (B) [Reserved] (C) Refusal of admission under this paragraph or 8 CFR 212.1(q)(8)(i) shall not constitute removal for purposes of the Act. (ii) Determination of deportability. (B) Removal by DHS under paragraph (b)(1) of this section or 8 CFR 212.1(q)(8)(ii) is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act. (iii) [Reserved] (Secs. 103, 104, 212 of the Immigration and Nationality Act, as amended (8 U.S.C. 1103, 1104, 1132)) [26 FR 12066, Dec. 16, 1961] Editorial Note: For Federal Register www.govinfo.gov. § 1212.2 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 Form I-212 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 an application on Form I-212 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 Form I-212 to the Service office with jurisdiction over the area within which the consular officer is located. 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. (i) The district director having jurisdiction over the place where the deportation or removal proceedings were held; or (ii) The district director who exercised or is exercising jurisdiction over the applicant's most recent proceeding. (2) If the applicant is physically present in the United States but is ineligible to apply for adjustment of status, he or she must file the application with the district director having jurisdiction over his or her place of residence. (3) If an alien who is an applicant for parole authorization under § 245.15(t)(2) of 8 CFR chapter I 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, he or she may file the requisite Form I-212 or Form I-601 at the Nebraska Service Center concurrently with the Form I-131, Application for Travel Document. If an alien who is an applicant for parole authorization under § 245.13(k)(2) of 8 CFR chapter I 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, he or she may file the requisite Form I-212 or Form I-601 at the Texas Service Center concurrently with the Form I-131, Application for Travel Document. (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 Form I-212 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] § 1212.3 Application for the exercise of discretion under former section 212(c). (a) Jurisdiction. (b) Filing of application. (c) [Reserved] (d) Validity. (e) Filing or renewal of applications before an immigration judge. (2) The immigration judge may grant or deny an application for relief under section 212(c), in the exercise of discretion, unless such relief is prohibited by paragraph (f) of this section or as otherwise provided by law. (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 § 1003.38 of this chapter. (f) Limitations on discretion to grant an application under section 212(c) of the Act. (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 inadmissibility or exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or (10)(C) of section 212(a) of the Act; (4) The alien has been charged and found to be deportable or removable on the basis of a crime that is an aggravated felony, as defined in section 101(a)(43) of the Act (as in effect at the time the application for section 212(c) relief is adjudicated), except as follows: (i) An alien whose convictions for one or more aggravated felonies were entered pursuant to plea agreements made on or after November 29, 1990, but prior to April 24, 1996, is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies, and (ii) An alien is not ineligible for section 212(c) relief on account of an aggravated felony conviction entered pursuant to a plea agreement that was made before November 29, 1990; or (5) The alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act. (g) Relief for certain aliens who were in deportation proceedings before April 24, 1996. (h) Availability of section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes. (1) Pleas before April 24, 1996. nolo contendere (2) Pleas between April 24, 1996 and April 1, 1997. nolo contendere (3) Please on or after April 1, 1997. [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; 69 FR 57834, Sept. 28, 2004] § 1212.4 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). (f) Action upon alien's arrival. (g) Authorizations issued to crewmen without limitation as to period of validity. (h) Revocation. (i) Alien witnesses and informants Waivers under section 212(d)(1) of the Act. (2) Grounds of removal. [29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28, 1965; 31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb. 17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21, 1975; 51 FR 32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995; 67 FR 71448, Dec. 2, 2002] § 1212.5 Parole of aliens into the United States. Procedures and standards for the granting of parole by the Department of Homeland Security can be found at 8 CFR 212.5. [69 FR 69497, Nov. 29, 2004] § 1212.6 Border crossing identification cards. The regulations of the Department of Homeland Security pertaining to border crossing identification cards can be found at 8 CFR 212.6. [81 FR 92367, Dec. 19, 2016] § 1212.7 Waiver of certain grounds of inadmissibility. (a) General Filing procedure Immigrant visa or K nonimmigrant visa applicant. (ii) Adjustment of status applicant. (iii) Parole authorization applicant under § 1245.15(t). (iv) Parole authorization applicant under § 1245.13(k)(2) of this chapter. (2) Termination of application for lack of prosecution. (3) Decision. (4) Validity. (b) Section 212(g) (tuberculosis and certain mental conditions) General. (2) Locations for filing Form I-601. (i) The American consulate where the application for a visa is being considered if the alien is outside the United States; (ii) The Service office having jurisdiction over the port of entry where the alien is applying for admission into the United States; (iii) The Service office having jurisdiction over the alien if the alien is in the United States; (iv) The Nebraska Service Center, if the alien is outside the United States and seeking parole authorization under § 1245.15(t)(2) of this chapter; or (v) The Texas Service Center if the alien is outside the United States and is seeking parole authorization under § 1245.13(k)(2) of this chapter. (3) Section 212(a)(6) (tuberculosis). (4) 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. (5) 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 Form I-612. 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 8 CFR chapter I. 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) Eligibility 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. (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. § 1212.8 Certification requirement of section 212(a)(14). (a) General. (b) Aliens not required to obtain labor certifications. [31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at 34 FR 5326, Mar. 18, 1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566, Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR 44990, Oct. 13, 1982; 48 FR 19157, Apr. 28, 1983] § 1212.9 Applicability of section 212(a)(32) to certain derivative third and sixth preference and nonpreference immigrants. A derivative beneficiary who is the spouse or child of a qualified third or sixth preference or nonpreference immigrant and who is also a graduate of a medical school as defined by section 101(a)(41) of the Act is not considered to be an alien who is coming to the United States principally to perform services as a member of the medical profession. Therefore, a derivative third or sixth preference or nonpreference immigrant under section 203(a)(8) of the Act, who is also a graduate of a medical school, is eligible for an immigrant visa or for adjustment of status under section 245 of the Act, whether or not such derivative immigrant has passed Parts I and II of the National Board of Medical Examiners Examination or equivalent examination. (Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C 1103, 1153(a)(8), and 1182(a)(32)) [45 FR 63836, Sept. 26, 1980] § 1212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is excludable under sections 212(a)(14), (20), or (21) of the Act, may apply to the district director at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied by the district director, the application may be renewed in exclusion proceedings before an immigration judge as provided in part 1236 of this chapter. (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) [47 FR 44236, Oct. 7, 1982] § 1212.11 Controlled substance convictions. In determining the admissibility of an alien who has been convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, the term controlled substance et seq., et seq. controlled substance [53 FR 9282, Mar. 22, 1988] § 1212.12 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] § 1212.13 Severability. The provisions of part 1212 are separate and severable from one another. In the event that any provision in part 1212 is stayed, enjoined, not implemented, or otherwise held invalid, the remaining provisions shall nevertheless be implemented as an independent rule and continue in effect. [85 FR 80400, Dec. 11, 2020] § 1212.14 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, a completed Form I-854, Inter-Agency Alien Witness and Informant Record, 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 chapter I. (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 a completed Form I-854 to the Assistant Attorney General, Criminal Division. Upon the submission to the Assistant Attorney General of the Form I-854 requesting 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 a Form I-854. (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 85 FR 80400, Dec. 11, 2020] § 1212.15 Certificates for foreign health care workers. (a) Inadmissible aliens. (b) Inapplicability of the ground of inadmissibility. (1) Aliens seeking admission to the United States to perform services in a non-clinical health care occupation. A non-clinical health-care occupation is one where 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, managers of health care facilities, and medical consultants to the insurance industry; (2) The spouse and dependent children of any immigrant alien who is seeking to immigrate in order to accompany or follow to join the principal alien; and (3) Any alien applying for adjustment of status to that of a permanent resident under any provision of law other than an alien who is seeking to immigrate on the basis of an employment-based immigrant visa petition which was filed for the purpose of obtaining the alien's services in a health care occupation described in paragraph (c) of this section. (c) Occupations affected by this provision. (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 the certificate. (e) Organizations approved by the Service to issue certificates for health care workers. (2) The National Board for Certification in Occupational Therapy is authorized by the Service to issue certificates under section 343 for the occupation of occupational therapist. (3) The Foreign Credentialing Commission on Physical Therapy is authorized by the Service to issue certificates under section 343 for the occupation of physical therapist. (f) Contents of the certificate. (1) The name and address of the certifying organization; (2) A point of contact where the organization may be contacted in order to verify the validity of the certificate; (3) The date of the certificate was issued; (4) The occupation for which the certificate was issued; (5) The alien's name, and date and place of birth; (6) Verification that the alien's education, training, license, and experience are comparable with that required for an American health care worker of the same type; (7) Verification that the alien's education, training, license, and experience are authentic and, in the case of a license, unencumbered; (8) Verification that the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States as an immigrant under section 203(b) of the Act. This verification is not binding on the Service; and (9) Verification 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 certificate is issued, or that the alien has passed the occupation's licensing or certification examination. (g) English testing requirement. (2) Aliens exempt from the English language requirement. (3) Approved testing services. (ii) Test of English as a Foreign Language, Educational Testing Service (ETS). (4) Passing scores for various occupations Occupational and physical therapists. (ii) Registered nurses. (iii) Licensed practical nurses and licensed vocational nurses. (iv) Speech-language pathologists and Audiologists, medical technologists (clinical laboratory scientists), and physician assistants. (v) Medical technicians (clinical laboratory technicians). [63 FR 55011, Oct. 14, 1998, as amended at 64 FR 23177, Apr. 30, 1999; 66 FR 3444, Jan. 16, 2001] § 1212.16 Applications for exercise of discretion relating to T nonimmigrant status. (a) Filing the waiver application. (b) Treatment of waiver application. (2) In the case of applicants inadmissible on criminal and related grounds under section 212(a)(2) of the Act, the Service will only exercise its discretion in exceptional cases unless the criminal activities rendering the alien inadmissible were caused by or were incident to the victimization described under section 101(a)(15)(T)(i) of the Act. (3) An application for waiver of a ground of inadmissibility for T nonimmigrant status (other than under section 212(a)(6) of the Act) will be granted only in exceptional cases when the ground of inadmissibility would prevent or limit the ability of the applicant to adjust to permanent resident status after the conclusion of 3 years. (4) The Service shall have sole discretion to grant or deny a waiver, and there shall be no appeal of a decision to deny a waiver. However, nothing in this paragraph (b) is intended to prevent an applicant from re-filing a request for a waiver of a ground of inadmissibility in appropriate cases. (c) Incident to victimization. (d) Revocation. [67 FR 4795, Jan. 31, 2002]