PART 40—REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED Authority: 8 U.S.C. 1104, 1182, 1183a, 1641 Source: 56 FR 30422, July 2, 1991, unless otherwise noted. Editorial Note: Nomenclature changes to part 40 appear at 71 FR 34520 and 34521, June 15, 2006. Subpart A—General Provisions § 40.1 Definitions. The following definitions supplement definitions contained in the Immigration and Nationality Act (INA). As used in the regulations in parts 40, 41, 42, 43 and 45 of this subchapter, the term: (a)(1) Accompanying or accompanied by (i) The date of issuance of a visa to the principal alien; (ii) The date of adjustment of status in the United States of the principal alien; or (iii) The date on which the principal alien personally appears and registers before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. (2) An “accompanying” relative may not precede the principal alien to the United States. (b) Act (c) Competent officer, (d) Consular officer, (e) Department (f) Dependent area (g) DHS (h) Documentarily qualified (i) Entitled to immigrant classification (1) Is the beneficiary of an approved petition granting immediate relative or preference status; (2) Has satisfied the consular officer as to entitlement to special immigrant status under INA 101(a)(27) (A) or (B); (3) Has been selected by the annual selection system to apply under INA 203(c); or (4) Is an alien described in § 40.51(c). (j) Foreign state, (k) INA (l) Make or file an application for a visa (1) For a nonimmigrant visa applicant, submitting for formal adjudication by a consular officer of an electronic application, Form DS-160, signed electronically by clicking the box designated “Sign Application” in the certification section of the application or, as directed by a consular officer, a completed Form DS-156, with any required supporting documents and biometric data, as well as the requisite processing fee or evidence of the prior payment of the processing fee when such documents are received and accepted for adjudication by the consular officer. (2) For an immigrant visa applicant, personally appearing before a consular officer and verifying by oath or affirmation the statements contained on Form DS-230 or Form DS-260 and in all supporting documents, having previously submitted all forms and documents required in advance of the appearance and paid the visa application processing fee. (m) Native (n) Not subject to numerical limitation (o) Parent, father, and mother, (p) Port of entry (q) Principal alien (r) Regulation Federal Register. (s) Son or daughter (t) Western Hemisphere [56 FR 30422, July 2, 1991, as amended at 56 FR 43552, Sept. 3, 1991; 59 FR 15300, Mar. 31, 1994; 61 FR 1835, Jan. 24, 1996; 64 FR 55418, Oct. 13, 1999; 65 FR 54413, Sept. 8, 2000; 71 FR 34520, June 15, 2006; 73 FR 23068, Apr. 29, 2008; 75 FR 45476, Aug. 3, 2010] § 40.2 Documentation of nationals. (a) Nationals of the United States. (b) Former Nationals of the United States. § 40.3 Entry into areas under U.S. administration. An immigrant or nonimmigrant seeking to enter an area which is under U.S. administration but which is not within the “United States”, as defined in INA 101(a)(38), is not required by the INA to be documented with a visa unless the authority contained in INA 215 has been invoked. § 40.4 Furnishing records and information from visa files for court proceedings. Upon receipt of a request for information from a visa file or record for use in court proceedings, as contemplated in INA 222(f), the consular officer must, prior to the release of the information, submit the request together with a full report to the Department. § 40.5 Limitations on the use of National Crime Information Center (NCIC) criminal history information. (a) Authorized access. (b) Use of information. (c) Confidentiality and protection of records. [67 FR 8478, Feb. 25, 2002] § 40.6 Basis for refusal. A visa can be refused only upon a ground specifically set out in the law or implementing regulations. The term “reason to believe”, as used in INA 221(g), shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations. Consideration shall be given to any evidence submitted indicating that the ground for a prior refusal of a visa may no longer exist. The burden of proof is upon the applicant to establish eligibility to receive a visa under INA 212 or any other provision of law or regulation. §§ 40.7-40.8 [Reserved] § 40.9 Classes of inadmissible aliens. Subparts B through L describe classes of inadmissible aliens who are ineligible to receive visas and who shall be ineligible for admission into the United States, except as otherwise provided in the Immigration and Nationality Act, as amended. [61 FR 59184, Nov. 21, 1996] Subpart B—Medical Grounds of Ineligibility § 40.11 Medical grounds of ineligibility. (a) Decision on eligibility based on findings of medical doctor. (b) Waiver of ineligibility—INA 212(g). (c) Waiver authority—INA 212(g)(2)(A) and (B). [56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997] §§ 40.12-40.19 [Reserved] Subpart C—Criminal and Related Grounds—Conviction of Certain Crimes § 40.21 Crimes involving moral turpitude and controlled substance violators. (a) Crimes involving moral turpitude Acts must constitute a crime under criminal law of jurisdiction where they occurred. (2) Conviction for crime committed under age 18. (A) Prior to the alien's fifteenth birthday, or (B) Between the alien's fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code. (ii) An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, will be subject to the provisions of INA 212(a)(2)(A)(i)(I) regardless of whether at the time of conviction juvenile courts existed within the convicting jurisdiction. (3) Two or more crimes committed under age 18. (4) Conviction in absentia. (5) Effect of pardon by appropriate U.S. authorities/foreign states. (6) Political offenses. (7) Waiver of ineligibility—INA 212(h). (b) Controlled substance violators Date of conviction not pertinent. (2) Waiver of ineligibility—INA 212(h). [56 FR 30422, July 2, 1991, as amended at 64 FR 55418, Oct. 13, 1999; 89 FR 67859, Aug. 22, 2024] § 40.22 Multiple criminal convictions. (a) Conviction(s) for crime(s) committed under age 18. (b) Conviction in absentia. (c) Effect of pardon by appropriate U.S. authorities/foreign states. (d) Political offense. (e) Waiver of ineligibility—INA 212(h). [56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997; 89 FR 67859, Aug. 22, 2024] § 40.23 Controlled substance traffickers. [Reserved] § 40.24 Prostitution and commercialized vice. (a) Activities within 10 years preceding visa application. (1) The alien is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution, or the alien directly or indirectly procures or attempts to procure, or procured or attempted to procure or to import prostitutes or persons for the purposes of prostitution, or receives or received, in whole or in part, the proceeds of prostitution; and (2) The alien has performed one of the activities listed in § 40.24(a)(1) within the last ten years. (b) Prostitution defined. (c) Where prostitution not illegal. (d) Waiver of ineligibility—INA 212(h). § 40.25 Certain aliens involved in serious criminal activity who have asserted immunity from prosecution. [Reserved] §§ 40.26-40.29 [Reserved] Subpart D—Security and Related Grounds § 40.31 General. [Reserved] § 40.32 Terrorist activities. [Reserved] § 40.33 Foreign policy. [Reserved] § 40.34 Immigrant membership in totalitarian party. (a) Definition of affiliate. affiliate, affiliate affiliate. (b) Service in Armed Forces. (c) Voluntary Service in a Political Capacity. (d) Voluntary Membership After Age 16. (e) Operation of Law Defined. operation of law, (f) Membership in Organization Advocating Totalitarian Dictatorship in the United States. totalitarian party (g) Waiver of ineligibility—212(a)(3)(D)(iv). § 40.35 Participants in Nazi persecutions or genocide. (a) Participation in Nazi persecutions. (b) Participation in genocide. §§ 40.36-40.39 [Reserved] Subpart E—Public Charge § 40.41 Public charge. (a) Basis for determination of ineligibility. (b) Affidavit of support. (c) Joint sponsors. (d) Posting of bond. (e) Prearranged employment. (f) Use of Federal poverty line Where INA 213A not applicable. [88 FR 60582, Sept. 5, 2023] §§ 40.42-40.49 [Reserved] Subpart F—Labor Certification and Qualification for Certain Immigrants § 40.51 Labor certification. (a) INA 212(a)(5) applicable only to certain immigrant aliens. (b) Determination of need for alien's labor skills. (1) There are not sufficient workers in the United States who are able, willing, qualified, (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts) and available at the time of application for a visa and at the place to which the alien is destined to perform such skilled or unskilled labor, and (2) The employment of such alien will not adversely affect the wages and working conditions of the workers in the United States similarly employed. (c) Labor certification not required in certain cases. [56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996] § 40.52 Unqualified physicians. INA 212(a)(5)(B) applies only to immigrant aliens described in INA 203(b) (2) or (3). [61 FR 1835, Jan. 24, 1996, as amended at 62 FR 67567, Dec. 29, 1997] § 40.53 Uncertified foreign health-care workers. (a) Subject to paragraph (b) of this section, a consular officer must not issue a visa to any alien seeking admission to the United States for the purpose of performing services in a health care occupation, other than as a physician, unless, in addition to meeting all other requirements of law and regulation, the alien provides to the officer a certification issued by the Commission On Graduates of Foreign Nursing Schools (CGFNS) or another credentialing service that has been approved by the Secretary of Homeland Security for such purpose, which certificate complies with the provisions of sections 212(a)(5)(C) and 212(r) of the Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. 1182(r), respectively, and the regulations found at 8 CFR 212.15. (b) Paragraph (a) of this section does not apply to an alien: (1) Seeking to enter the United States in order to perform services in a non-clinical health care occupation as described in 8 CFR 212.15(b)(1); or (2) Who is the immigrant or nonimmigrant spouse or child of a foreign health care worker and who is seeking to accompany or follow to join as a derivative applicant the principal alien to whom this section applies; or (3) Who is applying for an immigrant or a nonimmigrant visa for any purpose other than for the purpose of seeking entry into the United States in order to perform health care services as described in 8 CFR 212.15. [67 FR 77159, Dec. 17, 2002] §§ 40.54-40.59 [Reserved] Subpart G—Illegal Entrants and Immigration Violators § 40.61 Aliens present without admission or parole. INA 212(a)(6)(A)(i) does not apply at the time of visa issuance. [62 FR 67567, Dec. 29, 1997] § 40.62 Failure to attend removal proceedings. An alien who without reasonable cause failed to attend, or to remain in attendance at, a hearing initiated on or after April 1, 1997, under INA 240 to determine inadmissibility or deportability shall be ineligible for a visa under INA 212(a)(6)(B) for five years following the alien's subsequent departure or removal from the United States. [62 FR 67567, Dec. 29, 1997] § 40.63 Misrepresentation; falsely claiming citizenship. (a) Fraud and misrepresentation and INA 212(a)(6)(C) applicability to certain refugees. Provided, Provided further, (b) Misrepresentation in application under Displaced Persons Act or Refugee Relief Act. (c) Waiver of ineligibility—INA 212(i). [56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996] § 40.64 Stowaways. INA 212(a)(6)(D) is not applicable at the time of visa application. § 40.65 Smugglers. (a) General. (b) Waiver of ineligibility—INA 212(d)(11). § 40.66 Subject of civil penalty. (a) General. (b) Waiver of ineligibility. [62 FR 67567, Dec. 29, 1997] § 40.67 Student visa abusers. An alien ineligible under the provisions of INA 212(a)(6)(G) shall not be issued a visa unless the alien has complied with the time limitation set forth therein. [62 FR 67568, Dec. 29, 1997] § 40.68 Aliens subject to INA 222(g). An alien who, under the provisions of INA 222(g), has voided a nonimmigrant visa by remaining in the United States beyond the period of authorized stay is ineligible for a new nonimmigrant visa unless the alien complies with the requirements in 22 CFR 41.101 (b) or (c) regarding the place of application. [63 FR 671, Jan. 7, 1998] § 40.69 [Reserved] Subpart H—Documentation Requirements § 40.71 Documentation requirements for immigrants. INA 212(a)(7)(A) is not applicable at the time of visa application. (For waiver of documentary requirements for immigrants see 22 CFR 42.1 and 42.2.) § 40.72 Documentation requirements for nonimmigrants. A passport which is valid indefinitely for the return of the bearer to the country whose government issued such passport shall be deemed to have the required minimum period of validity as specified in INA 212(a)(7)(B). §§ 40.73-40.79 [Reserved] Subpart I—Ineligible for Citizenship. § 40.81 Ineligible for citizenship. An alien will be ineligible to receive an immigrant visa under INA 212(a)(8)(A) if the alien is ineligible for citizenship, including as provided in INA 314 or 315. [64 FR 55418, Oct. 13, 1999] § 40.82 Alien who departed the United States to avoid service in the armed forces. (a) Applicability to immigrants. (b) Applicability to nonimmigrants. §§ 40.83-40.89 [Reserved] Subpart J—Aliens Previously Removed Source: 61 FR 59184, Nov. 21, 1996, unless otherwise noted. § 40.91 Certain aliens previously removed. (a) 5-year bar. (b) 10-year bar. (c) 20-year bar. (d) Permanent bar. (e) Exceptions. [62 FR 67568, Dec. 29, 1997, as amended at 63 FR 64628, Nov. 23, 1998] § 40.92 Aliens unlawfully present. (a) 3-year bar. (b) 10-year bar. (c) Waiver. [62 FR 67568, Dec. 29, 1997] § 40.93 Aliens unlawfully present after previous immigration violation. An alien described in INA 212(a)(9)(C)(i) is permanently ineligible for a visa unless the Secretary of Homeland Security consents to the alien's application for readmission not less than 10 years following the alien's last departure from the United States. Such application for readmission shall be made prior to the alien's reembarkation at a place outside the United States. [62 FR 67568, Dec. 29, 1997] §§ 40.94-40.99 [Reserved] Subpart K—Miscellaneous Source: 56 FR 30422, July 2, 1991, unless otherwise noted. Redesignated at 61 FR 59184, Nov. 21, 1996. § 40.101 Practicing polygamists. An immigrant alien shall be ineligible under INA 212(a)(9)(A) only if the alien is coming to the United States to practice polygamy. § 40.102 Guardian required to accompany excluded alien. INA 212(a)(9)(B) is not applicable at the time of visa application. § 40.103 International child abduction. An alien who would otherwise be ineligible under INA 212(a)(9)(C)(i) shall not be ineligible under such paragraph if the U.S. citizen child in question is physically located in a foreign state which is party to the Hague Convention on the Civil Aspects of International Child Abduction. [61 FR 1833, Jan. 24, 1996] § 40.104 Unlawful voters. (a) Subject to paragraph (b) of this section, an alien is ineligible for a visa if the alien has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation. (b) Such alien shall not be considered to be ineligible under paragraph (a) of this section if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen. [70 FR 35527, June 21, 2005] § 40.105 Former citizens who renounced citizenship to avoid taxation. An alien who is a former citizen of the United States, who on or after September 30, 1996, has officially renounced United States citizenship and who has been determined by the Secretary of Homeland Security to have renounced citizenship to avoid United States taxation, is ineligible for a visa under INA 212(a)(10)(E). [62 FR 67568, Dec. 29, 1997] §§ 40.106-40.110 [Reserved] Subpart L—Failure to Comply with INA Source: 56 FR 30422, July 2, 1991, unless otherwise noted. Redesignated at 61 FR 59184, Nov. 21, 1996. § 40.201 Failure of application to comply with INA. (a) Refusal under INA 221(g). (1) The applicant fails to furnish information as required by law or regulations; (2) The application contains a false or incorrect statement other than one which would constitute a ground of ineligibility under INA 212(a)(6)(C); (3) The application is not supported by the documents required by law or regulations; (4) The applicant refuses to be fingerprinted as required by regulations; (5) The necessary fee is not paid for the issuance of the visa or, in the case of an immigrant visa, for the application therefor; (6) In the case of an immigrant visa application, the alien fails to swear to, or affirm, the application before the consular officer; or (7) The application otherwise fails to meet specific requirements of law or regulations for reasons for which the alien is responsible. (b) Reconsideration of refusals. [56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996. Redesignated at 61 FR 59184, Nov. 21, 1996] § 40.202 Certain former exchange visitors. An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, and who is within the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not eligible to apply for or receive an immigrant visa or a nonimmigrant visa under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval of a petition on the alien's behalf, unless: (a) It has been established that the alien has resided and has been physically present in the country of the alien's nationality or last residence for an aggregate of at least 2 years following the termination of the alien's exchange visitor status as required by INA 212(e), or (b) The foreign residence requirement of INA 212(e) has been waived by the Secretary of Homeland Security in the alien's behalf. § 40.203 Alien entitled to A, E, or G nonimmigrant classification. An alien entitled to nonimmigrant classification under INA 101(a)(15) (A), (E), or (G) who is applying for an immigrant visa and who intends to continue the activities required for such nonimmigrant classification in the United States is not eligible to receive an immigrant visa until the alien executes a written waiver of all rights, privileges, exemptions and immunities which would accrue by reason of such occupational status. § 40.204 [Reserved] § 40.205 Applicant for immigrant visa under INA 203(c). An alien shall be ineligible to receive a visa under INA 203(c) if the alien does not have a high school education or its equivalent, as defined in 22 CFR 42.33(a)(2), or does not have, within the five years preceding the date of application for such visa, at least two years of work experience in an occupation which requires at least two years of training or experience. [59 FR 55045, Nov. 3, 1994. Redesignated at 61 FR 59184, Nov. 21, 1996] § 40.206 Frivolous applications. [Reserved] §§ 40.207-40.210 [Reserved] Subpart M—Waiver of Ground of Ineligibility Source: 56 FR 30422, July 2, 1991, unless otherwise noted. Redesignated at 61 FR 59184, Nov. 21, 1996. § 40.301 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A). (a) Recommendations under INA 212(d)(3)(A)(i). (2) In response to a request from the Secretary of State, which shall be presumed to meet one of the criteria in paragraphs (a)(2)(i) through (v) of this section, or in response to a request from a visa applicant for a case that the consular officer has reason to believe meets one of the criteria in paragraphs (a)(2)(i) through (v), consular officers are required to submit a report to the Department for possible transmission to the designated DHS office pursuant to INA 212(d)(3)(A) in the case of an alien who is classifiable as a nonimmigrant but whom the consular officer knows or believes is ineligible to receive a nonimmigrant visa due to inadmissibility under the provisions of INA 212(a), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii). (i) Foreign Relations: (ii) National security. (iii) Law enforcement. (iv) Significant public interest. (v) Urgent humanitarian or medical reasons. (b) Recommendation to designated DHS office. (c) Secretary of Homeland Security may impose conditions. [84 FR 19714, May 6, 2019]