8cfr212.1

Pt. 212

8 CFR Ch. I (1–1–04 Edition)

(c) Eligibility for benefits under the immigration and nationality laws. Until he
or she has taken up residence in the
United States, an alien commuter cannot satisfy the residence requirements
of the naturalization laws and cannot
qualify for any benefits under the immigration laws on his or her own behalf or on behalf of his or her relatives
other than as specified in paragraph (a)
of this section. When an alien commuter takes up residence in the United
States, he or she shall no longer be regarded as a commuter. He or she may
facilitate proof of having taken up such
residence by notifying the Service as
soon as possible, preferably at the time
of his or her first reentry for that purpose. Application for issuance of a new
Permanent Resident Card to show that
he or she has taken up residence in the
United States shall be made on Form I–
90.
[62 FR 10346, Mar. 6, 1997, as amended at 63
FR 70315, Dec. 21, 1998]

PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
Sec.
212.1 Documentary requirements for nonimmigrants.
212.2 Consent to reapply for admission after
deportation, removal or departure at
Government expense.
212.3 Application for the exercise of discretion under section 212(c).
212.4 Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3).
212.5 Parole of aliens into the United
States.
212.6 Border crossing identification cards.
212.7 Waiver of certain grounds of inadmissibility.
212.8 Certification requirement of section
212(a)(14).
212.9 Applicability of section 212(a)(32) to
certain derivative third and sixth preference and nonpreference immigrants.
212.10 Section 212(k) waiver.
212.11 Controlled substance convictions.
212.12 Parole determinations and revocations respecting Mariel Cubans.
212.13 [Reserved]
212.14 Parole determinations for alien witnesses and informants for whom a law
enforcement authority (‘‘LEA’’) will request S classification.

212.15 Certificates for foreign health care
workers.
212.16 Applications for exercise of discretion relating to T nonimmigrant status.
AUTHORITY: 8 U.S.C. 1101 and note, 1102,
1103, 1182 and note, 1184, 1187, 1223, 1225, 1226,
1227.
SOURCE: 17 FR 11484, Dec. 19, 1952, unless
otherwise noted.

§ 212.1 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) Citizens of Canada or Bermuda, Bahamian nationals or British subjects resident in certain islands—(1) Canadian citizens. A passport is not required except
after a visit outside of the Western
Hemisphere. A visa is not required.
(2) Citizens of the British Overseas Territory of Bermuda. A passport is not required except after a visit outside of
the Western Hemisphere. A visa is not
required.
(3) Bahamian nationals or British subjects resident in the Bahamas. A passport
is required. A visa required of such an
alien unless, prior to or at the time of
embarkation for the United States on a
vessel or aircraft, the alien satisfied
the examining U.S. immigration officer
at the Bahamas, that he or she is clearly and beyond a doubt entitled to admission, under section 212(a) of the Immigration and Nationality Act, in all
other respects.
(4) British subjects resident in the Cayman Islands or in the Turks and Caicos
Islands. A passport is required. A visa
is required of such an alien unless he or
she arrives directly from the Cayman
Islands or the Turks and Caicos Islands
and presents a current certificate from
the Clerk of Court of the Cayman Islands or the Turks and Caicos Islands
indicating no criminal record.

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Immigration and Naturalization Service, DHS
(b) Certain Caribbean residents—(1)
British, French, and Netherlands nationals, and nationals of certain adjacent islands of the Caribbean which are independent countries. A visa is not required
of a British, French, or Netherlands national, or of a national of Barbados,
Grenada, Jamaica, or Trinidad and Tobago, who has his or her residence in
British, French, or Netherlands territory located in the adjacent islands of
the Caribbean area, or in Barbados,
Grenada, Jamaica, or Trinidad and Tobago, who:
(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. A visa is not required of a national of the British Virgin Islands who
has his or her residence in the British
Virgin Islands, if:
(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-ofentry 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 issued by the
Royal Virgin Islands Police Department indicating that he or she has no
criminal record.
(c) Mexican nationals. (1) A visa and a
passport are not required of a Mexican
national who:

§ 212.1

(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 DOSissued DSP–150 containing a machinereadable 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

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§ 212.1

8 CFR Ch. I (1–1–04 Edition)

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. A visa and a passport are
not required of an alien employed either directly or indirectly on the construction, operation, or maintenance of
works in the United States undertaken
in accordance with the treaty concluded on February 3, 1944, between the
United States and Mexico regarding
the functions of the International
Boundary and Water Commission, and
entering the United States temporarily
in connection with such employment.
(d) Citizens of the Freely Associated
States, formerly Trust Territory of the Pacific Islands. Citizens of the Republic of
the Marshall Islands and the Federated
States of Micronesia may enter into,
lawfully engage in employment, and
establish residence in the United
States and its territories and possessions without regard to paragraphs
(14), (20) and (26) of section 212(a) of the
Act pursuant to the terms of Pub. L.
99–239. Pending issuance by the aforementioned governments of travel documents to eligible citizens, travel documents previously issued by the Trust
Territory of the Pacific Islands will
continue to be accepted for purposes of
identification and to establish eligibility for admission into the United
States, its territories and possessions.
(e) Aliens entering Guam pursuant to
section 14 of Pub. L. 99–396, ‘‘Omnibus
Territories Act.’’ (1) A visa is not required of an alien who is a citizen of a
country enumerated in paragraph (e)(3)
of this section who:
(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

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Immigration and Naturalization Service, DHS
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 as used in
8 CFR 212.1(e)(1) when applied to Taiwan refers only to residents of Taiwan
who are in possession of Taiwan National Identity Cards and a valid Taiwan passport with a valid re-entry permit issued by the Taiwan Ministry of
Foreign Affairs. It does not refer to
any other holder of a Taiwan passport
or a passport issued by the People’s Republic of China.
(4) Admission under this section 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, 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,

§ 212.1

(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.
(1)–(2) [Reserved]
(3) Foreign government officials in transit. If an alien is of the class described
in section 212(d)(8) of the Act, only a
valid unexpired visa and a travel document valid for entry into a foreign
country for at least 30 days from the
date of admission to the United States
are required.
(g) Unforeseen emergency. A nonimmigrant seeking admission to the
United States must present an unexpired visa and a passport valid for the
amount of time set forth in section
212(a)(7)(B) of the Act or a valid biometric border crossing card, issued by
the DOS on Form DSP–150, at the time
of application for admission, unless the
nonimmigrant satisfies the requirements described in one or more of the
paragraphs (a) through (f),(i) or (o) of
this section. Upon a nonimmigrant’s
application on Form I–193, Application
for Waiver of Passport and/or Visa, a
district director may, in the exercise of
his or her discretion, on a case-by-case
basis, waive the documentary requirements if satisfied that the nonimmigrant cannot present the required
documents because of an unforeseen
emergency. The district director or the
Deputy Commissioner may at any time
revoke a waiver previously authorized
pursuant to this paragraph and notify
the nonimmigrant in writing to that
effect.
(h) Nonimmigrant spouses, fiance´es,
fiance´s, and children of U.S. citizens.
Notwithstanding any of the provisions
of this part, an alien seeking admission
as a spouse, fiance´e, fiance´, or child of
a U.S. citizen, or as a child of the
spouse, fiane´, or finace´e of a U.S. citizen, pursuant to section 101(a)(15)(K)

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§ 212.2

8 CFR Ch. I (1–1–04 Edition)

of the Act shall be in possession of an
unexpired nonimmigrant visa issued by
an
American
consular
officer
classifying the alien under that section, or be inadmissible under section
212(a)(7)(B) of the Act.
(i) Visa Waiver Pilot Program. A visa is
not required of any alien who is eligible to apply for admission to the
United States as a Visa Waiver Pilot
Program applicant pursuant to the provisions of section 217 of the Act and
part 217 of this chapter if such alien is
a national of a country designated
under the Visa Waiver Pilot Program,
who seeks admission to the United
States for a period of 90 days or less as
a visitor for business or pleasure.
(j) Officers authorized to act upon recommendations of United States consular
officers for waiver of visa and passport requirements. All district directors, the
officers in charge are authorized to act
upon recommendations made by United
States consular officers or by officers
of the Visa Office, Department of
State, pursuant to the provisions of 22
CFR 41.7 for waiver of visa and passport requirements under the provisions
of section 212(d)(4)(A) of the Act. The
District Director at Washington, DC,
has jurisdiction in such cases recommended to the Service at the seat of
Government level by the Department
of State. Neither an application nor fee
are required if the concurrence in a
passport or visa waiver is requested by
a U.S. consular officer or by an officer
of the Visa Office. The district director
or the Deputy Commissioner, may at
any time revoke a waiver previously
authorized pursuant to this paragraph
and notify the nonimmigrant alien in
writing to that effect.
(k) Cancellation of nonimmigrant visas
by immigration officers. Upon receipt of
advice from the Department of State
that a nonimmigrant visa has been revoked or invalidated, and request by
that Department for such action, immigration officers shall place an appropriate endorsement thereon.
(l) Treaty traders and investors. Notwithstanding any of the provisions of
this part, an alien seeking admission as
a treaty trader or investor under the
provisions of Chapter 16 of the North
American
Free
Trade
Agreement
(NAFTA)
pursuant
to
section

101(a)(15)(E) of the Act, shall be in possession of a nonimmigrant visa issued
by an American consular officer
classifying the alien under that section.
(m) Aliens in S classification. Notwithstanding any of the provisions of this
part, an alien seeking admission pursuant to section 101(a)(15)(S) of the Act
must be in possession of appropriate
documents issued by a United States
consular officer classifying the alien
under that section.
(n) Alien in Q–2 classification. Notwithstanding any of the provisions of
this part, an alien seeking admission as
a principal according to section
101(a)(15)(Q)(ii) of the Act must be in
possession of a Certification Letter
issued by the Department of State’s
Program Administrator documenting
participation in the Irish peace process
cultural and training programs.
(o) Alien in T–2 through T–4 classification. Individuals seeking T–2 through
T–4 nonimmigrant status may avail
themselves of the provisions of paragraph (g) of this section, except that
the authority to waive documentary
requirements resides with the Service
Center.
(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 citations affecting § 212.1, see the List of CFR
Sections Affected, which appears in the
Finding Aids section in the printed volume
and on GPO Access.

§ 212.2 Consent to reapply for admission after deportation, removal or
departure at Government expense.
(a) Evidence. Any alien who has been
deported or removed from the United
States is inadmissible to the United
States unless the alien has remained
outside of the United States for five
consecutive years since the date of deportation or removal. If the alien has
been convicted of an aggravated felony,
he or she must remain outside of the
United States for twenty consecutive
years from the deportation date before
he or she is eligible to re-enter the
United States. Any alien who has been
deported or removed from the United

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