[Code of Federal Regulations]
[Title 22, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR40.1]

[Page 161-163]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 40_REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS 
UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents
 
                      Subpart A_General Provisions
 
Sec. 40.1  Definitions.




                      Subpart A_General Provisions

Sec.
40.1 Definitions.
40.2 Documentation of nationals.
40.3 Entry into areas under U.S. administration.
40.4 Furnishing records and information from visa files for court 
          proceedings.
40.5 Limitations on the use of National Crime Information Center (NCIC) 
          criminal history information.
40.6 Basis for refusal.
40.7-40.8 [Reserved]
40.9 Classes of inadmissible aliens.

               Subpart B_Medical Grounds of Ineligibility

40.11 Medical grounds of ineligibility.
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.
40.22 Multiple criminal convictions.
40.23 Controlled substance traffickers. [Reserved]
40.24 Prostitution and commercialized vice.
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.
40.35 Participants in Nazi persecutions or genocide. [Reserved]
40.36-40.39 [Reserved]

                         Subpart E_Public Charge

40.41 Public charge.
40.42-40.49 [Reserved]

 Subpart F_Labor Certification and Qualification for Certain Immigrants

40.51 Labor certification.
40.52 Unqualified physicians.
40.53 Uncertified foreign health-care workers.
40.54-40.59 [Reserved]

          Subpart G_Illegal Entrants and Immigration Violators

40.61 Aliens present without admission or parole.
40.62 Failure to attend removal proceedings.
40.63 Misrepresentation; Falsely claiming citizenship.
40.64 Stowaways.
40.65 Smugglers.
40.66 Subject of civil penalty.
40.67 Student visa abusers.
40.68 Aliens subject to INA 222(g).
40.69 [Reserved]

                  Subpart H_Documentation Requirements

40.71 Documentation requirements for immigrants.
40.72 Documentation requirements for nonimmigrants.
40.73-40.79 [Reserved]

                  Subpart I_Ineligible for Citizenship

40.81 Ineligible for citizenship.
40.82 Alien who departed the United States to avoid service in the Armed 
          Forces.
40.83-40.89 [Reserved]

                   Subpart J_Aliens Previously Removed

40.91 Certain aliens previously removed.
40.92 Aliens unlawfully present.
40.93 Aliens unlawfully present after previous immigration violation.
40.94-40.99 [Reserved]

                         Subpart K_Miscellaneous

40.101 Practicing polygamists.
40.102 Guardian required to accompany excluded alien.
40.103 International child abduction.
40.104 Unlawful voters.
40.105 Former citizens who renounced citizenship to avoid taxation.
40.106-40.110 [Reserved]

                  Subpart L_Failure to Comply with INA

40.201 Failure of application to comply with INA.
40.202 Certain former exchange visitors.
40.203 Alien entitled to A, E, or G nonimmigrant classification.
40.204 [Reserved]
40.205 Applicant for immigrant visa under INA 203(c).
40.206 Frivolous applications. [Reserved]

[[Page 162]]

40.207-40.210 [Reserved]

               Subpart M_Waiver of Ground of Ineligibility

40.301 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).

    Authority: 8 U.S.C. 1104.

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted.



    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 means not only an alien in 
the physical company of a principal alien but also an alien who is 
issued an immigrant visa within 6 months of:
    (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 means the Immigration and Nationality Act (or INA), as 
amended.
    (c) Competent officer, as used in INA 101(a)(26), means a ``consular 
officer'' as defined in INA 101(a)(9).
    (d) Consular officer, as defined in INA 101(a)(9) includes 
commissioned consular officers and the Deputy Assistant Secretary for 
Visa Services, and such other officers as the Deputy Assistant Secretary 
may designate for the purpose of issuing nonimmigrant and immigrant 
visas, but does not include a consular agent, an attache or an assistant 
attache. For purposes of this regulation, the term ``other officers'' 
includes civil service visa examiners employed by the Department of 
State for duty at visa-issuing offices abroad, upon certification by the 
chief of the consular section under whose direction such examiners are 
employed that the examiners are qualified by knowledge and experience to 
perform the functions of a consular officer in the issuance or refusal 
of visas. The designation of visa examiners shall expire upon 
termination of the examiners' employment for such duty and may be 
terminated at any time for cause by the Deputy Assistant Secretary. The 
assignment by the Department of any foreign service officer to a 
diplomatic or consular office abroad in a position administratively 
designated as requiring, solely, partially, or principally, the 
performance of consular functions, and the initiation of a request for a 
consular commission, constitutes designation of the officer as a 
``consular officer'' within the meaning of INA 101(a)(9).
    (e) Department means the Department of State of the United States of 
America.
    (f) Dependent area means a colony or other component or dependent 
area overseas from the governing foreign state.
    (g) Documentarily qualified means that the alien has reported that 
all the documents specified by the consular officer as sufficient to 
meet the requirements of INA 222(b) have been obtained, and the consular 
office has completed the necessary clearance procedures. This term is 
used only with respect to the alien's qualification to apply formally 
for an immigrant visa; it bears no connotation that the alien is 
eligible to receive a visa.
    (h) Entitled to immigrant classification means that the alien:
    (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 Sec. 40.51(c).
    (i) Foreign state, for the purposes of alternate chargeability 
pursuant to INA 202(b), is not restricted to those areas to which the 
numerical limitation prescribed by INA 202(a) applies

[[Page 163]]

but includes dependent areas, as defined in this section.
    (j) INA means the Immigration and Nationality Act, as amended.
    (k) INS means the Immigration and Naturalization Service.
    (l) Make or file an application for a visa means:
    (1) For a nonimmigrant visa applicant, submitting for formal 
adjudication by a consular officer of a completed Form OF-156, with any 
required supporting documents and 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 the Form OF-230 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 means born within the territory of a foreign state, or 
entitled to be charged for immigration purposes to that foreign state 
pursuant to INA section 202(b).
    (n) Not subject to numerical limitation means that the alien is 
entitled to immigrant status as an immediate relative within the meaning 
of INA 201(b)(2)(i), or as a special immigrant within the meaning of INA 
101(a)(27) (A) and (B), unless specifically subject to a limitation 
other than under INA 201(a), (b), or (c).
    (o) Parent, father, and mother, as defined in INA 101(b)(2), are 
terms which are not changed in meaning if the child becomes 21 years of 
age or marries.
    (p) Port of entry means a port or place designated by the 
Commissioner of Immigration and Naturalization at which an alien may 
apply to INS for admission into the United States.
    (q) Principal alien means an alien from whom another alien derives a 
privilege or status under the law or regulations.
    (r) Regulation means a rule which is established under the 
provisions of INA 104(a) and is duly published in the Federal Register.
    (s) Son or daughter includes only a person who would have qualified 
as a ``child'' under INA 101(b)(1) if the person were under 21 and 
unmarried.
    (t) Western Hemisphere means North America (including Central 
America), South America and the islands immediately adjacent thereto 
including the places named in INA 101(b)(5).

[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]