[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]